Regulators using ever more powerful microscopes to look for disease claims, attorney says
Erica Stump, a California-based attorney who has advised many dietary supplement clients on claims, class actions and other concerns, participated recently in a claims webinar put on by Asa Waldstein, a certified clinical herbalist who is the chairman of the American Herbal Products Association’s cannabis committee. Stump makes the point that the Federal Trade Commission is using an every more powerful microscope to look for unsubstantiated disease claims. Even as FDA continues to send out warning letters, FTC action has ramped up as the amount of coronavirus-related messaging increases exponentially.
“It’s not the only thing we’re working on, but it is keeping us busy,” said Mitchell Katz, a press officer in FTC’s office of Ad Practices and Telemarketing.
A focus on hashtags
Stump said a recent development is that FTC is using the presence of various hashtags in a company’s marketing materials to infer the attempt to make a COVID-19 disease treatment claim. This has included looking at statements made not just by company employees directly, but also by individuals closely associated with the brand, such as influencers. Or, in the case of network marketing companies selling dietary supplements, statements that have given rise to warning letters have been made by independent distributors.
“I think the scrutiny of the use of hashtags has been reemphasized in this climate,” Stump told NutraIngredients-USA. “It feels very new to me that FTC or FDA would be looking at that. In the past I think you could have used #cold or #flu and not have gotten much comment.”
“I think people thought using hashtags of various sorts was no big deal. But if you put a #COVID-19 or #Wuhan or another hashtag like that on there, it is an implied disease claim,” she said.
The action against the MLMs which was announced by FTC earlier this week included specific mentions to hashtags that were used by distributors when communicating with their downline distributors and with prospective new customers. The warning letters themselves are temporarily unavailable for public view as FTC merges a number of COVID-19 references into one web page.
How to honestly market an immunity benefit
Any product that has an immunity tie-in has been in high demand recently. Vitamin C, elderberry, echinacea, astragalus — they have all seen sales spike and supplies have gotten thin. What can companies marketing these and other products with potential immunity benefits like probiotics reasonably say during this time without crossing the line and getting unwanted attention from regulators?
“Well, you can’t say coronavirus, or COVID-19, of course. I wouldn’t even advise using the word ‘pandemic.’ But you don’t want to be in a position of just telling your clients no, just telling them what they can’t do. You have to come with a solution. So I would advise clients to stick to a claim like ‘supports a healthy immune response,’ ” Stump said.
Some companies have put up COVID-19 advisories on their home pages to communicate about how they are altering their businesses practices and what that might mean for inventories and shipping dates. That’s fine, Stump said, as long as there is no hint of a connection to what health effects those products might have once they are shipped.
Stump said business is booming as companies race to get products out the door. Are they doing their utmost to help distressed consumers, or are they cynically capitalizing on a trend?
“I think it’s a combination of both. You have unscrupulous companies trying to take advantage, and then you have a lot of companies honestly trying to help consumers. But I can say I have reviewed more product labels than I can count in the past two weeks,” Stump said.