“You don’t make claims regarding diseases and medical conditions because you’re not going to be able to substantiate them.” — Chip Cooper
Chip Cooper is an attorney who jointly owns a service called FTC Guardian. His focus in law and for FTC Guardian is teaching merchants how to navigate FDA (Food and Drug Administration) and FTC (Federal Trade Commission) compliance.
Chip sat down with us so we can create this go-to guide for navigating compliance as a dietary supplements merchant. You can read on below, or if you’d like to watch/listen, then this conversation is available on YouTube and as a podcast.
Should dietary supplements merchants be afraid of the FTC or FDA?
Getting a notice from any acronymed government agency is a scary thing. We asked Chip if merchants should always be afraid of these two bodies or is there a path they can follow when marketing dietary supplements that keeps them safe.
The FTC and FDA overlap. This is the first point Chip made. The two agencies do differ greatly, but specifically for supplement marketing compliance, they overlap in one area. The most important pieces of information to remember is:
1. The FTC (www.ftc.gov) deals with marketing and advertising.
2. The FDA (www.fda.gov) deals with drugs and food.
3. Supplement marketing/packaging is marketing (FTC) for something consumed (FDA).
Both of these entities want the consumer-facing details, like marketing, website, packaging, etc., to be fair. That means providing the consumer with the appropriate information about the supplement without overpromising on results.
Your product is safe as long as you keep from saying something along the lines of, “you will lose 20 pounds in 10 weeks if you take this pill.”
3 Things to Help You Stay Compliant as a Supplement Retailer
We asked Chip for his top 3 tips for supplement marketing compliance; how to avoid problems with the FTC and what to look out for.
The FTC and FDA are watching. Closely. Not quite akin to 1984, the FTC and FDA are watching in the sense that they’re ready to fight down the warpath of improper packaging, product labeling, and marketing. They really do check things closely. You may hear of businesses using or see some companies use tactics that directly go against FTC guidance. Don’t use that as incentive to do the same. They will soon get shut down. So will you if you follow their lead.
The FTC, in particular, is very leery of the ads the see for supplements. Always remember this in an area of high regulatory watch that involves considerable risk.
It’s difficult to feel like you’ve got a strategy that makes sense. There are a lot of unknowns, especially when you’re just starting out. Finding and using a strategy that you know will work with 99% confidence is not going to come easily. It would be smart to start out on the path of least resistance and then add new things along the way. (We’ll give you a few examples of safe website and marketing content further down.)
It all comes down to advertising claims and adequate substantiation for those claims. That’s the heart of it all, the essence: taking what your ad is claiming that your product does and having support that backs it up. Having said that, you do need to keep things opaque. No grand health claims, no extreme results (even if you have results that support it.)
Pro Tip: Chip says one of the best resources is to search online for “FTC ad supplement claims” or “FTC labeling claims” or “FTC case supplements”. You can use these results as good background for your own content.
How can I sell dietary supplements if I can’t use material that show results?
It does feel like a conundrum, doesn’t it? Selling something that benefits the consumer in a particular way yet unable to tell them that’s what it does. The good news is that you can claim benefits and use supporting testimonials, but there’s a trick to it.
Packaging Example: Cheerios 2009 vs. Cheerios 2022
Let’s compare these two packages. It may not be supplement packaging, but there is something you can learn from it.
Don’t use bookends. In 2009, the packaging explicitly stated, “Lower Your Cholesterol 4% in 6 Weeks.” These are called bookends and the FTC and FDA will absolutely shut you down for using them. Bookends are ad claims that state a particular result the consumer will see in a specific time frame.
Bookends are effective, of course. And they were used for years, maybe even decades. But that’s the other thing to keep in mind about the FTC: they adjust tolerance regularly.
These types of ad claims are not acceptable anymore because how can you prove that every consumer will see that result? You have no idea what their diet outside of eating Cheerios is as well as their lifestyle and exercise habits. The FTC is really saving you from a lawsuit. If someone eats this cereal for six weeks and doesn’t see that result, then Cheerios can be sued.
There’s also the implied claim, which is the heart-shaped cereal bowl. The claim that Cheerios boosts heart health is implied by the size and shape of the bowl.
On today’s cereal box, the bookend ad claim is removed and the banner now simply states, “ Lower Cholesterol.” This is acceptable because it doesn’t give a time frame or a percentage, just an idea. What also helps is the disclaimer paragraph right on the front of the box that provides more context.
Can I make an ad claim and then write a disclaimer?
No. Neither the FTC nor the FDA will accept disclaimers that contradict the claim. They won’t tolerate that today. Making disease claims or medical claims is deceptive advertising and will be seen as harm against consumer health.
The supplement industry, in particular, is hard-hit when it comes to taking the brunt of the FTC’s swing. But other healthcare-related products have their own guidelines, like the Cosmetic Act, the Council for Responsible Nutrition, and the Bureau of Consumer Protection. Policy statements aren’t solely seeking out compliance for nutrient, weight loss products, and dietary supplement labels (DSHEA), it’s just that the supplement industry is booming and deserves more attention.
The biggest question to ask yourself is, “am I making claims about structure or function?” Structure/function claims are the FTC’s way of saying “general well-being”. For example, “calcium builds strong bones” is an example of what not to say. You’re making a claim about the function, which may or may not provide a positive or supportive result for every consumer.
Use the Words: “Help” and “Support”
You can even use them together. Using the word “help” or “support” is a good starting point because it doesn’t promise anything. It doesn’t promise results, reduction in cholesterol, increase in testosterone, weight loss claims, or whatever your supplement tries to do.
If you want to specify that your supplement takes care of a particular ailment like diabetes, then you have to do clinical studies/clinical trials and testing to have reliable scientific evidence. It’s the route pharmaceutical companies take before releasing their drug.
How to Use Testimonials and Endorsements
Let’s say you receive a testimonial from someone and they had incredible results. You definitely want to use their testimony, but you have to be careful. Either, the testimony needs to be altered so it removes any specific results (especially bookends), or you have to provide a disclaimer.
Even if you can prove that the customer is real and you can get an approved disclaimer of their lifestyle and habits that led to their results after taking your dietary supplement, it’s still not a good idea to use it in it’s raw form. This is because the results of any testimonial you use have to be typical of the results of your product.
You must be able to substantiate the testimonial success story reflects typical results. It’s a reasonable basis the FTC is seeking. No placebos, no extremes. There should always be base substantiation standard for every product you sell. If you use a testimonial that contains results that are atypical, then you must include a disclaimer. The disclaimer is usually written as an asterisk on the quote and then a “results not typical” statement directly underneath it with some elaboration.
Are you liable for the marketing tactics of your affiliates?
Yes. You are liable. You are responsible for monitoring them and enforcing them. If they make certain product claims in order to close a sale, at a minimum, you have to give them a serious warning that if they continue, you’ll have no choice but to terminate them. They’re creating a risk for your entire business.
Even if you use an affiliate network, you’re not necessarily shielded from taking the blame. You still have to police the chains at the end of the link, the people who are ultimately selling your product.
This is because the network is only responsible for connecting you, the merchant, with the affiliate.
How often should you get a compliance check?
You should aim to get a check once per year. Maybe the statements you make and the strategy you use today isn’t compliant in six months. It’s not unheard of. The FTC and FDA fluctuate regularly in reference to tolerance.
As a dietary supplement product seller, you should aim for yearly compliance checks at the minimum.
DirectPayNet and FTC Guardian Are Here to Help You Stay Compliant
It’s not just your business that gets in trouble if compliance becomes an issue. It can stream down to the individual writer, team, network, or payment processor. The FTC isn’t afraid to come after you, your team, or the people you partner with if they feel there was negligence.
Subscribing to FTC Guardian is a great way to stay in the know. DirectPayNet is happy to provide you with connections to individuals like Chip who seek to keep you compliant and informed. We also want to keep your payment processing in line with your business model.