How to Avoid False Advertising Lawsuits in the Food & Supplementation Industry

While we at PricePlow love to talk about new brands, product releases, and new flavor variations, we strive to remain up-to-date with the business side of things within the supplement industry. It’s sometimes easy to neglect the inner workings of the industry – regulations, suits, etc. But, its extremely important to us that we cover this area and keep our readers in the know!

Thanks to Robert Tauler of Tauler-Smith LLP for coming on to educate us!

In April of 2019, PricePlow founder and CEO Mike Roberto sat down with Robert Tauler of Tauler-Smith LLP to discuss legal workings within the supplement industry. Robert, an attorney who earned his law degree from Harvard in 2005, has spent many years dealing with various legal situations in the world of food and dietary supplements, and specializes in the area of branding and marketing. In this video interview, Mike and Robert talked specifically about false advertising lawsuits – the rules in place, how issues arise, and how to avoid them! The interview is extremely informative, and we highly recommend checking it out. We’ll link it below, but if you’re someone who’d just rather have some of the key points, we have you covered there, too!

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The regulatory bodies, laws, and regulations

• Issues in the supplement industry seem to consistently circulating, and that’s due to a number of factors! Our world is highly entrepreneurial, and in regards to the supplement industry in particular, there are low barriers to entry. Many of these firms are small businesses, looking to provide supplements that they believe in to the masses!
• Laws have been set into place in order to keep consumers safe, however. The “Dietary Supplement Health and Education Act of 1994″ (DSHEA) is the dominating federal law that regulates the industry. It outlines everything – what constitutes a dietary supplement, labeling, claims that can/cannot be made, and even proper manufacturing practices!
  • Some states can even have their own additional laws. California is one such example – they enforce their own regulations, which is noteworthy given the state is such a vast market!
• There are two main enforcers of these regulations are the FDA and FTC. Despite the two being separate federal agencies, they actually overlap quite a bit in most cases.
  • The FTC governs marketing specifically! They tend to focus more on “big-ticket, nationwide” items, and are more interested in regulating highly profitable, large companies. They also enforce FDA regulations, as well, in addition to being able to hand down their own punishments.
  • The FDA establishes most of the rules and regulations regarding what people ingest, be it food or supplements. They can investigate and police their policies, and recommend troublesome cases to the Department of Justice.

Common supplement and food industry false advertising lawsuits

Now that you have a brief overview of the structure of the industry and its policing agencies, let’s get into what some of the issues that come up are! While the laws in place are essential, they can sometimes be quite confusing, especially for those who aren’t well-versed in them!

• Common issues within the industry
  • One cannot claim to cure/mitigate a disease in nutritional supplements!
    • Implied disease claims are even problematic – you can’t say something like “improves your joints” in marketing!
  • One cannot claim to alter the structure or function of any part of the human body in a dietary supplement, without valid evidence!
    • This makes phrases like “speeds the metabolism” are tricky – you can use them if you have research studies to back them up!
    • Substantiation of effects applies to individual ingredients as well as to potential synergistic relationships between ingredients!
  • One cannot imply any pharmaceutical association!
    • Even using “Rx” in your branding is against the rules – it implies the supplement is a pharmaceutical drug!
    • Having products that are applied transdermally and alters organs (i.e. caffeine patches) are extremely problematic!
  • Cross-investigational entanglement
    • Relationships within business are key – and knowing your partners is important! If you’re working with another company, even if you’re simply selling their products, you can end up in trouble. If they aren’t adhering to the rules and are under investigation, your own business can get roped in as a co-conspirator!

How to avoid false advertising suits

• 

  Robert Tauler of Tauler Smith LLP teaches us how to avoid false advertising lawsuits… and more!

  How to avoid these issues:
  • Don’t mention any disease or ailment whatsoever!
  • Be cognizant of the wording in your marketing pitch – and have published research available to defend ingredients!
  • Stay away from any references to the pharmaceutical/medical field!
  • Know (and trust) your business partners!
    • This includes sales representatives of your own company. Make sure their sales pitches are compliant!
  • Take ownership of your business, and hold yourself accountable to adhering to the laws in place!
  • And finally, if you’re facing issues due to any of the rules/regulations in place, call a legal firm (like Robert’s) that knows them inside and out!

• Forecasting the future? Civil suits…

  Finally, Robert predicts a spike in civil litigation – he foresees companies going after each other if they aren’t adhering to the rules and regulations in place.

These rules are not a bad thing, however…

While some may see this level of complex, hard-to-navigate regulation a bit overzealous, it really isn’t. It’s important to understand that these rules are in place to keep people safe, and at the end of the day, they’ve done much more good than bad.

Even with these laws in place, the supplement industry is thriving – pre-workouts help people get through training sessions, protein powders help people build muscle, and fat-burners help some shed an extra pound or two. In fact, it’s because of these regulations that we’re able to have so many trusted, quality brands and products out there!

Conclusion – be responsible!

Robert makes it pretty clear that a lot of these issues can be completely avoided if companies hold themselves accountable, and make an effort to understand the rules and regulations that control their industry. If you’re selling a supplement, learn how to properly do so, either on your own or with a little help!

Thanks to Robert Tauler of Tauler-Smith LLP for coming on to educate us!

There’s no shame in needing help, either! Firms like Tauler-Smith LLP exist to help prevent running into any problems in the future. Robert and his team specialize in food and supplements, but also work in the fashion and cosmetics industries, too! Having a second pair of eyes, especially from people who really understand the complexities at play, on your marketing/branding can go a long way!

Thanks again to Robert Tauler for coming on and educating us. If you want to see another wild video with him, watch this one!