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Natural Foods Merchandiser

New legislation could broaden FTC’s authority over supplements

If an amendment gets added to a recently introduced Senate bill and passes, the U.S. Federal Trade Commission will have expanded authority over the supplements industry, according to the Washington, D.C.-based Natural Products Association.

“We appreciate what the FTC does, but this would allow the FTC to set policy and enforce it—in essence, become judge and jury,” said Daniel Fabricant, PhD, vice president of global government and scientific affairs for the NPA. “That’s not what we want.”

The Restoring American Financial Stability Act of 2010 (S. 3217) was introduced to improve transparency in the financial system, prevent taxpayer bailouts and protect consumers from abuse in the financial sector. However, the House version included an amendment to broaden the FTC’s authority over supplements. The Senate version is still being considered, and it’s unclear whether a similar amendment will be added to the bill before a vote takes place as early as next week.

Currently, the FTC oversees supplement advertising claims, and the U.S. Food and Drug Administration oversees supplement label claims. According to the NPA, if the FTC gains new powers under an amendment to S. 3217, the supplements industry will be affected in the following ways:

  • The FTC will be able to create advertising guidelines that are inconsistent with what is allowed under the Dietary Supplement Health and Education Act and the U.S. Food and Drug Administration.

  • The FTC could levy fines against businesses for practices it deems illegal without allowing businesses to change policies.

  • The FTC will be able to make, approve and police rules with almost no oversight.

Fabricant points to the FTC’s recent uptick in warning letters as an example of the FTC’s attempt to broaden its role. The FTC may be trying to push some supplement manufacturers for more stringent levels of substantiation to back up claims. Currently, these disagreements might be decided by the courts. Under the new amendment, however, the FTC could possibly establish new regulations and enforce them, acting as a legislative body in a scientific area in which it has no expertise, Fabricant said.

“The amendment is not currently a part of the Senate bill,” Fabricant said. “But people need to write to their Senators to keep it that way.” Fabricant predicts that a vote on S. 3217 will happen early next week. If the bill passes without the amendment to expand the FTC’s role, a conference will be held to reconcile the House and Senate bills, deciding whether the amendment stays or goes.

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