Ingredient dusting and the Fairy Tale Commission

The process of "fairy dusting" products with functional ingredients and then highlighting the presence of those ingredients doesn't always lead to a happy ending for natural product companies.

Ivan Wasserman, Partner

November 6, 2014

2 Min Read
Ingredient dusting and the Fairy Tale Commission

John Lennon once said: "I believe in everything until it's disproved. So I believe in fairies, the myths, dragons. It all exists, even if it's in your mind. Who's to say that dreams and nightmares aren't as real as the here and now?" 

That is a view that John Lennon and the Federal Trade Commission do not share. While Lennon believed in everything until it was disproved, the FTC (and the National Advertising Division) makes marketers prove that things are real before it believes in them. 

Speaking of fairies, a practice known as "fairy dusting" occurs when a company puts a very small amount of a functional ingredient that has marketing cache in its product and then makes a claim about the ingredient, or simply highlights the fact that it is in the product. The product actually does contain the ingredient, so claiming that it does is technically true. However, it may nonetheless be misleading if the product does not contain enough of the ingredient to be efficacious, either at what the labeling or advertising claims the ingredient does or whatever the ingredient is well known to do. 

In other words, to support a claim that your product contains a well-known functional ingredient, while it may be literally true, the FTC (or others) could take the position that you are implying that the product does whatever the ingredient is well-known to do. After all, why else would consumers care? If this happens, at a minimum you may need to show that the product contains an efficacious amount of the ingredient as shown in studies. Without that, there may not be a happily ever after to the fairy tale.

While it still exists, I believe this practice of "fairy dusting" has decreased over the years.  Then again, I believe in dragons.

About the Author(s)

Ivan Wasserman

Partner, Amin Talati Upadhye

Ivan Wasserman is one of the nation’s premier attorneys for health, wellness, beauty and other consumer products. Companies of all sizes making, marketing and selling food, dietary supplements, cosmetics, over-the-counter drugs and medical devices praise the depth of his knowledge and experience, his humor and his ability to maintain the human perspective while leading them through this heavily regulated landscape. Frequently cited by the media as a legal authority, Ivan helps his clients launch products and create and execute advertising campaigns that match the clinical evidence they have for their products, paying close attention to the changing rules governing internet marketing, consumer testimonials and social media.

Ivan advocates for clients subject to the often overlapping jurisdictions of the U.S. Food and Drug Administration, the Federal Trade Commission,  and the U.S. Consumer Product Safety Commission.   When advertising disputes arise, he regularly represents companies before the National Advertising Division (NAD) and the Electronic Retailing Self-Regulation Program (ERSP). He has been included in Best Lawyers in America from 2007 – 2017.

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