Supplement Claim Review Program Sees Cooperation, NAD Says

The National Advertising Division says its targeted review of dietary supplement advertising claims is increasing compliance, with most firms cooperating.

The program catches some firms by surprise, showing there is room to expand industry awareness of claims compliance and of NAD as a resource for preventing more expensive and potentially damaging outcomes, the Council of Better Business Bureaus division says.

NAD conducts many of the supplement cases under a program funded by the Council for Responsible Nutrition, which NAD says demonstrates the industry can regulate itself effectively.

NAD senior attorney Mark Levine announced Oct. 6 that CRN and the division are extending their funding agreement through 2014.

In 2006, CRN first granted nearly $500,000 to help NAD increase its staff of attorneys monitoring advertising for supplements (¹ (Also see "CRN Grants $500K To NAD For Increased Dietary Supplement Monitoring" - Pink Sheet, 25 Sep, 2006.)). CRN said it "is very supportive of the NAD initiative," but declined to say how much money it is contributing to the extended agreement.

"We obviously will continue to expand our reach and establish a presence in the dietary supplement industry, demonstrating that the NAD can work with, but not for, an industry to self-regulate and that the industry can self-regulate and cooperate with NAD to police itself," Levine said at NAD's annual conference in New York.

Levine said with CRN's support, NAD monitors more supplement claims while also investigating challenges that the supplement trade group submits.

NAD completed more than 75 supplement claim reviews in the last three years, while previously it conducted around 10 such reviews annually, added Levine.

"CRN challenges continue to be an integral part of this program. They find cases and have an elaborate internal process for determining what cases they bring," he said.

The CBBB unit's increased work on supplement ad claims led to more frequent contact with FDA since some information deals with health claims.

NAD Director Andrea Levine said recent contact with FDA is more productive.

"We've gotten feedback from them very quickly, which is a change from past years. It's been tough to develop a working relationship with them, but things are improving," she said.

Mark Levine said most advertisers cooperate with NAD's supplement reviews, "which is amazing since many of these companies have never heard of us before they get our opening letter."

Metabolic Research Inc. is one of those firms. An executive with Stemulite fitness supplements marketer said he didn't know about NAD before receiving an inquiry in July about the firm's product claims. NAD eventually referred the Stemulite claims to the Federal Trade Commission after Metabolic Research failed to participate in the inquiry (² (Also see "Stemulite Marketer Learns NAD Expects Prompt Replies" - Pink Sheet, 7 Sep, 2009.)).

In the three years of CRN's program, NAD found several recurring claims issues for supplements. Claims based on ingredient tests to promote products and multiple claims for multi-ingredient products are commonly challenged, Mark Levine said.

NAD reviews also noted that claims for supplement and other products sometimes make inappropriate comparisons with competing products, such as comparing the effects of different ingredients or different amounts of a substance, and cite substantiation in studies that are either flawed or irrelevant to a product.

Mark Levine added while most NAD recommendations for claim changes involve minor modifications, some reviews lead to more substantial changes. For example, NAD recently reviewed Deephaven Nutraceuticals' claims and testimonials for its Bravina dietary supplement promoted to help "sufferers of public speaking anxiety" (³ 'The Tan Sheet' Aug. 31, 2009, In Brief).

"NAD recommended that they greatly modify their advertising. Usually it's a little quick fix, but not this one," Levine said.

Weight-Loss Claims Drive FTC Guides Update

Another recurring issue in the supplement arena is the use of testimonial and endorsement advertising. Weight-loss product advertising was a central factor in FTC's decision to update its guidelines on using testimonials and endorsements in advertising (⁴ (Also see "FTC Testimonial Guide Moves Past "Results Not Typical," Enters Blog Era" - Pink Sheet, 12 Oct, 2009.)).

Testimonials of atypical results from the use of myriad products accompanied by fine-print disclaimers stating the results were not typical "had become so prevalent," said Mary Kay Engle, FTC's associate director for advertising practices, in an Oct. 14 conference call with reporters.

"Basically, advertisers were avoiding the responsibility to be able to substantiate the claims about what their products can do by using these outlier testimonials and sticking on a 'results not typical' disclaimer. That just wasn't working and deceiving consumers and we needed to fix that," she said.

Weight-loss product firms have been the most frequent violators, Engle added.

"You frequently saw these dramatic before-and-after testimonials, someone lost a huge amount of weight with a pill. Not only was the fine print there with the results not typical, but it was also about diet and exercise and all those other things that people never want to do. It was the pill doing all the work."

A separate advertising issue touching on disclosure - the use of advertorials or posting ad content on blogs - also is a factor more frequently in NAD's supplement claim reviews.

"As advertising proliferates in new and different mediums and different forms, and advertisers become increasingly more creative in their attempts to reach the audience, sometimes it's not clear whether it's an ad," Mark Levine said.

But NAD expects firms to clearly indicate when they advertise. "The burden [is] on them to make sure to make clear to consumers that it's an ad," he said.

Some Cases Need A Second Chance

The Stemulite case was one of six supplement cases NAD referred to the FTC this year after an advertiser failed to participate in a review or heed the group's recommendations for changing or halting certain ad claims.

Levine said four of those advertisers contacted NAD after being referred to the FTC and their cases were resolved.

"You might just magically and miraculously see that their ad claims have changed shortly after their case comes to FTC," Lesley Fair, a senior attorney in FTC's Division of Consumer and Business Education, said at the NAD conference.

FTC officials have said they approve of advertisers resolving their cases with NAD following a referral, because it adds to the number of disputes that industry settles on its own while keeping those firms free of possible regulatory fines or actions.

- Malcolm Spicer ( ⁵ [email protected] )