Last fall, supplement industry trade group The Council for Responsible Nutrition (CRN), announced a new initiative, in partnership with the National Advertising Division (NAD) of the Council of Better Business Bureaus (CBBB), to increase monitoring of advertising for dietary supplements. The stated purpose of the initiative was “to increase consumer confidence in the truth and accuracy of advertising claims for dietary supplement products and encourage fair competition within the industry.” For background information on the program from CRN, click here.

CRN describes the basic crux of the initiative as follows:

Through a series of multi-year grants from CRN, the new initiative will allow NAD to hire an additional attorney who will focus solely on this product category. The initiative is anticipated to address not only comparative advertising claims among makers of dietary supplements, but also substantive claims that are deceptive or misleading and clearly go beyond what’s supported by research and allowed by law–claims that feed the public’s distrust of the supplement industry.

NAD will identify supplement product advertising for challenge through its own research and will initiate inquiries on its own initiative. In addition, supplement industry members are being encouraged to challenge misleading ads of their competitors. This part of the initiative is being publicized through a partnership between CRN and Nutrition Industry Executive. Expect to see ads for the program in Functional Foods & Nutraceuticals, Natural Products Insider, Nutraceuticals World and Nutritional Outlook.
If you read the press releases on the NAD website you can see the first few inquiries that have resulted from this new program. Among them are a referral to the Federal Trade Commission for advertising concerning Sunpill, a supplement product marketed by Pure Pharmaceuticals LLC, that claims to protect the skin from the damaging effects of the sun due to its anti-oxidant effects.
The NAD’s most powerful tool is the threat of FTC referral. Under section 5 of the FTC Act, the FTC may prosecute advertising that is unfair or deceptive. The FTC often investigates and prosecutes companies for advertising that the NAD has vetted and found lacking in substantiation. As a result, if your company is the recipient of an NAD inquiry letter it should be taken very seriously since a poor outcome at the NAD could lead to disasterous consequences at the FTC.
Thanks to summer law clerk Jared Weisser for this post.

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Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.