May 20, 2011

PETITION ASSAILS FTC HEALTH CLAIM SUBSTANTIATION CRITERIA

by Charles J. Raubicheck

The group American Health Alliance ("AHA") has petitioned the Federal Trade Commission ("FTC") to rescind criteria the agency uses to judge the substantiation of health claims made in advertisements for foods and dietary supplements.

Alliance Petition Dietary Supplements

A health claim is a statement that consumption of a particular nutrient in a food or a dietary supplement may prevent or reduce the risk of contracting a particular disease. The petition contends that the FTC is improperly usurping powers of the FDA by requiring two clinical trials (the strict standard for drug approval) to support these advertising claims. Also, the petition maintains, FTC is unlawfully using the lack of FDA approval of specific health claims as a proxy for finding the claims unsubstantiated. (FDA has hardly approved any health claims, usually asking for more data).

In fact, the FTC has employed the above criteria in obtaining consent orders in several advertising enforcement cases involving probiotic and cold/flu immunity claims.

AHA calls FTC's actions a prior governmental restraint that unconstitutionally chills commercial free speech in the food and supplement industries.