Recent NAD cases demonstrate that brands must stay vigilant or risk regulatory action.
The COVID-19 pandemic has prompted a substantial increase in consumer demand for immune health dietary supplements. Sales of elderberry products, for example, doubled after the start of the pandemic.1 While this uptick in sales activity has created opportunities for immune health products, brands must toe a careful line in order to avoid a NAD complaint or FDA warning letter.
The National Advertising Division (NAD) of BBB National Programs isn’t a regulatory body, which means its rulings aren’t legally binding. However, NAD often refers unresolved cases to the Federal Trade Commission (FTC) for investigation and legal enforcement.
Several NAD cases have shown that it’s easy for brands to find themselves in hot water if they aren’t vigilantly policing their marketing. Here are some of the COVID-related NAD cases that bear lessons for brands.
Steer Clear of Implied Treatment and Prevention Claims
Most marketers know that supplement brands can’t make explicit disease-treatment claims (i.e., one cannot claim that a dietary supplement treats, cures, or prevents COVID-19 or any other illness). But even if your advertising doesn’t explicitly claim that your product can treat or cure COVID-19, an implied disease-treatment or disease-prevention claim can still be problematic. Two of the NAD cases decided in 2021 involved social media ads and sponsored posts that contained implied disease-treatment claims for dietary supplements.
Laura Brett, vice president of the National Advertising Division at BBB National Programs (New York City), opened the case investigating a social media ad for Pendulum Glucose Control by Pendulum Therapeutics (San Francisco) to inquire whether the ad crossed a line.
“The post referred to ‘new hope’ about butyrate-producing probiotics, like Pendulum’s own product, potentially curbing COVID-19,” Brett says. “The post linked to a study that assessed this connection.”
COVID-19 disease-prevention claims are equally dangerous for brands. In another case decided in 2021, NAD reviewed advertising for apple cider vinegar gummies by Goli Nutrition (West Hollywood, CA). The advertisement made implied immunity-boosting claims in connection with COVID-19. Brett says Pendulum and Goli both agreed to discontinue the disputed claims after NAD review.
Advertisers Are Responsible for Their Influencers
Influencer marketing has quickly become a popular and effective method for marketing supplements and functional foods. However, brands that opt to partner with influencers on immune health product campaigns should know that a brand can be held accountable for claims made by its influencers.
This was the message NAD sent in 2020 when it launched an inquiry into Optivida Health (Orem, UT), a nutritional supplement brand that sells liquid silver supplements, among other products. NAD had initiated the inquiry after a routine monitoring program turned up a Twitter post by Optivida that featured a video of televangelist Jim Bakker selling Optivida Silver Solution as a treatment for COVID-19. Bakker, who was convicted of fraud in 1989 and spent four years in federal prison2, currently hosts a Christian apocalyptic survivalist Internet television and radio show. The NAD inquiry in question involved claims Bakker had made while acting as an influencer for Optivida, including the claim that Optivida’s silver solution could treat or cure COVID-19.
Optivida responded to the NAD inquiry by explaining that it had already permanently discontinued the Jim Bakker video in response to unrelated cease and desist orders from law enforcement. Optivida then voluntarily removed other social media posts referencing silver as a COVID-19 cure and discontinued its relationship with “The Jim Bakker Show.”3
Brett says this case demonstrates that advertisers are responsible for educating their influencers on what can and cannot be said about a product. When working with influencers, it is the brand’s responsibility to explain to the influencer that any express or implied claims, including those conveyed in photos or hashtags, require substantiation.
“On an ongoing basis, we find it useful to explain the rules of the road about advertising law,” Brett notes. “NAD has blogs and a podcast series in which it examines the basics of claim substantiation, including how to substantiate health claims. We recommend listening to our podcast on health-related claims, as well as reading our blog posts on misleading endorsements and testimonials and on influencer marketing.”
Make Compliance Reviews a Priority
Quickly resolving a NAD complaint is a good business practice for brands. But an even better practice is performing regular internal compliance reviews of your brand’s assets before a warning letter makes its way to your doorstep.
Megan Olsen, vice president and associate general counsel for the Council for Responsible Nutrition (Washington, DC), says brands should get ahead of potential regulatory action by conducting internal compliance reviews. A compliance review would address not only product labeling and websites, but also claims made on social media and through influencers.
“As with all claims review, it is important that companies have a robust marketing review system that includes legal, regulatory, marketing, and other stakeholders,” Olsen says. “With regard to COVID-19 claims, companies should carefully review their advertising for references or images that connect a claim to an effect on COVID-19.”
Olsen notes that the ban on disease-treatment claims does not contain any exceptions for substantiated claims, regardless of the state of evidence available. The FDA, she says, provides robust guidance on the kinds of structure/function claims that dietary supplements are permitted to make. In some cases, though, Olsen says brands may have an additional route available.
“If companies believe they have substantial evidence of a dietary ingredient’s effect on COVID-19, they could petition the FDA to review the evidence and claim to determine if it meets the standard for a health claim or qualified health claim. If approved, food and supplement companies could make a specified claim that a substance reduces the risk of a disease or health-related condition.”
COVID-19 Resurgence Demands Continued Vigilance
The COVID-19 pandemic is far from over. Even with 60% of the U.S. population fully vaccinated4, cases and deaths continue to increase. Many impressionable consumers who are skeptical of vaccines are far more willing to embrace nutritional supplements as treatments or preventative therapies, despite the fact that no nutritional supplement is currently FDA-approved to treat, cure, or prevent COVID-19. Immunity brands can ensure continued compliance with FDA regulations and the law by avoiding disease-treatment and disease-prevention claims (whether express or implied), keeping a watchful eye on the influencers they work with, and conducting regular compliance reviews.