David Vladeck – FTC Director of Consumer Protection
David Vladeck, Director of the Federal Trade Commission Bureau of Consumer Protection spoke at the Council for Responsible Nutrition Conference on the FTC’s “active” dietary supplement enforcement agenda.
Dir. Vladeck began by highlighting recent FTC enforcement actions against bogus cancer cures, Airborne generics, fake hoodia, and peddlers of H1N1 flu cures. Vladeck noted that FTC has begun sending joint warning letters with FDA to marketers of bogus H1N1 flu products.
Vladeck had good words to say about the NAD as well. Though Vladeck observed that FTC did not always agree with NAD, which is a departure from the attitude taken by prior Consumer Protection Division directors.
Then Vladeck turned to the new FTC Endorsement Guides. Everyone held their breath.
Before I go further it is important to remember that Vladeck comes from a consumer protection background. He led the Public Citizen Litigation Group for 20+ years.
On the endorsement guides Vladeck’s message was clear:
1. Disclaimers like “results not typical” are useless and will be attacked by FTC.
2. Advertisers who make claims “will be held responsible for their claims.”
3. If your promotion relies only on testimonials “you will have a problem with us.”
Vladeck described this area for the FTC as a “target rich enviornment” in which they intend to pursue violators using all the resources at their disposal. And when the 1000+ enforcement personnel at the FTC run out, FTC plans to call on the state attorneys’ general. When the AG’s are too busy, Vladeck says that they will do as the FDA does and publish warning letters on the internet in order to “bully companies into compliance.”
Despite the backpeddling FTC has done in the media recently, Vladeck made it clear that he will enforce Section 5 of the Federal Trade Commission Act and the endorsement guides. It was as if Vladeck was drawing imaginary targets on foreheads around the room…
I spoke to several attorneys and CEOs at the reception that evening about the regulatory problem the enforcement guides present and everyone agreed that the problem is very serious. One observed, candidly, that the problem was that “you never know what marketing is doing until it is too late.”
After all, lawyers and regulatory execs are considered “sales killers.” We are never consulted by marketing in advance of a promotion for fear we will put the kibosh on the latest profitable social media marketing strategy.
So what’s next from the FTC? Who knows. After all, it’s a “target rich environment.”
About Joel Rothman
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.
As a science consultant to the supplement and functional food industries I often trot out a parable for prospective clients “Don’t go camping in the woods, because of the bears. If you must go into the woods, don’t carry food with you. If you must carry food, don’t be the slowest camper.”
The FTC has made clear that companies depending solely on testimonials to market products are the slowest campers. Other likely targets are companies depending on “vampire science” – research gleaned from the published scientific literature but not replicated with their own product, the flaw being that the tested and marketed products are not equivalent in chemical composition or quantity.