The beauty-from-within segment of the dietary supplement market is flourishing, and compliance has never been more important. It's easy for a well-intentioned post or blog to cross the line into the disease claim category, thus attracting the attention of the FDA, the FTC, or plaintiff attorneys. This article is informational only and is not intended to replace competent legal or regulatory review. Always check with your counsel before marketing supplements. Here I review common mistakes and best practices for effective but lower-risk marketing strategies.
The beauty-from-within segment of dietary supplements continues to grow, and market leaders like Ritual and Hum Nutrition are reaping the benefits. As this marketplace grows, new brands are jumping into the space. These may be cosmetic brands looking to expand into supplements or start-ups with interesting new ingredients and branding looking to gain market share. The dietary supplement market differs from other industries, and learning the nuances of compliant marketing can be a steep learning curve.
Hashtags Are Marketing Claims
Hashtags are now commonly cited in FDA warning letters. In a review I conducted on anxiety-related FDA warning letters, 27% of the letters included claims in hashtags. This is a considerable number, and it shows that the FDA is paying attention to claims made in hashtags. It is easy for an otherwise compliant post to tip the scale and become non-compliant with the use of a disease hashtag.
Social Media Engagement, Posting, and Reposting
If a customer adds comments that contain disease words, such as "This product worked great for my anxiety," to a company's social media wall, the authorities have been hands off. However, if the company "Likes" or comments on the post, it's considered endorsing the statement and is, therefore, a marketing claim. If the company reposts this, the risks associated with this marketing statement will increase.
If a company shares a link that includes disease words related to ingredients they sell, such as an article titled "Hyaluronic acid linked to lower levels of acne," this is a marketing claim and may be scrutinized by the authorities. If the company adds its name in a hashtag, this further elevates the risk.
Structure-Function Statements Are Allowed
Structure/function claims are defined as a nutrient or dietary ingredient that affects the normal structure or function of the human body. If a supplement company has substantiation, they can be permitted to make structure-function claims such as "antioxidants maintain cell integrity." However, it is easy to cross the line into disease claims inadvertently. Here are a few examples.
Citing Clinical Studies
Let's say a company formulates a product with an ingredient that has great clinical studies. Can these clinical statements be used in finished product marketing? My advice is to be careful, as branded ingredient research doesn't necessarily carry over to compliant supplement marketing. If an ingredient has sound science to support a "helps hydrate skin" statement, and a product uses the same serving amount in the study, this is not high risk. If this same ingredient has research about preventing arthritis, I would not use this but would choose instead to say, "researched ingredient for mobility."
Preventing Sun Damage Statements Are High Risk
The FDA is strict with supplement or cosmetic product claims related to protecting sun-damaged skin, such as "mitigating skin aging resulting from sun exposure." Here's a quote from former FDA Commissioner Dr. Scott Gottlieb about supplement companies that were marketing products in this category:
"These companies … are putting people's health at risk by giving consumers a false sense of security that a dietary supplement could prevent sunburn, reduce early skin aging caused by the sun, or protect from the risks of skin cancer."
The FDA's likely rationale for this is that people may be less apt to apply sunscreen if they think a supplement or cosmetic will protect them from sun damage, which can result in skin cancer.
Remember the FDA statement, "These products are not intended to treat, diagnose, prevent, or cure any disease?" If a company makes a "protect the appearance of sun damage related to sun" marketing claim, this is considered treating or diagnosing cancer (the disease).
Old Blogs and Social Media Posts
One of the most overlooked parts of a compliance "tune-up" is old social media and blog posts. The authorities look back on old social media posts and treat a multiyear-old post in the same manner as a current one. The same is true for blogs. As part of our company offerings, we run compliance checks for clients, and they are always surprised by the very high-risk statements that may be lurking deep in their old blogs.
Lower-Risk Terms
Learning what can get us in trouble is a great way to inform compliant marketing strategies. Here are some examples of lower-risk marketing statements. It is important to remember that all marketing statements must be truthful, not misleading, and have substantiation.
