“The Attorney General has become an expert,” Israelsen, President of the United Natural Products Alliance, told us at the SupplySide West show. “Was that homegrown or imported? Clearly it was imported from the New York Botanical Garden. That is a globally respected institution that is large and very well-funded, and full of very smart scientists who understand plants and DNA barcoding.”
“Devil’s Claw is a ranging shot to allow the AG to test a theory,” noted Israelsen. “It’s also happens to be a plant where Herbs of Commerce lists only one species, and most of the product being sold, according to the AG, is another species. That’s the set-up that creates interest for the AG.”
Israelsen touched on the issue of safety, which was quoted by the NY AG in his February letters to the four retailers. (Schneiderman’s statement from his Feb 3 press release: “The DNA test results seem to confirm long-standing questions about the herbal supplement industry. Mislabeling, contamination, and false advertising are illegal. They also pose unacceptable risks to New York families—especially those with allergies to hidden ingredients”)
“The safety issue has dropped off the table,” said Israelsen, “and that happened the day that GNC reached a settlement with the AG’s office: The very same products that were taken off the shelf were returned to the shelf, thus there could be no safety office or the AG could not have allowed that to happen.
“What we’re seeing now is the AG approaching it with three elements, as he is describing in his letters:
There is a commercial issue, meaning which of several plant species are more valuable; there is a scientific issue, meaning we can now analyze these different species; and the third one is this legal issue that Herbs of Commerce, an industry-generated document that was codified in the code of federal regulations but back to 1992, is used as the official reference for how you reference botanicals on labels.”
So what’s next?
Israelsen said that the NY AG’s move would seem to be to continue working through the list of plants that the NY Botanical Garden has been working on. However, anything with protein could be a target for DNA barcoding, which applies to protein powders, probiotics, animal derivative products, algae, fungi, etc.
“That would probably require a different expertise than the AG currently has access to, and the question is, how much time do they want to spend doing this?”