Toothless Measures

Posted By elissa on Apr 14, 2009 | 1 comment

I’ve discussed regulatory issues briefly before, although I might as well put my own feelings out here, for the record:

1. I am firmly against regulatory measures that would pull supplement compounds off the market until they can pass through some sort of draconian, bureaucratic testing/review process to prove they’re 1,000,000.995% safe and wholesome.
2. I am, however, perfectly amenable to holding manufacturers/retailers accountable for false or misleading claims about their products.  This shouldn’t require any new regs, however – just better funding and enforcement of existing ones.

This is why I often groan and roll my eyes when various self-appointed consumer advocates whinge about how DSHEA should be repealed and the FDA unshackled.  And it’s also why I wave my pom-pons and cheer wildly when the Feds finally crack down on companies like Berkeley Premium Nutraceuticals. 

It’s pretty simple, really…I like having choices and can’t stand con artists.  There are a lot of interesting supps out there, and I’m perfectly capable of evaluating the evidence.  Thus, it’s only natural that – for all its faults – I’m a strong supporter of the supplement industry, in principle.

Nonetheless, the industry often drives me up the wall… it’s like it has a death wish…the powers-that-be piously look the other way while bad actors (like Berkeley) make outlandish claims and rip off consumers, then act shocked – SHOCKED, I tell you – when the fallout inevitably lands on the industry as a whole.

Thus, my spirits were buoyed…at least briefly, by this industry news item…

NAD ‘NARC’s out FucoPure to FTC

04/07/2009
NEW YORK—The National Advertising Division (NAD) of the Council of Better Business Bureaus (BBB) is referring advertising for the nutritional ingredient FucoPure, from Elmwood Park, N.J.-based Nutraceuticals International, to FTC for review. Under its National Advertising Review Council (NARC) terms, NAD had asked the company for substantiation of certain claims for its product following a challenge to its advertising filed by Morristown, N.J.-based P.L. Thomas. Nutraceuticals International responded to NAD and received an extension to submit its substantiation, but did not submit by that deadline and has not participated further in the review process.

Claims at issue for FucoPure concerned its positioning as a clinically substantiated weight loss ingredient, as well as superiority and exclusivity claims for the fucoxanthin extract. NAD sought additional substantiation for disease claims related to combating obesity, hyperlipidemia and type II diabetes.

Initially, I thought this was pretty cool, and went over to www.nadreview.org to see what these guys were all about.  This is what I found:

As we enter the Information Age, it becomes more and more difficult to monitor the message content of advertisements. Businesses are encouraged to use the NAD to voice their concerns about potentially misleading national advertising claims.

NAD reviews only national advertisements — those ads disseminated on a nationwide or broadly regional basis. The advertising may be placed on broadcast or cable television, in radio, magazines and newspapers, on the Internet or commercial on-line services, or provided direct to the home or office. Product performance claims, superiority claims against competitive products and all kinds of scientific and technical claims in national advertising are the types of cases accepted by the NAD.

So far, so good… NAD provides a private alternative to litigation on advertising claims.  No, it’s not exclusive to the supp industry, but that’s just a detail…it certainly applies to it.  And the NAD really did refer the FucoPure folks to the FTC after they tried to stonewall a complaint investigation. 

I was prepared to be impressed…

Until I started looking at some of the resolved cases, like a complaint about the advertising for Schiff Nutrition Group’s Mega Red Omega-3 Krill Oil.

NAD recommended the advertiser discontinue claims that include “better, faster and more powerful than fish oil,” “3x better than fish oil for supporting cardiovascular health,” “MegaRed omega-3s are several times stronger than larger amounts of fish oil omega-3s,” and “Superior nutritional support when compared to the very best fish oils.”

Further, because there is no established dosage that is optimal for supporting cardiovascular health, and because all of the studies presented as evidence tested different amounts of oils, NAD recommended that the advertiser discontinue the claim that “just One MegaRed™ softgel = three fish oil softgels for supporting Cardiovascular Health.”

…Schiff Nutrition Group, in its advertiser’s statement, said that the company appreciated the opportunity to participate in the self-regulatory process “and thanks NAD for its consideration of this matter.”

While the company “respectfully disagrees with certain aspects of the NAD’s decision, it will nevertheless take into account NAD’s comments and recommendations in its future advertising.”

Uh-huh…looks to me like Schiff told NAD to go p*ss up a rope.  Respectfully, of course.  And – apparently – NAD is perfectly ok with that.  Schiff participated in the process and agreed to think about it…so everything’s copacetic.

Other disputes were like this too.  What this tells me is that NAD has little influence w/respect to compliance with its recommendations.  Agreeing to cooperate with an investigation doesn’t mean a company needs to follow through and make the suggested changes…which makes the process pretty toothless, if you ask me.  If they do, great – and if they don’t…well, whatever.

As a whole, the supp industry is making some half-hearted attempts at self-regulation, but it sure isn’t apparent from my vantage point:  many retailers still feel perfectly free to make all kinds of misleading and poorly unsupported claims in ads for their products.  Thus, half-assed “voluntary” processes like this one aren’t likely to be very helpful.  In my opinion, the industry could do itself a great big favor by setting – and ENFORCING – better advertising standards to help consumers evaluate claims…and to help regulators focus on the bad actors, vs. the industry as a whole.