Natural Products Insider

JUL-AUG 2019

INSIDER is the leading information source for marketers, manufacturers and formulators of dietary supplements, healthy foods and cosmeceuticals. Since 1997, INSIDER has been serving the needs of the global nutrition industry.

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30 INSIDER July /August 2019 Legal: FTC over matters such as companies scraping reviews and images from social media and using them in advertising without permission. Risk may be reduced by carefully considering permissions that might be required for use of content, having in place policies on infl uencer advertising and social media, training and monitoring those incentivized to speak about a brand, and acting against noncompliance. The level of training and monitoring needed will depend on the type of campaign—whether, for instance, it's for a celebrity infl uencer campaign or a single free product giveaway for consumer reviews. Disease Claims and Other Aggressive Health-Related Advertising When there isn't a concerted initiative— like with the Obama administration—FTC tends to focus its enforcement around health-related advertising on claims that might prompt consumers to forgo proven treatment for serious conditions and other practices where FTC perceives a signifi cant risk of fi nancial or another consumer harm. The current FTC is following this same trend. For instance, in April, FTC joined forces with FDA to send warning letters to companies promoting CBD products to treat Alzheimer's disease, cancer and other serious diseases. Also, in April, FTC announced a settlement involving a cognitive health supplement that was allegedly sold with deceptive risk-free trials, promoted using fake consumer endorsements and fake news sites, and deceptively marketed as being tested in over 2,000 clinical trials and used by Stephen Hawking, Bill Gates and Elon Musk. The companies and individuals agreed to a roughly $14 million settlement, with all but about $600,000 suspended based on inability to pay. If it's later found that the respondents misrepresented their fi nancial situations, the full amount will become due. Managing Risk Staying apprised of FTC enforcement trends helps companies manage risk, especially given that, in recent years, where a company faces public FTC enforcement action, it is almost certain to face follow-on demands and complaints from plaintiffs' fi rms. Because an adverse action that begins with FTC likely won't end with FTC, it's important to follow FTC developments— including new guidance and other pronouncements—that signal agency expectations for regulated industry. Katie Bond, partner, Amin Talati Wasserman LLP (, provides regulatory counseling and litig ation support for consumer products, including dietary supplements, foods, OTC drugs, cosmetics and sports equipment. Bond advises clients regarding the use of effi cacy and health benefi t claims; green marketing; "Made in the USA" claims; social media; and consumer, celebrity and expert endorsements.

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