The Dietary Supplement Scandal

There are 65,000 dietary supplements on the market, and almost half the population uses at least one of them. Americans spent $13 billion on dietary supplements last year, according to the Washington Post.  There are disturbing indications that nearly all  that money is wasted — or to put it more bluntly, that the industry is essentially a fraud on the public.  For instance, a 2011 study found that 20% of weight control supplements made illegal health claims.Here are some recent news items:

  • Last week, the New York Attorney General ordered removal of many of these products from sale after tests showed that they didn’t even contain the key ingredients that they advertised.  Only a quarter of the products they tested even contained what was supposed to be their main ingredient. (Of course, that ingredient was probably worthless anyway!)
  • At the end of last month, the D.C. Circuit upheld the FTC’s finding that the industry had completely misrepresented research about one of the most popular dietary products, pomegranate juice.  Rejecting the company’s claim that it’s advertising was shielded by the First Amendment, the court prohibited the seller from making health claims without the support of a randomized clinical trial.
  • JAMA study in October found that safety recalls of supplements don’t work: they stay on the shelves anyway.  And those recalls are reserved for the most dangerous cases.

It’s not just money at stake: the industry itself reports about 1500 cases a year of serious illness requiring hospitalization. That’s not to mention the cases that aren’t reported.  It also doesn’t include what may be the most serious type of harm: the people who don’t get the real medical attention they need because they think they can solve a problem with worthless over-the-counter pills.

Why aren’t these supplements subject to normal FDA requirements for other drugs?  It’s not an oversight.  Instead, it’s a fairly squalid story of special interest legislation by Sen. Orrin Hatch. Some twenty years, Hatch succeeded in exempting the industry from the kind of oversight applied to the other drugs.  It’s been a brilliant success for everyone but the consumers — a quarter of the industry is connected with his home state, and his friends and family have made a bundle of money. (Did I mention that his son is a lobbyist for the industry?)  As the NY Times puts it: the industry has made “many of his closest associates and family members rich,” and ” they’ve rewarded him with sizable campaign contributions.  Wasn’t it William Vanderbilt who coined the phrase, “the public be damned”?

You don’t have to be a liberal to think something should be done about this deplorable situation.  Libertarians believe that a core function of government is to protect people’s property from force or fraud.  Here we have a case of fraud on a massive scale.  There should be no dispute about the need for corrective action.

 

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Reader Comments

2 Replies to “The Dietary Supplement Scandal”

  1. There should be no call for government action to respond to what may be described as dietary supplement scams. This is the age of the internet, where communication is easy and rather instantaneous and immensely powerful. Proposing government solutions for such problems is like trying to cure a headache with a hammer.

    Irresponsible companies can be publicly exposed and humiliated and destroyed in the marketplace if they don’t clean up their business practices. Quickly. With no taxpayer funding, no grandstanding politicians, no new regulations, no expanded role for regulators.

    The internet shows no mercy. Orrin Hatch and others like him can’t protect companies from the wrath of public opinion. Let information flow and progress, including improved safety, will result.

    Bringing more products under FDA control will be a huge waste of taxpayer money, and result in an even more bloated federal regulatory agency which already causes catastrophic damage to human health and untold tragedy in loss of life.

    The FDA retards progress in the medical sciences and astronomically increases health care costs. Health care costs are artificially high because the market has not been allowed to develop new and lower cost technologies, drugs, and treatments.

    Costs are coming down amazingly and new and better products and services are being created often beyond our wildest imagination, wherever new technologies are allowed to develop and flourish.

    Information flow will cure food supplement scams, and all that requires is free and open discussion and criticism and debate, not government-controlled products or messages.

    1. I agree that there’s a large role for the private sector here. However, I think you’re underestimating the difficulty of creating IP rights in basic science, and the corresponding desirability of public funding for scientific research.

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About Dan

Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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