November 3, 2022
Since its passage in 1994, the Dietary Supplement Health and Education Act has provided a framework for ensuring that supplements are safe, unadulterated, high quality and beneficial to health. Any violation of DSHEA regulations can result in the Food and Drug Administration or Federal Trade Commission taking action against a brand or manufacturer—or even a retailer.
"It's important that retailers understand they are subject to DSHEA. There is no carve-out just because they are selling branded products," says Megan Olsen, general counsel for the Council for Responsible Nutrition. "Whenever you're touching supplements, you will have DSHEA liability."
This means retailers must remain steadfast about compliance when talking with shoppers on the sales floor, in their marketing, on their social media pages and in any other conversations about supplements. Because this can be tricky, we enlisted two DSHEA experts and one retailer to share their best advice for staying on the right side of the law.
Industry legal expert
Megan Olsen, senior vice president and general counsel, Council for Responsible Nutrition in Washington, D.C.
Ensure claims are substantiated. More and more, regulators expect retailers to take ownership over what they put on their shelves. This means you shouldn't carry products that make unlawful disease claims or unreasonable claims about what they can do. With COVID-19, FDA flagged brands making treatment claims but also sent letters to Amazon and other big retailers for selling those products. FTC got involved, too, because it deals with claims substantiation. Retailers can't just say, "We sell branded products" and wash their hands of it—they need to have reasonable measures in place to ensure that dietary supplement claims are compliant.
Train staff on supplements' purpose. In consumer media, supplements are often criticized for not having substantiation for the ability to prevent or treat serious illness. Articles will say these products have no effect on diseases, so what's the point of them? But dietary supplements aren't meant to prevent or treat disease or be an alternative to drugs. They are regulated like food and meant for nutrition and to supplement the diet—and they do play a significant role in overall health and well-being. Educating retail staff on what supplements are intended to do and how they can benefit consumers will help them position products to shoppers in the appropriate way—and that goes a long way in ensuring you stay compliant with DSHEA and other laws.
Don't promote testimonials. When you have your own testimonial or a customer's, it can be tempting to promote it, but that turns it into advertising, which means it now needs substantiation. Retailers should always be aware of what is being written on their websites, social media and any other place where consumers can comment on or review products. Yes, reviews are important and encouraged in this space, but retailers can't use them in their own marketing or give positive reviews prominence over negative ones. Also, if ever a consumer's statement includes questionable language, take it down. And don't ask consumers to post, for example, which supplements they use for cold and flu, because that's encouraging them to make disease claims.
Emily Crawford, R.N., CNHP, wellness and marketing manager at Garner's Natural Life in Columbia and Lexington, South Carolina
Steer customers away from disease claims. I like taking opportunities to educate, so if a customer makes an inaccurate statement about a product, or if I overhear customers talking to each other and not being completely accurate, I will politely educate them that what they are saying is not the case. I might say, "No, this won't cure cancer, but it may help your liver function better or provide cellular support." To frame supplements' benefits correctly and help shoppers find the best products for their needs, I'll normally ask them what they are hoping to get out of that product. Or I'll say, "Tell me more about yourself so I can help you decide if that product is a good fit."
Direct shoppers to research. To stay compliant with the law and avoid saying, "this product will cure this," I rely on research. I like to reference specific studies when recommending products, especially when it comes to well-researched supplements like vitamin D or probiotics. It's nice to be able to say, "This will probably work in your situation because this is what the research is showing." Sometimes I tell them go to PubMed and type in a trademarked product. For instance, if you're looking at turmeric and type in BCM-95, a slew of research pops up. We often advise shoppers to check with their health care provider if they are concerned about a health issue, so it's nice when we can point them to research that they can bring into their appointment.
Lean on reps for guidance. We are a smaller store, but we have some really supportive supplement reps, and that helps a lot. They are always coming by and doing floor trainings for staff, and they often talk about what can and can't be said about their products. They try to make it simple so that we can give customers concise, accurate answers. Nowadays, many companies put their research right on the label, such as "clinically proven to protect hair, skin and nails," which is in compliance with the law. In those cases, the reps will tell us, "It's all right here for you; you can just pick up the bottle, show the consumer and read off the label."
Food and beverage attorney
Ivan Wasserman, J.D., managing partner at Amin Talati Wasserman in Washington, D.C.
Vet brands before buying. Retail buyers must do their homework before bringing any products into their store. Get assurances from each vendor that all ingredients in their products are allowed in supplements, meaning they are old dietary ingredients or, if they are new dietary ingredients, that the company has submitted a safety notification to FDA. Buyers should also confirm that whoever manufactured the supplement is appropriately registered with FDA as a food facility and has appropriate recall procedures in place. That way, if there is a problem with a product, the retailer won't be scrambling to find the affected lots; they must be able to pull products easily.
Stick with label claims. A good cheat sheet for salespeople is to stick with the claims on product labels. If a label says a product is for calming, there is nothing wrong with sharing that you or others have had great experiences with that product promoting calm. But do not say that you've benefited from that product in another way that's not listed on the label, as there may not be adequate science to support that benefit. Or let's say a shopper is looking for help with chronic constipation and sees a product intended for occasional constipation. The salesperson should inform them that it's not meant for chronic constipation but, based on the label claims, could help with occasional constipation.
Understand liability of own-label products. For any issues concerning your store brand, FDA can absolutely go after you. Many own-label distributors don't realize that FDA ultimately holds them responsible for their products and expects them to qualify co-manufacturers and have certain procedures in place. One of the most important is adverse event reporting. The consumer doesn't know who the co-manufacturer is, so if they encounter a problem with a product, the retailer will get the complaint. If FDA comes knocking and your name is on the label, you can't just say the manufacturer was supposed to take care of everything.
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