Probiotics, the food phenomenon sceptical campaigners love to hate, are back in the news.

In the US this week, food and drink group Danone agreed a settlement with the Federal Trade Commission (FTC), which had been investigating claims of misleading advertising for its probiotic products. The regulator said Dannon, the French company’s US arm, had agreed to remove “exaggerated” health claims for Activia yoghurt and DanActive dairy drinks, agreeing to cease claiming that one daily serving of Activia relieves “irregularity” and that DanActive helps people avoid catching colds or flu.

The FTC said the Dannon advertising was “deceptive” and the claims had been made without “substantiation”. Claims that Activia and DanActive were clinically proven were “false”, the FTC said.

For all the seriousness of false health claims, the probiotic sector does appear at least to put a smile on people’s faces. Even FTC chairman Jon Leibowitz was moved to say that such misleading claims were “enough to give consumers indigestion”. When hard-boiled regulators start punning with abandon, something must be happening.

Unlikely to be smiling will be Danone, which will be paying US$21m to 39 US states that had launched their own inquiries into the advertising of the products.

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Around this time last year, Dannon settled a class action in the US alleging that it had overstated the health attributes of Activia and DanActive in advertising, agreeing to set up a fund worth $35m to reimburse consumers who had bought the brands, and change the labelling and marketing of the products. Danone also had a TV ad for Actimel banned in the UK by the Advertising Standards Authority in late 2009.

The FTC settlement follows the publication of assessments of health claims in October by the European Food Safety Authority (EFSA), which cast further doubt on the claims made on behalf of probiotics.

EFSA found that no “cause and effect relationship” had been established between the consumption of the strains, Lactobacillus fermentum and Lactobacillus plantarum, in maintaining immune defences.

In another ruling on a dossier of 12 studies submitted by Yakult for its own strain of probiotic bacteria, Lactobacillus casei shirota, the EFSA panel found that all were “inadequate” to support the claim that its products maintained immune defences against the common cold. This followed similar EFSA rulings last year.

However, on a more positive note, EFSA held a meeting in Amsterdam earlier this month with representatives of the probiotic sector to explain the scientific requirements for health claims related to gut and immune function. While industry representatives acknowledged that some progress had been made, today (17 Dec) four probiotic industry groups have written to the European Commission and EFSA setting out their concerns over the EU’s health claim scrutiny process.

Marketers of probiotic foods and drinks are clearly determined to put over a message that their products are good for us but until they can produce studies that prove these claims to the satisfaction of regulators, that doggedness is proving costly, both financially and reputationally.

As it stands, whether or not to believe in the health-giving properties of probiotics appears to come down to a matter of consumer choice, or faith… a gut feeling even? It is, to judge by what EFSA and the like are saying, simply not being borne out by the independent evidence.

But while probiotic products may be accused of having something of the quack remedy about them, there are surely far worse villains out there than bifidus digestivum and its friends, which arguably make the world a cheerier place just by the silliness of their names, before any palliative effects on our tummies are taken into consideration.

And the placebo factor can’t be discounted. As with drugs, if a food ingredient is believed to be doing us good our minds and bodies are remarkably adept at taking over and doing the rest. Even in its response to the FTC, Dannon protested that millions of people “believe in” the health benefits of their products. As for what else some of those consumers might also believe in, probably best for Dannon not to go there.

Also, probiotics may not be as positively good for us as the makers claim but they are clearly not as bad for us as lots of things. Better a probiotic yoghurt for dessert than a banoffi pie or a sticky toffee pudding… apparently.

And on that note, as we enter the season of gastronomic excess and intestinal abuse, anything that may offer the slightest help with our digestion, however flimsy the evidence, may be gladly – or desperately – grasped and put to the test.