Washington, D.C.—As WholeFoods Magazine has reported, inHealth Products Compliance Guidance Dietary Supplements: An Advertising Guide For Industry
treleased a statement after submitting a Citizen Petition to the FTC urging it to withdraw the Notice of Penalty Offenses Concerning Substantiation of Product Claims. CHPA was joined by American Herbal Products Association (AHPA), The Food Industry Association (FMI), Natural Products Association (NPA), Personal Care Products Council (PCPC), United Natural Products Alliance (UNPA) in support of the petition.
The associations requested FTC withdraw its Notice for 3 reasons:
“While the Commission’s viewpoint is not new or surprising, what is surprising is to see FTC take its stance one step further by placing hundreds of companies on notice through standardless form letters that fail to provide any basis for imposing the civil penalties they threaten," said CHPA Deputy General Counsel Carolyn Hermann. “First, the Notice attempts to impose a substantiation standard prohibited by DSHEA and inconsistent with long-standing FDA and FTC guidance. Despite this, and several court opinions holding that a more balanced, multi-factored standard remains the law, FTC has continued to push a ’drug-level’ substantiation standard and is now moving forward with its viewpoint by circumventing Congress and the formal rulemaking process. Second, the Notice fails to establish that any company had ‘actual knowledge’ its conduct was unlawful, which is required to obtain civil penalties under the FTC Act and already recognized by the courts in FTC’s previous attempts to obtain civil penalties. Finally, enforcing a Notice that has distributed vague, unclear, and contrary regulatory guidance would violate due process, because it fails to provide any company with fair notice of what is prohibited."
Hermann added, “Since the Notice has no legal effect, it is merely threatening companies for engaging in permissible and truthful promotion of products. The chilling effect caused by the Notice thus keeps true and not misleading scientific information away from consumers, which is exactly what Congress intended to prevent through DSHEA. To stop this unlawful chilling effect, CHPA urges FTC to immediately withdraw the Notice.”