State bills pose threats
The dietary supplement industry must vigilantly police the activities of state legislators. Several state bills introduced in recent years have threatened to limit consumers’ access to natural products. For example, some bills would have imposed prohibitions on the sale of pure powdered caffeine (Mississippi, New York and Jersey), kratom (Mississippi) and sexual performance supplements (New York), according to the Council for Responsible Nutrition (CRN). And in Arizona last year, the state pharmacy board moved to repeal a regulation over dietary supplements following concerns expressed by several industry trade groups and an attorney who represented a marketer of herbal supplements.
State proposals required label warnings
If some state legislators have their way, marketers of conventional food and supplements also may have to disclose various warnings on their labels. In 2017 and 2018, 30 proposals in 11 different states required warning labels or ingredient listings that exceeded national standards related to a variety of common consumer products, according to the Natural Products Association (NPA).
Unfounded warnings confuse consumers
Unsupported warnings or ingredient requirements create confusion for consumers, increase costs and present obstacles to interstate commerce, NPA argued. The trade group said most consumers believe the government should establish standards for product labeling. “States that want to enact labeling mandates beyond federal standards should be required to demonstrate, based on sound scientific evidence, that a product presents meaningful risks,” NPA asserted in a 2018 presentation for SupplySide West.
Trade groups weighed in on court cases
Trade organizations like CRN and NPA are not only busy tracking legislation across the United States. They continue to take an active role when civil lawsuits have the potential to impact the dietary supplement industry. In recent years, CRN and NPA have filed “friend-of-the-court” (amicus curiae) briefs in several important cases—including one involving substantiation of dietary supplement advertising claims. The legal filings may advise the court of the broader implications and potential unintended consequences of a future ruling.
Prop 65 placed burden of proof on defendants
California’s Proposition 65—formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986—was intended to protect the state's drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm. Businesses must inform Californians about certain exposures to various chemicals, and where a product contains a chemical known to the state to cause cancer or reproductive toxicity, the defendants bear the burden of proof to establish an exposure has not occurred.
Prop 65 remains burdensome
Prop 65 continues to pose headaches for numerous CPG industries, including the conventional food and dietary supplement industries. In 2017, there were more than 400 notices of violations for food products, $3.8 million in penalties and $18.3 million in attorney’s fees, according to Prop 65 attorney Anthony Cortez of Greenberg Traurig LLP. Those fees, Cortez pointed out, exclude defense costs.