A coalition of more than 40 trade associations, including the Natural Products Association (NPA) and the Council for Responsible Nutrition (CRN), sent a letter on April 22 to Senate Majority Leader Harry Reid and Senate Republican Leader Mitch McConnell imploring them to revise a section in the H.R. 4173 Wall Street Reform and Consumer Protection Act of 2009 that gives the Federal Trade Commission (FTC) carte blanche for unimpeded rulemaking and regulatory enforcement. The bill, which has already passed in the House of Representatives and now awaits Senate approval, was introduced to revamp the U.S. financial regulatory system in the wake of economic meltdown, but the NPA and its fellow signatories found the measures within to be too broad for comfort. “The proposed expansion of FTC authority envisioned in H.R. 4173 would reverse the considered decisions of two earlier Congresses,” the letter stated, “granting such sweeping powers that the Commission could essentially act as an unelected legislature, governing industries and sectors that had nothing to do with the financial crisis.”
With such license, the FTC could restrict the marketing freedoms of brands in a variety sectors, including performance claims made in advertisements for dietary supplements. As nutrition industry attorney Marc Ullman noted, with an unchecked regulatory capacity, the FTC could do away with supplement companies’ ability to rely simply on ingredient-based substantiation for product claims, possibly requiring them to produce two gold-standard studies for each specific product. “This could easily lead to a major sea change in how the supplement industry is able to communicate with consumers,” Ullman wrote in an April 19 post to his FYI Blog.
NBJ Bottom Line
A substantial amount of time and money would be required to support dietary supplement product claims with at least two gold-standard studies should the FTC’s enforcement capabilities be strengthened, but manufacturers and retailers need not fear an outright supplement genocide in the event of the financial reform bill passing. Currently, the FTC tends to challenge mostly “cure-all” and other overblown claims on nutrition products, and mostly targets companies that operate through direct channels like the Internet, where egregious claims are easier to make. Still, Ullman recommends that nutrition companies would be wise to make an effort to communicate with their senators, as the NPA and CRN have done, if they do not want to see an expansion of the FTC’s enforcement powers.
NBJ will publish an in-depth analysis of the regulatory and enforcement challenges currently facing nutrition companies in its upcoming 2010 Nutrition Industry Overview issue, which publishes in July. To order or subscribe, please visit the NBJ subscription page.
Related NBJ links:
Related Functional Ingredients Magazine link: