Misguided: The FTC Attempts to Redefine the Law with its Health Products Compliance Guide

Yesterday, the FTC’s Bureau of Consumer Protection released its Health Products Compliance Guidance—a sweeping overhaul of the 1998 Guidance, Dietary Supplements: An Advertising Guide for Industry. Unlike the recently announced effort to review its Green Guides, the FTC did not seek public comment prior to issuing this update.

According to an FTC blog post that accompanied its release, the new Guidance purports to ​“correct misunderstandings” and ​“urban myths” that have circulated about FTC substantiation standards. In actuality, however, the new Guidance represents a recitation of some of the positions the agency has taken in health-related enforcement matters over the last decade, continuing a stark departure from the prior ​“flexible” approach to substantiation set forth in the 1998 Guidance.

While FTC guidance does not have the force and effect of law, if a person or company fails to comply with a guide, the Commission might bring an enforcement action alleging an unfair or deceptive practice in violation of the FTC Act. This makes the new Guidance a must-read for any company operating in the food, supplement, personal care, health equipment or app, or related industries.