Imagine you create a piece of content that gets millions of views. How long would it take you to make a follow-up? A few hours later…the same day…or maybe a few days at the most, right? I guess you could say the Federal Trade Commission (FTC) wouldn’t cut it in today’s creator economy. That’s because it took the regulatory agency 25 years to update its previous 1998 guidance document, “Dietary Supplements: An Advertising Guide for the Industry.” You might be thinking that A LOT has probably changed in the supplement industry over the last 25 years…and you’d be right. During that time, the supplement industry has gone from a fledgling enterprise still seeking legitimacy, regulatory structure, and recognition…to a mainstream behemoth with sales north of $60 billion in the U.S. market alone. Since the FTC waited an absurdly long time to update its supplement industry advertising guidance, you might also be thinking that the regulatory agency must simply be ignorant to the breadth and depth of change that happened within the supplement industry. That’s silly though…the FTC isn’t blind…plus what happened in the supplement industry isn’t particularly unique. Every sector of the economy is drastically different than it was in 1998. So, what took them so long? Section 5(a) of the FTC Act provides that “unfair or deceptive acts or practices in or affecting commerce are declared unlawful.” So…in the eyes of the FTC, the legal fundamentals around consumer protection remain mostly unchanged. That doesn’t mean all that change within the supplement industry didn’t converge with the more than 200 cases filed by the FTC challenging false or misleading advertising claims since 1998…causing layers of nuanced confusion for stakeholders. Is the updated document from the FTC titled “Health Products Compliance Guidance” perfect? I think holding any governmental agency to a standard of perfection is asinine. But maybe with more specific and current examples, the revised guidance document will hopefully be a tremendous tool for the supplement industry to build marketing campaigns and meet FTC’s current expectations. Additionally, I’m not a lawyer…so while I’ve played nice within the evolving expectations of the FTC for more than a decade…I don’t interface directly with the regulatory agency on a regular basis. That’s why I thought it would be best if I brought on my good friend Ivan Wasserman, managing partner at Amin Talati Wasserman LLP, which is one of the nation's leading regulatory and intellectual property law firms, to explain the commonalities, differences, and surprises that he noticed in the FTC document Health Products Compliance Guidance. 

Health Products Compliance Guide

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