Fi: Are the kinds of regulatory "slipups" that dietary supplements manufacturers make changing, and if they are changing, how?
Ivan Wasserman: A lot of companies out there have great intentions but they just don't know how to make an advertising claim that matches the clinical evidence they have for their product. That’s on the FTC advertising side. They will have good evidence for their product but they just won’t know how to translate that into a claim that matches the evidence at the same time.
A lot of folks out there still don't understand the difference between a claim that is permissible for a dietary supplement (the claim that a product can affect the structure or function of the body) vs. a claim that is not allowed under FDA rules for a dietary supplement (a claim that a dietary supplement can prevent or cure a disease). So they just don’t know what FDA means by disease.
A couple of new things that companies are slipping up on are the FTC’s new rules with respect to "green" claims. Also, claims with respect to consumer testimonials. The rules on those have changed and they apply to claims made in social media, for example, which is obviously a new form of advertising.
Fi: You also represent companies that are defending claims being challenged by the National Advertising Division (NAD). How is that experience, and is that an effective way for companies to have compliant claims?
IW: The NAD is part of the Council of Better Business Bureaus and it really has become a leader in this country with respect to policing the industry. It can be intimidating that someone is reviewing and scrutinizing your claims, but it can also be a very educational experience. I find that they review the claims fairly and they consider all the evidence you present. You have the opportunity to meet with them and discuss with them, and if they do recommend making changes and if you do change your claims in accordance with what they recommend, the FTC at that point isn't going to go after you.
Fi: I read a hilarious article claiming that your 4-year-old daughter discusses FDA law with you over martinis and that you named your middle child DSHEA. How old are they going to be before they read that article?
IW: Thank you very much; I had a lot of fun writing that article. The question is not how old are they going to have to be before they read the article. The question is how old are they going to be before they drink martinis. The problem is that the olives get stuck in the nipple of the bottle... just kidding! For the record, my middle daughter's name is not DSHEA, it's Teddy, which is an equally cute name.
The Wasserman clan pictured above, from left: Sydney, Molly, Joey, Teddy and Ivan.