LAS VEGAS—Advertising challenges via self-regulatory programs have become more prevalent in the dietary supplement industry, as FTC is unable to review all advertising in this industry. Anne Maher, Esq. of Kleinfeld, Kaplan and Becker LLC outlined the main self-regulatory programs active in the supplement industry in her SupplySide West seminar, Nov. 12 in Las Vegas.
Maher touted the benefits of self-regulation programs, including Better Business Bureau (BBB) -based programs such as the National Advertising Division (NAD) and Electronic Retailing Self-Regulatory Program (ESRP). NAD and ESRP provide a forum for halting misleading and/or unsubstantiated ad claims, and are cheaper and less formal than a Lanham Act of FTC proceeding. These self-reg programs also stipulate 60 days from inquiry to decision, and all meetings, deliberations and records are kept confidential. Compliance with the decisions is about 90 percent, and those who choose not to comply are referred to FTC, which gives high priority to these referrals.
Maher noted NAD has been very productive, with 40-percent more decisions in 2008 vs. 2007, and the program often fills the voids in FTC guidance. Thanks to partnership funding by the Council for Responsible Nutrition (CRN), there is one NAD atorney dedicated to dietary supplement advertising cases, which have tripled in recent years.
Both NAD and ESRP programs cover various ad claims, including establishment claims, efficacy claims, superiority claims, product testing, disclosures, testimonials/endorsements and puffery. Maher ran through several examples of dietary supplement claims cases, detailing the advertising claims made, the decision reached and any action taken, noting many companies discontinue the questioned advertising claims or dissolve the company after decisions are handed down.
