The express and implied claims in question were initially challenged by Nature’s Way Brands LLC.
The National Advertising Division (NAD; New York) of BBB National Programs recommended Dakota Nutrition, Inc. discontinue certain claims regarding its dietary supplements containing elderberry, including its Extra Strength Elderberry 3-in-1 Immune Booster Capsules, Extra Strength Elderberry Gummies, and Immune Defense 7-in-1 Immune Booster Capsules. The express and implied claims in question were initially challenged by Nature’s Way Brands LLC. NAD recommended that the advertiser discontinue the challenged claims:
NAD determined that Dakota did not have a reasonable basis for the challenged claims that its Elderberry Capsules, Elderberry Gummies, or Immune Capsules contain elderberry, nor did Dakota submit any support for the claims that elderberries are antioxidants or that they contain certain amounts of antioxidants. The advertiser’s evidence also did not provide a reasonable basis for claims related to the presence of elderberry in these products. Accordingly, NAD recommended that Dakota discontinue the use of the term elderberry in the name of its Elderberry Capsules and Elderberry Gummies.
In its advertiser statement, Dakota stated that it “agrees to comply with NAD’s recommendations,” although it “respectfully disagrees with NAD’s rejection of raw material testing” of botanical ingredients, which it believes “should be sufficient to satisfy NAD standards.” The advertiser further stated that it “supports the self-regulatory process and will abide by NAD recommendations in future advertising.”