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June 21, 2017

GAO Aims to Increase Consumer Clarity Regarding the Regulation of Memory Supplement Advertising

Seller Beware: Consumer Protection Insights for Industry

People are willing to do anything to improve their memory (especially if it means drinking champagne and eating dark chocolate!). It's no surprise that dietary supplements that are intended to improve memory are a booming market. According to a recent report, the surprise is how little consumers know about who regulates the promotion of such products.

On June 15, the Government Accountability Office (GAO) released a report recommending that the U.S. Food and Drug Administration (FDA) and Federal Trade Commission clarify their roles in overseeing marketing of memory supplements on the internet. Generally speaking, the FDA and FTC share oversight of dietary supplement marketing and claims, based on a 1971 Memorandum of Understanding (MOU) between the agencies. Under the MOU, FDA has primary jurisdiction over labeling, while FTC exercises primary jurisdiction in regulating the truth or falsity of all other advertising.

The GAO found that while memory supplement advertising is primarily on the internet (as opposed to other mediums, such as TV or magazines), consumers and other stakeholders are either unaware or unclear about how the agencies share oversight of internet advertising.The FTC has never published formal guidance on this issue (although it has discussed how to effectively format disclosures in internet advertising in the FTC's Dietary Supplement: Advertising Guide for Industry,.COM disclosures, and other guidance), and the FDA's guidance is limited to a 2007 Dear Manufacturer letter on food labeling (recognizes that company websites that promote a regulated product and allow a purchaser to purchase the product directly from the website are likely to be considered "labeling"). The GAO found that the lack of clarity could risk that consumers would not report issues to the proper agency, and/or that it could take longer for the appropriate agency to learn about a potential problem.

The FDA and FTC are now working to develop and provide additional guidance to consumers, which delineates the agencies' differing roles in overseeing dietary supplement marketing on the internet. And the GAO's report suggest that increased scrutiny of such claims could be forthcoming. Sellers of memory supplements should beware of this report and the likelihood that forthcoming FDA and FTC guidance can increase the level of consumer complaints submitted regarding the products.

© Arnold & Porter Kaye Scholer LLP 2017 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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Pari Mody
Pari R. Mody
Senior Associate
Washington, DC
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