By Len Monheit
The case last week where a California jury found a Los Angeles retail store partially responsible ($4.1 million jury award) in the case of a California man who allegedly suffered a stroke after taking an ephedra product underscores some important points for those operating within the supplements industry.
First of all, it's an award against a retailer and not against a manufacturer, and according to jury comments, was because the retailer was deemed negligent for stocking a potentially dangerous product and insulating themselves from responsibility, specifically in warning consumers.
A lot has been written in the past about the retailer as gatekeeper and this important role in dealing with consumers, and even about the need for effective education, communication and training programs along the value chain so that accurate timely information gets to the retailer in usable form. This jury award blasts home this message with multi-million dollar efficiency. A few of the questions, I guess, are "who will take home the message?" and "what actions and activities will it change?"
The newswires were filled with stories in the early part of this year about retailers and consumers clamoring for ephedra products after news about the impending ban was presented by the FDA. In the spirit of 'caveat emptor' these opportunists and entrepreneurs used the laws of supply and demand to advantage. At the same time, and as importantly, some major supplement manufacturers and retailers were repositioning their product mix to reduce their exposure and risk and to offer their customers alternatives (if they intended to stay in the category) or a refocused product mix (for those who felt either from the outset or in light of events that weight management products did not suit their philosophy or customer base). There were and are many natural products retailers who do not offer weight products at all, and who never have.
Exactly what strategy is right is difficult to say. What is a bit easier to identify is that any supplier has responsibility for the products it offers and how it presents them to its clients. This point underscores the value chain responsibility- that is for suppliers to support the entire value chain with clear and consistent communication.In our industry, this is a chain all that way from ingredient to finished product and all the support services along the way, including analytical support, certification, quality assurance measures, compliance, science and substantiation, and marketing message. Even though, in this era of inadequate enforcement, a company can get away with something, the risks throughout the value chain can be quite significant, certainly for your supply chain partners but also for entire industry categories. It shouldn't take a $4.1 million jury award to prove this.
The issues and concerns raised by this award obviously extend to other supplement ingredients, particularly those where the safety profile is under scrutiny - and some companies will measure their risk accordingly. In fact, it is quite conceivable that absurd or unscientific concerns will begin to lead to products and brands being discontinued or pulled from shelves. On the flip side, some retailers will step up their education and training programs and demands on their suppliers, others will use resources such as trade associations and professional service providers and consultants. One thing is certain, the importance of staff training has never been more important.
A part of me wants to know though, what would have happened if the product had been, instead of ephedra, an OTC product with a known safety issue. Would the pharmacy have been found negligent? Another part of me suggests that, although perhaps not specifically tested in court, knowledge and understanding of label fine print (details and potential implications) is absolutely imperative.
To close, these issues and developments affect us all. It was in Canada a year or so ago that a survey indicated that a great deal of misinformation was being disseminated at the retail level, and experience indicates that incorrect and even illegal information is consistently presented at several levels of the industry in both Canada and the US. Through the Internet and other communication vehicles, this information spreads throughout the world, making this really a global supplements issue.