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Aug 15, 2023

How NAD has increased trust in dietary supplement advertising

Mary Engle | Mar 31, 2023 Most dietary supplement marketers will have some

Mary Engle | Mar 31, 2023

Most dietary supplement marketers will have some understanding of FDA laws and regulations, including the Dietary Supplement Health and Education Act of 1994 (DSHEA), and may also be aware of the role the Federal Trade Commission (FTC) plays in policing advertising for dietary supplements under the FTC Act.

But fewer may realize that in addition to complying with government regulation, their ads must answer to the advertising industry's robust program of independent self-regulation that works in conjunction with the government to promote truthful advertising of health-related claims, including in the dietary supplement marketplace.

Since 1971, the National Advertising Division (NAD), one of almost 20 independent self-regulatory and dispute resolution programs run out of the nonprofit BBB National Programs, has served as the U.S. voluntary forum for advertisers to resolve disputes about false or misleading advertising. Though NAD monitors the marketplace and brings challenges of its own, most often advertisers bring challenges against one another's advertising and NAD attorneys decide the case, applying principles from FTC law and guidance.

For example, over the years, NAD has decided challenges to claims about dietary supplements’ bioavailability and absorption, as well as their ability to help with a wide range of conditions, including memory and cognition, menopause symptoms, vision, skin and hair health, stress and mood. More recently, during the Covid-19 pandemic, NAD challenges addressed claims that supplements could treat, cure or prevent Covid.

Though there are some faster case tracks like Fast-Track SWIFT, NAD cases generally take between three to five months from opening to case closure, depending on the case complexity. If an advertiser disagrees with NAD's decision, it has the option to appeal to BBB National Programs’ National Advertising Review Board (NARB), which was also established in 1971 as the appellate body of the advertising self-regulatory system.

Another arm of this advertising industry self-regulatory machine relevant to advertising claims made for dietary supplements is BBB National Programs’ Direct Selling Self-Regulatory Council (DSSRC), which was established in 2019 to monitor advertising by members of the direct selling industry, sometimes known as multilevel marketers. DSSRC monitors the marketplace for claims made by salesforce members or distributors regarding product performance and efficacy, as well as income and earnings claims for the business opportunity.

Voluntary compliance with NAD, NARB and DSSRC decisions is very high, around 95%. Advertisers who do not participate in the process or do not comply with the decision are referred to the appropriate government agency, usually FTC or a state attorney general's office.

FTC, which has jurisdiction over almost all advertising in the U.S., has a long history of supporting vigorous independent industry self-regulation. The agency has been a vocal supporter of NAD and DSSRC since their inception, prioritizing referrals from BBB National Programs among the many complaints it receives with dedicated internal processes that ensure referral cases are addressed.

In 1998, FTC issued business guidance on dietary supplement advertising, which NAD and DSSRC have applied in their own case review. In early 2023, the agency updated and expanded that guidance to cover all health products, which BBB National Programs will also apply.

In the areas of dietary supplements, foods, drugs, devices and cosmetics, FTC shares jurisdiction with FDA.

NAD and DSSRC review claims for all types of advertising, regardless of which federal agency has jurisdiction over the product or service at issue. In the case of products regulated by FDA, NAD and DSSRC will apply FTC advertising guidance, which looks at what claims are reasonably conveyed by the ad and whether there is adequate scientific support for the claims communicated. The type of product and claim are important considerations for determining the level of support necessary.

NAD and DSSRC do not apply FDA rules or regulations. FDA guidance for supporting dietary supplement claims is consistent with FTC's guidance; accordingly, determinations of whether a claim is false or misleading should be consistent across the programs and agencies.

Barring instances of adulteration or dietary supplements making prohibited disease claims (i.e., claims to treat, prevent, cure or mitigate disease), FDA generally defers to FTC for enforcement against false or misleading dietary supplement advertising. Accordingly, for dietary supplement advertising, NAD and DSSRC referrals are generally made to FTC.

Over a 13-year period from 2007 to 2020, the Council for Responsible Nutrition (CRN) provided funding to NAD specifically to review advertising for dietary supplements. With the dedicated resources this partnership provided, NAD brought over 300 dietary supplement cases.

The partnership resulted in greater awareness among disparate industry members of both the need to have substantiation for their claims and about what constitutes adequate substantiation. At the start of the program, most supplement advertisers argued DSHEA permitted any claim so long as it was a structure/function claim and not a disease claim. By the end of the program, advertisers acknowledged they had a responsibility to substantiate their structure/function claims.

Over the course of the program, the kinds of substantiation provided in response to an NAD inquiry drastically changed and improved. Initially, advertisers provided little to no substantiation for their claims. When evidence was provided, it was often insufficient, as it was limited to animal testing, in vitro testing, or uncontrolled testing on limited populations. By the time the CRN program concluded in 2020, advertisers were submitting significant evidence, including clinical testing on the advertised product and testing on ingredients in the product.

While issues in dietary supplement advertising remain, the claims for the products seen in mainstream retail—both in brick-and-mortar stores and online—are drastically different. Most claims are structure/function claims rather than disease claims, and many of those claims are supported by evidence that the supplement does affect the claimed structure or function in the body. The outlandish disease claims that NAD saw frequently at the beginning of the program are now usually made only by small or fringe supplement marketers.

And the dietary supplement industry has engaged increasingly in challenging competitor advertising at NAD. Before the CRN-funded monitoring occurred, supplement advertisers rarely challenged one another's advertising. Over the course of the program, competitive challenges increased dramatically.

In 2016, then-FTC Chairwoman Edith Ramirez praised the CRN-NAD program as an example of "how impactful self-regulation can be." She further noted "the program has been a valuable complement to the FTC's own enforcement efforts to eliminate fraud in this industry."

Like other advertisers, dietary supplement marketers are required to ensure their advertising is truthful, not misleading and substantiated. It's not just the law—it's good business, as dietary supplement marketers want to engender trust with consumers to become repeat purchasers.

The advertising self-regulation programs of BBB National Programs are designed to increase marketplace trust and help ensure that marketers who do play by the rules don't lose business to those who don't. Marketers who see misleading claims in the marketplace can bring them to the attention of NAD or DSSRC, which helps in leveling the playing field.

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