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Is DSHEA still the right way to regulate supplements?

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The evolution of condition-specific product marketing is but one force tugging at the seams of the Dietary Supplement Health and Education Act, which makes clear the marketing claims that are—and are not—permissible for supplements. Would a revised law better support supplement sales for retailers?

The creation of the Dietary Supplement Health and Education Act (DSHEA) in 1994 cracked the door for supplement companies to be able to describe general health benefits for various product categories. Since then, condition-specific marketing has become the norm for supplement makers and sellers and, today, one can walk into a health food store or other supplement retailer to find rows of products targeted to immune support, gut health or other specific health issues.

It makes sense. The United States is deeply entrenched in an allopathic medical model that categorizes health into specific problems or areas of focus. Shoppers, and their health practitioners, understand this model and it’s what makes the supplement aisle more accessible, at least for many.

As we explore in the November issue of Natural Foods Merchandiser, the world of condition-specific marketing is evolving in near lockstep with the changing realities of health and wellness in the United States. The old category standbys such as heart health, joint health and immune support remain vibrant supplement sales drivers. Yet, other categories are strengthening as new innovative products designed to address demographic changes and emerging health concerns take hold in the market. For instance, as stress and sleeplessness take their tolls on American health, we are seeing the creation of more sophisticated mood-support and inflammation-busting supplements.

This is great news for natural products retailers looking for new ways to bring shoppers into the supplement aisle and educate them about the latest natural offerings targeted to specific health needs. The trick, of course, is walking that thin line between what you and your floor associates can and cannot say about the dietary supplements you sell. DSHEA clearly stipulates that supplement marketers—and the retailers who sell their products—can make structure-function claims, such as “helps support a healthy immune system,” for supplement products. They can’t, however, say that a supplement can mitigate, prevent, treat or cure any disease—ranging from the common cold to cancer.

Pondering the future of DSHEA

Navigating this line becomes more difficult in the increasingly sophisticated realm of condition-specific product marketing. After all, most of the conditions driving supplement sales are at least indirectly disease related. Blood-sugar management supplements, for instance, help balance a person’s blood sugar so that they can either manage or prevent diabetes.

The continued rise of condition-specific supplement marketing and the growing array of products backed by serious clinical science make me wonder what the future may hold for DSHEA and supplement regulations. I’m not the only one pondering this issue. Earlier this year, in a well-reasoned article, Nutrition Business Journal posited a rather provocative question to the supplement industry: Is the Dietary Supplement Health and Education Act of 1994 still the right way to regulate today’s supplement industry? The piece, written by my New Hope Natural Media colleague and the NBJ editor-in-chief, Marc Brush, included input and insights from a wide variety of supplement industry insiders on the topic.

NOW Foods CEO Al Powers told NBJ this: “[DSHEA] is still relevant today. You wouldn’t want to open it up as an industry. All that would do is end up weakening the consumer protections granted under the current law.” Todd Harrison, a partner at the law firm Venable LLP, had a slightly different view: “From a safety perspective, DSHEA works great. From a claims standpoint, it’s just okay.”

Loren Israelsen

In response to NBJ’s article, Loren Israelsen, executive director of the United Natural Products Alliance and one of the authors of DSHEA, penned an editorial for NBJ’s September 2012 issue in which he posed his own questions: “Knowing what we know today,” Israelsen wrote, “would we have written DSHEA differently? If we had to write a new DSHEA built to last for the next 20 years, what assumptions would we have to make about the future?”

I don’t have the answers to these tough questions. I do, however, know that if you are in the business of selling dietary supplements, these are important issues for you to consider with the larger supplement community.

If you were to rework DSHEA, what changes would you make to better position supplement regulation for the future? Share your thoughts in the comments below.

Discuss this Blog Entry 2

Neil (not verified)
on Nov 11, 2012

Yes this is great, for more stringest regulations to tegulate the dietary supplement industry. There are a lot of "fictious" products out there, giving people false hopes. Also most of these people that manfacture the supplements have absolutely no meical background, so how can they make medical claims. They need to submit hypoteses supporting these claims to the FDA

on Aug 11, 2014

Funny you should ask. Rather than rework DSHEA -- why not work with what it is. Rather that re-engage the legal "sausage factory", take the Law as written and work within the framework of regulations. Ok this is not a new idea. I published the thoughts in 2001 and at that time the feedback I got was along the lines of "Gee this is great -- it'll only take 15 years to implement". Well, guess what? It's nearly 15 years on and we haven't even approached the opportunity presented in that thought. What we have all missed in that time period is that the US Law (prior to heavy handed interpretation that the industry has done little to nothing about) can be distilled down to a simple phrase: "You are what you claim". The use of claims structures to present information and provide meaningful information to consumers (see the E in DSHEA and remember it stands for EDUCATION) requires an address of allowable claims and the attendant criteria for allowance of such claims. Believing that a "re-tooling" of DSHEA will result in benefit is naive at best. Work with what is present. Therein lies the solution to the challenges. And yes, it may take 15 years but I'll wait and work with you.

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