Flu Vaccine “Alternative” Claims For Supplements Targeted By FTC

The Federal Trade Commission is closely scrutinizing the marketing of dietary supplement products for flu treatment and prevention during the current shortage of the influenza vaccine in the U.S.

The low supply of the vaccine Fluvirin is the latest health scare to inspire the launch of products marketed as supplements and positioned to take advantage of public health concerns.

"We periodically go through these issues, the latest public health scare. We went through SARS, we went through anthrax," said Richard Cleland, assistant director, division of advertising practices at FTC at the Council for Responsible Nutrition's recent annual conference.

"I'm sure this year it will be the flu vaccine shortage," maintained Michele Rusk, a senior attorney at the division. Flu claims are "something that we'll look at," Cleland added.

The anthrax bioterrorism scare that began in late 2001 and the SARS epidemic in 2003 both generated a large number of products, many marketed on the Internet.

Industry trade groups condemned the practice, and FDA and FTC took joint enforcement actions against firms marketing products that took advantage of the health crises.

One product being positioned as "an alternative to the flu shot," according to its website, is Immunocil , sold by Westlake Village, Calif.-based Polycil Health.

Polycil describes Immunocil as "an established folk remedy...with roots in Far Eastern folk medicine." The product contains humic acid, "produced over centuries by nature's decomposition of plant materials."

Immunocil joins a wide variety of products with marketing materials that reference the shortage, including OTC cough/cold and homeopathic remedies.

Cleland said he wants to involve supplement industry stakeholders in the process of looking at inappropriate flu claims. "I would be very interested in having an industry meeting with regard to products that could potentially take advantage of the shortage of flu vaccine."

Separately, FTC's "Red Flag" media reference guide identifying common weight-loss claims that are considered inherently "bogus" may be reducing the incidence of such claims in the marketplace, the commission says.

FTC launched a website and brochure in late 2003 designed to educate media firms on how to identify and refuse to run ads with obviously false claims (¹ (Also see "Slap On The Wrist? FTC Puts Out Media Guidance On Weight Loss Ad Claims" - Pink Sheet, 15 Dec, 2003.), p. 15).

The program cites seven types of claims as "too good to be true," including promises that consumers will lose more than two pounds per week, or will be able to eat as much as they want and still lose weight.

The agency plans to issue a report in the near future on a survey of print ads undertaken from February through May of 2004 to assess the program, Cleland said.

"We are seeing some early successes," Cleland asserted. "The early signs are fewer ads contain these seven weight-loss claims."

There may be a further reduction in the use of such claims in the near future. FDA announced plans to take enforcement actions against firms using claims from FTC's list as part of its supplement enforcement strategy released Nov. 4.

FTC is continuing to employ an aggressive enforcement strategy against false claims for supplement products, Rusk said.

The attorney noted the commission is "going into federal court more often" on supplement marketers. "The last 30 cases that were in the supplement area...25 of those have been in federal court." The federal venue allows FTC to freeze the assets of a firm if necessary, she explained.

FTC also is garnering results from its strategy of casting a wide net of liability for false claims.

"We are more successful at stopping deception of consumers by holding all of the parties that are involved in marketing [the products] liable," she said. "Not just the manufacturer and marketer, but also the product formulators, officers, in some cases the advertisers."

In the past, attempts to apply liability to endorsers - such as baseball player Steve Garvey - have been less successful (² (Also see "Enforma Spokesman Garvey Not Liable For Weight-Loss Claims – Judge" - Pink Sheet, 11 Nov, 2002.), p. 7).