Here is some good advice I received in an email courtesy of Greenberg Traurig partner James R. Prochnow who allowed us to reprint this here.  The advice came in the context of potential reaction from the article by David Epstein and George Dohrmann in Sports Illustrated entitled “What You Don’t Know Might Kill You.”

James’ suggestions are excellent ones for supplement companies to consider at any time, not just when scrutiny is heightened.  Here are James’ suggestions:

We strongly recommend the following based upon the reading of this article and the likelihood of more consumer lawsuits, including class actions based upon false or deceptive advertising, recent developments relating to product recalls, and the ever-increasing regulatory and quasi-regulatory scrutiny of web site claims:

  1. You should review, or you should have someone review, your insurance policy or policies to make sure that you are covered with respect to losses or claims that are most likely to be asserted by others or by you (for coverage by your own insurer) that arise from some alleged injury or damage from (i) the ingestion by a consumer of your dietary supplement or a supplement that you handle in some way or (ii) a product recall. This review should definitely include (1) preparation of a list of possible claims and circumstances and (2) a follow-up call or meeting with your insurance agent and a writing from an authorized representative of your insurance carrier that the coverage you desire is, in fact, provided by your policy.
  2. You should again consider getting bids for contracts for the carrying out of carefully designed scientific studies to confirm or develop your major advertising and labeling claims.
  3. You should make sure that the claims being made for your product, if based upon one or more scientific studies, are consistent with that scientific study or those studies.

Good advice.  I thought it was worth passing along.

About 

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.

Let us file your next patent, trademark or copyright Click Here