On April 3, 2023, Claudia Lewis was quoted in HBW Insight on the Federal Trade Commission’s (FTC) new guidance on claims about the benefits and safety of health-related products.
According to the article, the commission published “Health Products Compliance Guidance” in December 2022 to update and replace its “Dietary Supplements: An Advertising Guide for Industry.” It maintains that the legal fundamentals of its guidance remain unchanged, but the document casts a wider net in terms of product types covered, including food, OTC drugs, homeopathic products, health equipment, diagnostic tests and health-related apps, in addition to dietary supplements.
Lewis noted the FTC’s previous guidance, published in 1998, allowed flexibility in claims substantiation. “I think here the FTC has taken it a step in the different direction that you need robust scientific evidence, in their mind robust scientific evidence means clinical data,” she said.
Lewis is concerned that with its updated health claims guidance, the FTC will stifle dietary ingredients research as well as growth of the supplement industry and consumers’ health care marketplace choices.
“I just think there's lots of different ways to get to substantiation short of a clinical study on the product itself, depending on the type of the claims that are being made. I feel like this approach that the FTC is taking has a chilling effect on commercial speech,” she said.
Like its expectation for RCTs to support supplement health claims, the FTC appears to have missed court rulings on commercial speech. “There are other areas in the guidance document where they say that disclosures and qualifications may not work. That's the opposite of the case law that courts have been very clear that the government cannot prevent you or restrict the communications and should consider if there's a reasonable way to qualify and limit the information,” Lewis said.