Advertising Pill Poppin' For Health: Caution On This Slippery Slope

In my last article, we addressed one of the day's major issues in ethical advertising: overweight America and weight-loss claims from purveyors of miracle cures for the problem. If you missed it, click here and check it out, as is concerns your responsibility to be aware of activities and warnings from the Federal Trade Commission (FTC). Another important problem that the FTC is investigating in this area is food advertising without certain nutritional disclosures and Childhood Obesity and the Obligations of Food Marketers.

In a recent speech, FTC Commissioner Jon Leibowitz pointed out how many broadcast commercials kids are seeing these days. Talking about television, he said that in 2004,

children ages two to 11 saw on average more than 25,000 TV ads -- including about 5,500 food ads, mostly for "junk food." Certainly radio too has its share of those ads. We'll tackle that one in another article, with tips about what to be wary of in fast-food advertising.

This week however, I want to look at FTC tips on supplement advertising. This is an active area, with a lot of broadcast advertising. The Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) work together, but have divided their responsibilities regarding dietary supplements. While the FDA deals with matters involving the products themselves, such as product labeling, packaging, inserts and other promotional materials distributed at the point of sale, the FTC has primary responsibility for claims in advertising, including broadcast ads and Internet marketing.

Reviewing the FDA labeling regulations are instructive regarding permissible advertising claims ... and impermissible ones! Under the Dietary Supplements Health and Education Act (DSHEA) and the Food and Drug Administration Modernization Act of 1997 (FDAMA), a claim on a product label is permitted only if it is 1) a health claim specifically authorized by the FDA; 2) a statement of nutritional support; or 3) based on "authoritative statements" from certain federal scientific bodies. Health claims that relate to the nutrient and its effect on a disease or health-related condition must be supported by an FDA finding.

Otherwise, supplement marketers are prohibited from making any labeling claim about the diagnosis, mitigation, treatment or cure of a disease. In contrast to health claims, "statements of nutritional support," pertaining to the supplement's effect on the body for good health and nutrition are not subject to FDA pre-authorization. They do require notification to the FDA and a disclaimer that the claim has not been evaluated by FDA and that the product is not intended to diagnose, mitigate, treat, cure or prevent disease. Of course, it must also be substantiated and be truthful and not misleading.

This FDA requirement coincides with the FTC's standard that advertising claims be truthful, not misleading and substantiated. It is notable that FTC has pledged to be "especially vigilant in examining whether qualified claims are presented in a manner that ensures that consumers understand both the extent of the support for the claim and the existence of any significant contrary view within the scientific community. In the absence of adequate qualification, the Commission will find such claims deceptive."

So when accepting orders for dietary supplements, it's a good practice to examine the copy for representations about the effect of the product and to obtain a statement of substantiation for the claims. A good model for that statement would be the substantiation that the FDA requires for product labeling.

The FTC has published a guide for evaluating advertising on dietary supplements. It's worth reading, keeping handy and making sure someone in your sales staff becomes familiar with it. Then any orders for this type of product must be approved for compliance with this good advertising practice. Here is the link:

http://www.ftc.gov/bcp/conline/pubs/buspubs/dietsupp.shtm

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.