NAD ruling reaffirms that science on ingredients shouldn’t be extrapolated to cover finished formulation

06-Jul-2018 - Last updated on 06-Jul-2018 at 15:51 GMT

The National Advertising Division has recommended that a sports nutrition marketer discontinue claims made on a supplement marketed to triathletes that purported to boost their oxygen uptake capacity and speed recovery.

The supplement, called TriDrive, was marketed by a company called VH Nutrition. According to the NAD (which is operated under the aegis of the national Better Business Bureau and is supported by the Council for Responsible Nutrition), VH Nutrition was making the following claim:

“TriDrive is a triathlon supplement that helps to give a VO2 Max boost. It uses a complex formula of adaptogen supplements that help boost endurance, improve circulation, and support the respiratory system.”

Lack of proper substantiation

According to the NAD evaluation, the advertiser maintained that the TriDrive supplement – formulated in part with cordyceps, ashwaganda, Eurycoma longfolia and Rhodiola rosea – would help triathletes recover from training sessions, improve circulation, support the respiratory system, decrease cortisol production, boost VO2 Max, improve stamina, and improve joint and muscle recovery.

These are health related claims, and NAD noted in its decision they must be supported by competent and reliable scientific evidence. Generally, NAD noted, such evidence consists of human clinical trials that are methodologically sound and statistically significant to the 95% confidence level with results that translate into meaningful benefits for consumers that relate directly to the performance attributes promised by advertising.

VH Nutrition had reportedly performed no trials on its finished product formulation and instead was relying on scientific evidence relating to the ingredients in the formulation. NAD noted in its decision that it is “well-established that when there is substantiation only for the efficacy of ingredients in a product, but not for the product itself, any claims must be clearly expressed as ingredient claims.”

Backing for ingredient-based claims

There are thousands of dietary supplements based on combination formulas on the market. Very few have clinical trials based on the finished product formulation, so crafting a claim that matches the science behind the ingredients is an important, but delicate art. This is true even for marketers that have chosen to use more expensive branded ingredients, which in most cases have more robust clinical dossiers backing their health effects than do commodity ingredients.

“This is the standard word game, and as a lawyer, I love word games,” said Marc Ullman, of counsel with the firm Rivkin Radler. Ingredient-based claims are perfectly acceptable, he said, as long as they stay within some fairly clearly demarcated boundaries.

“You need to make sure your claim ties in exactly to what your substantiation shows. If the substantiation relates to the ingredients, then you need to say something like, ‘The ingredients in this supplement have been shown to boost VO2Max,’” Ullman told NutraIngredients-USA.

“And then you have to make sure that your dose of that ingredient matches, or at least reasonably matches, the dosages used in the science you are relying on,” he said.

VH Nutrition, when contacted, declined further comment on the NAD decision beyond the statement it released when the decision was announced, in which it said it, “[A]grees to comply with NAD’s recommendations. VH Nutrition stands by its product and disagrees with some of NAD’s determinations; however, for business purposes, TriDrive is no longer being sold. While there are no plans to sell TriDrive in the future, should that happen, we would continue to comply with NAD’s recommendations.”