Editorial: A Case of Catch Up

A Case of Catch Up

It's been a few busy weeks since I've last weighed in and analyzed the state of the industry. In that time, some have travelled to Secaucus, New Jersey, others to VitaFoods in Geneva, Switzerland, while others, in some cases mired in the slowing economic cycle, have been buffeted by repeated negative headlines.

The recent spate of negative news feels almost like the leaking of a seal that you know is about to crack open entirely. Had it not been for attention drawn to H1N1, the bulls-eye on industry's chest might well have been lethal.

So what's really going on?

Well, first let me say that the news notwithstanding, industry’s recent events have been decent, perhaps even a lot better, than many expected. Although I can't personally comment on SupplySide East, the word is 'steady’ traffic, some quality leads and a good 'regional' event. For VitaFoods last week I can comment and would say, 'overall, not quite as busy as last year, but more motivated attendees and those companies that planned well had phenomenal events, even against the backdrop of a murky EU scene for claims, with some companies withdrawing claims submissions rather than deal with a rejection.’

Company representatives are more focused and ROI oriented, and at Vitafoods at least, although exhibitor numbers were a bit up and attendees a bit down giving some density challenges, most of the North American companies I spoke to walked away after a really good show. And from the interactions I was involved in, it's evident that Eastern Europe especially is hugely interested in the products we all have to offer. Omega-3's, cranberry, probiotics, krill, and chia all had some buzz behind them, and in a few cases, it's novel applications for more mature products that is drawing attention.

The Vitafoods regulatory forum was also 'up to billing' at least in my opinion. Simon Pettman teed up a good series of discussions on claims, max levels, and the status of innovation, but more on that in another piece a bit later this week.

In the title today, I promised to talk a bit about catch-up, and was speaking for both myself, but also for certain regulators, who seem to have an enhenced mission and will to ‘catch-up’. In my own case, my new base of operations is now Boulder, Colorado and the New Hope offices here. So if you have a reason (or are looking for one) to pass through Boulder, please let me know.

Now, for the important stuff...

FDA, and to a less obvious extent, FTC, are catching up. They're catching up to individuals, to companies and to an agenda. They're operating with intention, mandate and a sense of empowerment. First hoodia, then American Mercantile, then Hydroxycut, followed by Cheerios, covering several sectors and hotspots and setting the stage for huge changes in ambiguous areas such as NDI's.

In it's action against Iovate and Hydroxycut, (and yes the lawyers are lining up) the agency takes on two vulnerable categories (weight loss and sports nutrition), sends a huge shot across the bow based on a two year old SAER and several more which likely could be challenged if only due to the number of product 'doses' consumed in the marketplace in the same period. To my knowledge we don't have an idea what the company's self-reporting SAER status is (that's what got Metabolife in huge trouble as you’ll recall, even before mandatory SAER reporting requirements were in place as per regulation) and the irony here is that the poster child in this case, Iovate, is isolated for the most part from the rest of the industry community (trade associations etc) despite the fact that this news almost certainly impacts tangentially on the entire weight management category. Does this put GSK's category petition on making weight loss claims into drug claims onto more fertile ground? Could this have an impact on upcoming NDI guidance? (The hoodia issue certainly should.)

So, at this point, I’m really thinking, who’s protecting the weight loss category and its billions in sales specifically? To my knowledge, the companies themselves, except perhaps on the ingredient side to some extent perhaps (and even then more to aggressively compete than anything else), do not see themselves as one sector. Even on the ingredient side, although several have gone through both GRAS and NDI processes, many have not. And bearing on this issue (looming on the horizon more likely) is the issue of (over-)consumption of caffeine. Further bearing on the Hydroxycut issue is that it tangents the sports nutrition category, already under consistent and deliberate attack as in this article and recent Sport Illustrated coverage.

So, it appears reasonable to say that the overt mission to discredit the industry and pressure its more aggressive constituents is in full swing. Questions like ‘who’s protecting the image (and sales) of the weight management sector’, and what no-NDI traps are going to cause further shuffling of feet (embarrassment) or worse are obviously not being asked at the right levels or in the right places – in industry itself.

Am I siding with the regulatory authorities in their recent activities? Pretty much, and we certainly seem to provide them with any number of similar just causes to investigate. Moreover, we can expect more of the same, under authority granted by current regulations, let alone proposed changes that would increase the magnification of our processes. Let’s just hope the majority of house are in order (I suspect many are not), and that scattered smolderings of disregard are not widespread. We’re far too vulnerable for that.

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