Anne Hart has lots of questions about the quality and safety of nutritional supplements, 19 questions to be exact. They revolve around product integrity, contamination, mislabeling (think sibutramine), FDA oversight and so on.  A nutrition columnist for, Ms. Hart has several ideas for matching products to their labels,  all of which create more questions about the testing of every pill, powder, gel and liquid that could be considered a nutritional supplement.

The basic premise of her column is that a lab — probably a lot of labs — should test each nutritional supplement to see if it contains what the label says. The test results should be made available free of charge to consumers whether they are buying online, in a store or from a friend. Who owns the labs and who pays for all those assays and the like? And what entity maintains the databases that must constantly be updated?

Ms. Hart would like the nutrition supplement industry to underwrite the testing costs, but that poses an ethical problem: Just how independent and trustworthy can the labs be if their clients are the  manufacturers? For the answer, look at the uneven history of research firms on Wall Street. The Council for Responsible Nutrition is off the list, too, says Ms. Hart. We can rule out the FDA because it does not have the funding and cannot tax the manufacturers to pay the costs.  Universities have lots of labs and student researchers, but not the money to conduct tests.

“What about forming a group of consumers that would watch the government agency, the independent testing labs, and the manufacturers?” asks Ms. Hart? The idea may be laudable but it is not realistic. America’s social and economic structure does not have a place for such an entity unless it is underwritten by a foundation. The closest model is the Insurance Institute for Highway Safety. It tests how well vehicles fare in crashes, but insurance companies — not consumers — pay for the publicly available research.

Is there a solution that gives consumers peace of mind that what they buy is what they get?


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.