Chances are you don’t carry Lazy Cakes—the melatonin-laced “relaxation brownie” that came under fire recently because it is marketed as a supplement, not food—in your store. But the reason you’ve shunned the product might have more to do with nutrition—each brownie packs more than 2 grams of trans fat—than safety—the sweet treat contains almost three times the recommended dose of melatonin for use as a sleep aid (8 mg in the brownie versus less than 1 mg to 3 mg as a typical suggestion for an adult).
So you’ve dodged that bullet. But what about other products that have made their way onto your store shelves? Do you put faith in manufacturers to provide products that are safe, effective and marketed legally? Do you think the feds won’t hold you, as a retailer, responsible for illegal products, especially if you didn’t know they skirted the law?
“Technically, under the Food, Drug, and Cosmetic Act [under which the Dietary Supplement Health and Education Act falls], anyone in the stream of commerce can be liable for selling or distributing an illegal dietary supplement,” says Ivan Wasserman, partner at Washington, D.C.-based Mannatt, Phelps and Phillips law firm and expert on regulatory issues surrounding food and supplements. “Practically, the Food and Drug Administration doesn’t enforce against retailers, especially brick-and-mortar retailers, for selling other companies’ products.”
Simply put, the FDA doesn’t have the resources to check up on Joe Retailer in Anywhere Town. Instead, the feds do a broader sweep, going after manufacturers who make illegal claims or who distribute adulterated supplements.
You see, even if the FDA is unlikely to pursue you at your store, state authorities have been known to do so. “A lot of the time, I get involved when a store calls a manufacturer and says that a state investigator is in the store questioning a product,” says Steven Shapiro, partner at Ullman, Shapiro and Ullman, a New York-based law firm specializing in dietary supplements regulation. Shapiro notes that in the past the state of Texas, for example, has done “a lot of” enforcement in stores.
In October 2010, the FDA issued a brochure, “Tainted Dietary Supplements and Foods: Responsibilities of Retailers and Distributors,” to highlight the potential consequences of carrying illegal goods. These include seizure of products and criminal penalties.
“There’s no exception for retailers,” says Shapiro. “Retailers are distributors of products and are responsible.”
Beyond fear of reprisal, there’s another, perhaps more important, reason natural products retailers should comply with federal and state laws: You care about your customers’ health and wellness. “As a responsible store owner caring about consumers, you would want to take any steps to ensure you’re selling legal products and that customers are provided with safe, effective, appropriate products,” Wasserman says.
But with 50,000 products in the average supermarket, do retailers have time to evaluate each and every one? Sure, the independent natural products retailer has an advantage because your store is probably smaller than average with a tighter selection of products. Still, the task to scrutinize even 5,000 SKUs is daunting.
“It behooves us to seek out the safest and healthiest products available,” says Michael Kanter, industry veteran and owner of Cambridge Naturals, a natural products store in Cambridge, Mass. “But I don’t know if we have the capacity independently to ensure the products we carry abide by federal regulations.” And this uncertainty comes from a retailer who prides himself on studying the ingredients of every product he stocks.
PCC Natural Markets in Seattle counts on manufacturers to comply with federal Current Good Manufacturing Practices, which, in theory, should guarantee that products are tested for identity, purity, strength and composition and are accurately labeled. “GMP certification covers DSHEA,” says Wendy McLain, health and beauty aids merchandiser for the retail chain. “All manufacturers of supplements we carry at PCC must be GMP certified and follow DSHEA.”
Kanter, however, wants more proof of safety from the manufacturer. He suggests that manufacturers send a certificate along with deliveries indicating that ordered products are safe and conform to federal regulations. “This might give us some faith and trust, and we can communicate to customers that we’re paying attention to safety concerns,” Kanter says.
But retailers also need to take some responsibility. “You can’t blindly trust [manufacturers],” says Joel Patterson, owner of Nature’s Green Grocer Market and Café in Peterborough, N.H. “I think retailers and manufacturers need to work together to accomplish the same goals: to deliver a great product that serves our customers, not harms them.”
Here are five strategies you can adopt to hold up your end of the bargain:
- Deal with reputable vendors. Ask for a certificate, as Kanter suggests, or simply ask questions. “Take a look at what you’re selling,” Shapiro suggests. “If products have questionable claims or ingredients, you need to be the gatekeeper.”
- Educate yourself. One way to gain knowledge is to attend industry trade shows. Many of these events offer educational seminars to help you stay on top of current legislation and regulations.
- Check the FDA website.The FDA issues product warnings and announcements, as well as legislative updates. Check the site each morning and evening to make sure your stock is up-to-date.
- Join industry associations. Lean on the Natural Products Association and the Independent Natural Food Retailer Association for the guidance and support that you need to run a legal business.
- Follow your instincts.“Anyone who has been in business long enough gets a sense of when something is wrong,” says Wasserman. Trust your gut about suspect products. If the claims seem too good to be true, they probably are.