The National Advertising Division (NAD) has been keeping busy following its annual conference earlier this month.  Here is a summary of its recent decisions and policy updates that will affect dietary supplement and sports nutrition product manufacturers*:

In response to advertisers facing an increase in class action suits after NAD review, the Advertising Self-Regulatory Council (ASRC) updated NAD’s policies to clarify that NAD decisions “do not constitute a finding that the law has been violated.”  This policy change will be helpful to supplement companies should a NAD decision heighten attention surrounding a specific product, causing an increase in class action litigation.

NAD has also provided guidance to advertisers making bioavailable and natural claims—two areas important to the supplement category where government regulators have yet to provide official guidance.  In addressing a bioavailability claim, NAD advised Vital Pharmaceuticals Inc. to stop making certain bioavailability claims due to a lack of scientific evidence.  At NAD’s annual conference, NAD senior staff attorney Kat Dunnigan noted that to make a substantiated claim, the testing provided to NAD must “prove the thing you are trying to prove.”  For this reason, NAD based its suggestions to Vital Pharmaceuticals on its finding that in vitro tests cannot tell a manufacturer about actual human absorption when making a bioavailability claim.

“Natural” claims are another space in which FDA and FTC have yet to provide official guidance for industry.  Although Proposition 37 (see our October 19, 2012 blog post) may change this in California, the current reality is that there is limited regulatory information addressing advertisers’ questions and consumers’ concerns about natural claims.  NAD has provided some guidance in its recent McNabb Nutraceuticals Sunology Sunscreen decision.  The main claims at issue here were: (1) “Sunscreen for skin that prefers no chemicals;” and (2) “Active ingredients derived from nature.”  NAD found these claims to be substantiated based on the context and understanding of the consumer purchasing the product.  Here, it found the sunscreen industry and the target market who buy and review sunscreens understood that sunscreens who advertise as “natural” contain zinc oxide or titanium dioxide as active ingredients, the active ingredients in the Sunology sunscreen.  This decision shows that context is everything – that natural claims made by supplement manufacturers will likely be evaluated within the framework of consumer perception and industry norms within the supplement category.

Stay tuned to our blog for more NAD updates.

*Thanks to “The Tan Sheet” (October 22, 2012) for providing the content for this post.