Mister added that the FDA has ramped up focus on the dietary supplement industry since then by upgrading the Division of Dietary Supplements into an Office, among other things.
"At the FDA standpoint we see them ramping up the GMP inspections, we see them making supplements more of a priority in the agency," he told NutraIngredients-USA.
But “on the FTC, I don’t think much has improved.”
His commentary is based on the time period between 2014, when Sen. Claire McCaskill (D-MO) chaired an informational hearing about the weight loss supplement category which brought the issue to national attention (in part due to TV personality Dr. Mehmet Oz’s presence), and the present day.
When it comes to regulatory enforcement in the dietary supplement industry, the FTC has been focusing on bigger battles instead of the low-hanging fruit, Mister opined. FTC’s lost battle against Bayer in 2015 came to mind.
“For me, the takeaway from that hearing [in 2014] was that there was a lot of low-hanging fruit. There were companies out there who were making patently false claims in the weight loss category, and some consumers were misled by that,” he said.
“Rather than focusing on the low-hanging fruit—these are companies making truly egregious statements to consumers around weight loss—the FTC seems to have been looking at other issues where they think they’ll get more publicity for the enforcement,” he added.
Three out of four recommendations have borne fruit
At the 2014 hearing, Mister offered four significant steps for the subcommittee to help address the issues: 1) Expanding and strengthening voluntary programs among manufacturers and marketers; 2) increasing resources and priorities for the enforcement of existing legal requirements by both FDA and FTC; 3) Calling on media outlets and online retailers to conduct their own advertising review; and 4) educating consumers to be realistic about weight loss strategies and expectations.
In Mister’s observation, three of the four recommendations have borne fruit, with the third being the outlier where Mister “hasn’t seen much progress,” he said. “We called on media outlets and online retailers, and that includes the internet and social networks.”
“People who are responsible for those sites and who are putting out, approving advertising that goes on cable TV, I think there’s more that they can do to ask tough questions before they accept these advertisements and put them out to consumers,” Mister argued.
“Some of these ads are too good to be true. We’d like to see the online retailers and the media be more conscientious of what they do and not just accept an ad because it has ad dollars behind it.”
“The FTC has said from time-to-time to crack out on that, on the media that allows these ads to run, and they haven’t done that.”
What’s new with FTC initiative ‘Operation Failed Resolution’?
In 2014, the same year as democratic Sen. Claire McCaskill’s informational hearing on the weight loss supplement industry, the Federal Trade Commission (FTC) announced a new initiative to crack down on deceptive advertising practices for weight loss or management, dubbed ‘Operation Failed Resolution.’
But searches on FTC’s website, as well as on search engines, return only press releases and media coverage from that same year. Does this mean the initiative has been discontinued?
“I don’t think you’ll necessarily see it referenced as [Operation Failed Resolution], but we have seen a number of weight loss cases coming out of the FTC since then, so I think that’s the fruit of that initiative,” said Steve Mister, president and CEO of the trade group Council for Responsible Nutrition.
Though there has been no formal analysis of weight loss-related cases in the FTC from before and after the initiative was announced, “I think you could assume that some of those came from this initiative,” Mister argued.