Natural products retailers wishing to distinguish themselves by offering more wellness education need to keep one thing in mind: Don't overdo it. "Never tell customers you can treat their diseases—period," says Marc Ullman, partner at New York–based law firm Ullman, Shapiro & Ullman, who specializes in food and dietary supplements law.
More than 18 months after the Government Accountability Office unveiled tapes in which retail clerks gave undercover shoppers medical advice, many in the supplements industry remain concerned that the recordings were not as much of a wake-up call as they should have been. The tapes captured one retailer telling a customer that a specific dietary supplement could prevent and reverse Alzheimer's disease. Another clerk said he'd personally taken a product that kept him from getting high cholesterol. Another told a customer she could take an herb instead of a medication her doctor had prescribed.
"The natural path of least resistance is to be empathetic and helpful with your customers; but if you overdo that, you may be breaking the law," says Jay Jacobowitz, founder of Retail Insights, a Brattleboro, Vt.–based natural products consulting firm. "That's why you have to be disciplined with your vocabulary."
Ullman notes that retailers can "give themselves a substantial amount of protection" by hiring licensed practitioners—including naturopathic doctors, herbalists, registered nurses or registered dietitians—to dispense advice. However, laws vary widely from state to state when it comes to what these health professionals can and cannot say legally in the aisles of a retail store. As a result, retailers should "exercise caution" and check with local regulators when setting policies for their licensed practitioners, Ullman says. And remember: The rules for licensed practitioners do not apply to the rest of your staff. "Your clerks are not protected just because you have an RD sitting in the back of the room reading a book," Ullman says. "The information really needs to come from the person with the registration."
In the wake of the embarrassing GAO tapes, both the Council for Responsible Nutrition and the Natural Products Association published guides to help retailers stay within the bounds of the law while being as helpful to customers as possible. (To download these guides, visit crnusa.org and npainfo.org.)
Simple ways you and your clerks can protect yourselves in person, on the phone or during educational talks with customers:
- Never diagnose. If a customer tells you his symptoms and asks what you think the problem may be, suggest he see a doctor. If you have an Aisle7 Healthnotes kiosk in the store, point the shopper there to look for basic information about specific diseases. If you are a licensed practitioner, such as an RN or ND, make arrangements for a private consultation.
- Never prescribe or make specific claims. Do not suggest a specific supplement for a specific ailment. This could be construed as dispensing medical advice or making drug claims. Instead, keep your language general and broad. Instead of saying, "It sounds like you have arthritis. Try XYZ." Instead, say, "XYZ supports healthy joint function." Avoid answering questions such as "Is this product good for treating diabetes [or another disease state]?"
- Keep your books and DVDs separate from your products. Never put a book or pamphlet about a specific ingredient, such as vitamin C or probiotics, next to supplements that contain that ingredient. The book could be construed as a making a claim for the products. Furthermore, the Dietary Supplement Health and Education Act requires that literature anywhere in the store be balanced and not promote a particular manufacturer or brand or be false and misleading.
- Advise customers to read labels. Be prepared to help shoppers decipher labels, and never advise them to exceed the recommended dosage listed on the product label.