“Puffery” Rejected and Substantiation Demanded

Earlier this month, the National Advertising Division (NAD), in conjunction with the Council for Responsible Nutrition (CRN), recommended that a dietary supplement company discontinue its advertising claims for one of its products after seeing claims advertising it as an alternative to steroids.  CRN chose to challenge the claims made by the manufacturer through the self-regulatory process of NAD review.  Noting strong claims such as increased muscle mass and strength, the NAD questioned how the company could be marketing a legal nutritional supplement using claims associated with anabolic steroids and recommended that the company remove a majority of those promotional claims.

Though disagreeing with CRN and NAD, and pointing out that because a compound may be anabolic does not mean it is an anabolic steroid, the company chose to comply with NAD’s request and remove a number of their product claims.

This case leaves many in the industry to question what this NAD/CRN review of claims will mean to other supplement companies moving forward … and how this scrutiny and review of claims will further impact the claims companies can make to effectively market their products. Self-regulatory review by organizations like the NAD more commonly occur in the Direct Response market, a category which tends to draw higher scrutiny from regulators and competitors alike. In this case a sports nutrition company was not only challenged to substantiate its claims, but the substantiation itself was challenged by the NAD on grounds such as:

• studies conducted on a sample of individuals that are not the target audience of the product are inapplicable;
• studies that use amounts of an ingredient that exceed the amount used in the product are inappropriate;
• animal studies alone are insufficient to substantiate claims for products marketed to humans;
• and the level of substantiation provided was inadequate to meet “clinically proven” claims.

In addition, the NAD refused to accept the company’s position that some of the product claims were merely “puffery” and insisted that those claims be substantiated as well. Rather than engage in an adversarial dialogue with the NAD, the manufacturer chose to accept many of NAD’s recommendations. Had they chosen a different path, it is possible that the NAD would have referred the matter to the FTC for further review, which is often the next step when a mutually agreeable resolution cannot be reached between the company and the self-regulatory reviewer.

Now, more than ever, it’s important for supplement companies to ensure sure that they comply with the requirements for substantiation of labeling, marketing and advertising claims.  With organizations such as NAD, ERSP and CRN looking even more closely into claims being made by supplement manufacturers, it’s likely that what happened here can happen with other manufacturers of legal nutritional supplements.  It’s critical to make sure you have adequate substantiation to support your claims, closely review any and all promotional materials you are distributing (either in print or online) … and ensure that the language you are using is not only going to generate interest in your products, but is language that is going to pass the test of outside agency review.

As always, if you are in need of legal counsel when it comes to how to ensure that you are best complying with all current, and reasonably anticipated future, regulations in the nutritional supplement industry, call us anytime at 516-294-0300.