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FDA Acknowledged Flaws in Guidance for Dietary Supplement Industry

An FDA official advised Rep. Jason Chaffetz that the agency is releasing new guidance to help companies meet their obligation under the law “to ensure that dietary supplements containing NDIs [new dietary ingredients] are reasonably expected to be safe."

Josh Long

July 28, 2016

4 Min Read
FDA Acknowledged Flaws in Guidance for Dietary Supplement Industry

In a letter to a member of Congress, FDA acknowledged it failed to clearly convey some of its views regarding five-year-old draft guidance governing notifications of new dietary ingredients (NDIs).

In reviewing comments related to the draft guidance and meeting with consumers and the dietary supplement industry, “it became clear that there was considerable misunderstanding about parts of the draft guidance and that, in some cases, our views were not stated clearly," an FDA official, Dayle Cristinzio, wrote in a March 10, 2016 letter to Rep. Jason Chaffetz, a Republican from Utah.

Cristinzio advised the congressman that FDA was “in the later stages of preparing the revised draft NDI guidance" and hoped “to publish this document in the near future."

The letter, which INSIDER obtained Thursday from FDA through a Freedom of Information Act request, makes clear that the new draft guidance will not be final.

“We want to stress that we are publishing a revised draft guidance, rather than a final guidance, to provide the public and interested stakeholders with a further opportunity to comment," Cristinzio, FDA’s Acting Assistant Commissioner for Legislation, stated.

Industry sources have described release of the new document as “imminent" and said it could be unveiled in the coming weeks in response to criticisms that the July 2011 guidance poses undue burdens to companies and is contrary to the 1994 Dietary Supplement Health and Education Act (DSHEA).

“We’re happy to see that the agency is making this [guidance] a priority and hopeful that it will be out soon," said Daniel Fabricant, Ph.D., executive director and CEO of the Natural Products Association (NPA).

Under DSHEA, an NDI is considered “adulterated" unless the “dietary supplement contains only dietary ingredients which have been present in the food supply as an article used for food in a form in which the food has not been chemically altered"; or FDA receives a notification at least 75 days before the new substance is introduced into the market, establishing that the product containing the new ingredient “will reasonably be expected to be safe." As INSIDER has reported, three out of four NDI notifications have been met with some type of an objection by FDA, such as a finding there is inadequate safety data or the company failed to sufficiently describe the ingredient.

“The revised draft guidance will clarify matters that were not clear in the 2011 draft guidance or that were subject to misinterpretation," Cristinzio wrote. “The purpose of issuing guidance on the topic of New Dietary Ingredient … notifications is to provide clear recommendations on when firms should file such notifications and what information should be included in a notification. In other words, the guidance is intended to provide information and tools to help companies meet their statutory obligation to ensure that dietary supplements containing NDIs are reasonably expected to be safe."

Steve Mister, president and CEO of the Council for Responsible Nutrition (CRN), looked forward to FDA offering guidance on information that companies should include in an NDI notification. He referenced NDI submissions that are rejected by FDA for obvious reasons, such as failure to sufficiently characterize the nature of the ingredient or failure to disclose the manufacturing process to confirm the ingredient can be made consistently.

“Things like that are things that the industry absolutely needs in a guidance so that we don’t have these rejections for silly reasons, [and] the industry understands going into the NDI notification process what’s expected in that submission," Mister said in a phone interview.

Chaffetz’s office did not immediately respond Thursday to a request for comment. Neither did the White House’s Office of Management and Budget, which must review the draft NDI guidance before it is published.

In writing to FDA earlier this year, Chaffetz reiterated his previous position that the 2011 guidance was inconsistent with the law.

Finally, Mister said the 2011 draft guidance reflects more than just a misunderstanding between FDA and the industry.

“It’s all in how you couch the gulf, the divide, between the industry and the agency," he said. “We saw it as more than just a, ‘Oh you weren’t being clear.’ We saw it as, ‘No, you got it wrong in some cases and so this is your chance to re-evaluate the position and come back and get it right.’"

Editor's note: Interested in learning more about what’s happening at FDA around dietary supplements? Join FDA’s Cara Welch, Ph.D., senior advisor in the Office of Dietary Supplement Programs, in the SupplySide West Featured Speaker session on Thursday, Oct. 6, at SupplySide West 2016.

About the Author(s)

Josh Long

Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition

Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a focus on regulatory issues, including at the Food and Drug Administration.

He has moderated and/or presented at industry trade shows, including SupplySide East, SupplySide West, Natural Products Expo West, NBJ Summit and the annual Dietary Supplement Regulatory Summit.

Connect with Josh on LinkedIn and ping him with story ideas at [email protected]

Education and previous experience

Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.

Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).

Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide (in Wyoming), Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.

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