On Tuesday, a nimiety of federal agencies converged at a press conference at the Department of Justice to announce new and ongoing cases against dietary supplement marketers. Federal agencies included FDA, the FTC, the U.S. Postal Inspection Service, the IRS, the Department of Defense, and the U.S. Anti-Doping Agency. The event was flush with provocative statements by agency officials painting “dietary supplements” categorically as dangerous and improperly labeled and marketed. The following are just a few examples.
- Department of Justice: “Almost every day, news sources . . . feature stories about the dangers of dietary supplements. A supplement is laced with an undeclared pharmaceutical ingredient. A study is released about adverse health effects of a so-called natural remedy. An athlete or member of the military falls ill after taking an untested energy product. These stories arise across the country all too often. Consumers turn to supplements when they want to lose weight, get an edge in athletic performance, or improve their overall well-being. From California to Maine, consumers ingest pills, powders, and liquids everyday not knowing if they do what they claim to do.”
- Department of Defense: “Ensuring the readiness of the force is one of the Department’s top goals. Supplements are a top threat. Why do I say that? More than 70% of active duty service members take some type of supplement. We also know that 20% of those take performance-enhancing, bodybuilding, or weight loss supplements.”
- U.S. Postal Inspection Service: “Health can suffer if none of the advertised claims work, [and products] can even pose health risks. The U.S. Postal Service helps to halt scammers from selling their wares to unsuspecting citizens. Working with law enforcement, we hope to protect the American consumer by keeping these scams at bay through a multi-pronged approach of prevention, education, and prosecution.”
In the course of the press conference, bare assertions were made concerning allegedly violative dietary supplement products despite the lack of any fact finding or legal ruling by any court to date, and settlements were listed as legal victories for the government, even though companies routinely settle cases to forego the cost and uncertainties of litigation regardless of actual liability. Unfortunately, this questionable PR event was conducted in a manner that failed to recognize or respect the many responsible companies that make up the “dietary supplement” industry that have a strong track record for legal compliance. In addition, the PR event was a due process disappointment in its tendency to characterize named defendants as virtually certain wrongdoers. After all, the defendants are just that – defendants. The defendants have not yet “had their day in court” and may not have even had a chance to consider litigation or a settlement. Due process has had better days in Washington.