Why Won’t NY Attorney General Schneiderman Release the Report? (Editorial)

No transparency? Pivotal data in the case building against the dietary supplement industry is still under the NY AG's lock and key.

If you’re wondering how seriously New York Attorney General Eric Schneiderman’s (NY AG) investigation of herbal supplements could impact the dietary supplement industry, perhaps the concern industry leaders shared at April’s Ingredient Marketplace trade show will shed some light.

“In my experience over 41 years in the herbal community, this is the biggest issue that has been on the table,” said Mark Blumenthal, founder and executive director of the independent, nonprofit American Botanical Council (Austin, TX).

“I’ve been in the industry 10 years this week, and I think in terms of lasting impact, it is the most significant negative event that we have seen,” said Steve Mister, president and CEO of the Council for Responsible Nutrition (CRN; Washington, DC). (Blumenthal and Mister are Nutritional Outlook editorial advisory board members.)

Sales slippage within the omega-3 industry in recent years showed just how badly negative news can hurt the bottom line. (Sales trouble for omega-3s started with media frenzy over the much-criticized 2013 Brasky study claiming to link omega-3s with higher prostate cancer risk.)

While the supplements industry won’t know the dollar impact of the NY AG–related backlash for some time, the case is yet another battle in what lately looks like a war on the dietary supplements industry. “A very well-coordinated feeding frenzy has descended upon what is perceived by people to be a vulnerable industry,” said attorney Dan Dwyer at Ingredient Marketplace.

“This is a paradigm-changing moment in terms of the way consumers [feel] about the industry,” Mister added.

Just a minority of publications-includingThe New Yorkerand just this week the New York Daily News-have questioned AG Schneiderman’s use of DNA testing in his investigation. For the most part, industry leaders say, mass media has largely focused on criticizing the supplements industry. What’s more, no outlets have published any of the numerous letters to the editor sent in an attempt by industry members to explain why they say AG Schneiderman’s use of DNA testing is faulty, leaders say. (Read a CRN-sponsored white paper explaining the challenges involved with DNA testing.)

Is the dietary supplements industry losing control of its public image? “I think we’re coming to a day of reckoning,” said Mister. “Even if the DNA testing [used by the NY AG] is 100% wrong, there have been enough negative media reports that they start to build on themselves. So somebody is now writing the narrative, and the narrative is not one that we’re going to like.”

The only way to stop the train is if AG Schneiderman made his investigation results public and the industry was subsequently able to expose any flaws related to the AG’s DNA testing, supplement leaders say. But “people are no longer asking critical questions,” Mister said, including the media, whose positive coverage of AG Schneiderman’s investigation seems to forget that no one has ever seen the report nor verified the data that the AG has built his entire case on. “It was because the media was primed to believe that the industry was not someone to be trusted. So they never really jumped on board the transparency issue,” Mister said.

Industry leaders haven’t forgotten about the missing report, however. For an industry whose reputation hinges on testing that no one has been able to vet, getting that report is crucial. “The AG needs to release his data. He’s calling on industry to be transparent with the consumer, and as I pointed out this morning, there are lots of flaws in that report,” said Mister at Ingredient Marketplace. During his presentation, Mister pointed to some very big potential discrepancies within the AG’s test result numbers as the AG cited in the letters sent to accused companies.

Will the dietary supplements industry-or the public, for that matter-ever get a look at the results and methodologies behind AG Schneiderman’s investigation?

The fight continues. In a meeting between CRN and AG Schneiderman’s office this week, Mister said that the association “reiterated our request in that meeting twice, and we were flatly told that they will not give us any of the background, methodology, or results.” CRN is now filing a request for the report under New York’s Freedom of Information Law (FOIL), but Mister said the AG’s office will most likely deny that request by citing a need for confidentiality amidst the ongoing investigation.

Potentially, there are other ways individuals could try to get the report. If one of the cases the AG has brought against supplement companies proceeded to a courtroom, the accused company could at that point demand to see the full report during discovery, Mister said. But, he added, most of the companies “don’t want to do that. Nobody wants to go through that.” GNC, for instance, came to an agreement with AG Schneiderman’s office at the end of March without ever having seen the full report. To date, none of the companies accused has seen the report.

“I think the AG’s office knows that this report is very thin ice for them. So they are not going to give us the report if they can find any way to keep from giving it to us, because they know that if we have the actual report, it will confirm all of the suspicions that we have raised,” Mister said. Before deciding on next steps, he said, CRN will wait to see the fate of its FOIL request first. And as far as pursuing the matter in court against the AG, “We have not ruled that in or out at this point,” he said.

Report or no report, one thing is certain: in the face of such an onslaught, the industry needs to move quickly to determine its next move. Examining quality-assurance procedures company by company to assure GMP compliance is a good start (more on that discussion here), but considering the industry’s eroding image, the answer may need to be more immediate. “I think it does have to be a combination of things that can be implemented quickly to show change, to show movement, and then other things [can be done] that maybe are more longer-term,” Mister said.

Meanwhile, he said his group and others will continue trying to get AG Schneiderman to release the report. “We’re not done with that,” he said. “We’re continuing to push this.”

Jennifer Grebow
Editor-in-Chief
Nutritional Outlook magazine
jennifer.grebow@ubm.com

Also read:

The New York Attorney General wants better quality assurance for dietary supplements. So does the supplements industry. So how does it get there?

NY AG Takes Dietary Supplements Fight to Congress

NY Attorney General Forms Coalition in Case against Herbal Supplements

Editor: New York Attorney General Case Requires Strong Response, Supplement Leaders Say

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