Is FTC pushing back on structure/function claims territory, asks UNPA’s Israelsen

By Stephen Daniells

- Last updated on GMT

Related tags UNPA Cbd Ftc Loren Israelsen

Many recent warning letters from the Federal Trade Commission about COVID-19 are warranted, says UNPA’s Loren Israelsen, but some targeting health practitioners and what our industry has to offer in the broader immunity discussion may hint at redefining what structure/function claims are allowed.

Speaking with NutraIngredients-USA via video, Israelsen, who is president of the United Natural Products Alliance, explained as COVID-19 was beginning to dominate our lives, FTC began to send out warning letters at a remarkable rate, unlike anything ever seen.

“They’re now past 170 warning letters over the past four months and we’ve seen a pattern develop,” ​he said. “Initially it was going to some really odd and warning letter-deserving recipients making very strong COVID-19 treat, cure, mitigate claims. People who, I think, know little about the rules and not so much a part of our industry as best as I can judge.

“Then the warning letters began to evolve into two types. One that was going to practitioners, naturopaths, holistic MDs, chiropractors, things of this kind, and these are very strong warning letters and basically the template goes, “we’ve evaluated your website”. Turns out it wasn’t always the practitioner’s website. They might have a newsletter and somebody else – a patient probably – and they posted that on Facebook.

“So, the way the information is percolating up to FTC seems to be a variety of means, but they’re using a combination of human eyeballs actually watching the internet and we believe crawlers, key word searches, a combination of which is sucking up a lot of what is being seen online.

Israelsen told us that UNPA organized a call with a senior staffer at FTC who Israelsen has known for a long time to could talk about this, and to express the association’s concerns for practitioners, who are being asked for advice.

“The natural practitioner community has a lot of good things to say, a lot of advice people should listen to in terms of trying to protect yourself,” ​ he said.

“What we learned on the call with FTC was that if you make claims and associate immune function or immune stimulation with COVID-19 that is a syllogism and they [FTC] don’t believe there is any competent evidence that would warrant that claim.

“My concern is that if the pushback is if you talk about immune system in the context of COVID-19 and that triggers a warning letter, this now becomes a question of what is the go-forward domain of structure-function claims. Are we going to see a shrinking of what have been generally accepted structure-function claims for decades? It will likely go beyond immune.

“A fair number of the people who got these warning letters, in my judgement, deserved them. But now we have to separate out the real issue, which is what our industry has to offer in terms of contribution to the broad discussion about the prevention, mitigation, management and after-care as people get COVID-19. That is an entirely appropriate, if not cogent discussion that we should be having. And to the extent we are able to talk about it.

“That is an infringement but is it a First Amendment infringement? There is actually a practitioner free speech discussion that the courts have been having, but is there a right of a health professional to say more than a company representative could say?”

CBD, supplement sales, and more

Israelsen also discussed CBD and the guidance document about enforcement currently under review at the OMB, why he expects higher dietary supplement sales levels to hold as we progress through 2020, the shadow of adulteration in the supply chain, and more.

Watch the video above for more.

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