Tag Archives: Warning Letters

FTC Sends Nearly 700 Letters to Brands!

On April 13th, nearly 700 companies selling dietary supplements and other health products received letters from the FTC, putting them on notice about claims being adequately substantiated and civil penalties that may occur if they are not. 

Did your brand make the list? Did your competitors’ brands make the list? Check here.

If you’d like to read the press release, or see the template for the letters sent, check here and here.

Regardless of who made the list and received the letter, the entire dietary supplement industry should be hearing the message loud and clear. And that message is to make only substantiated claims in your advertising and have adequate substantiation on hand at the time you make claims. If you are unsure how to comply with that, the FTC published a new Health Products Compliance Guidance document this past December. Clearly, they want this Guidance taken seriously.

If you received the letter, you should act fast and get your claims and substantiation lined up, as you will likely be on the front lines for a wave of enforcement likely to be coming. If you did not receive a letter, you might be a bit more under the radar, but we would advise the same thing. 

One of the things we tell clients repeatedly is that compliance can be a huge advantage, and it seems like it becomes more and more of an advantage for smart brands year after year. The truth is, most of your competitors have labels with regulatory violations that they do not know about and do not care about, a large number of your competitors have their products made in facilities that claim “cGMP-compliant” and “GMP-Certified” that fall short of the actual regulations in countless ways – usually starting right at the point of receiving raw materials, too many of your competitors are making explicit disease claims that make it difficult and unfair for you to compete, and virtually none of your competitors have adequate substantiation on hand for the claims they make in their advertising.

Yes, we are a very regulated industry, but enforcement is beyond low. And as we’ve seen with our clients time and time again over the years, having labels, cGMPs, and claims buttoned up can be a major advantage in the face of things like Amazon suddenly requiring cGMP documentation, FDA inspections, NAD cracking down on certain areas, California Prop 65 complaints, and mass letters from the FTC. What can turn into a major disruption and distraction for some brands, can also be a minor bump and chance to grab market share for other that are better prepared.

Dietary Supplement Experts has the experience in creating strategy around avoiding regulatory disruptions and distractions. We can help clean up compliance issues long before they ever become issues. You can keep selling while your competitors respond to Warning Letters, meet with lawyers, turn off ad campaigns, conduct recalls, lose customers, and wish they did things correctly earlier on.

Need claims substantiation for your product and advertising?

Not far behind dietary supplement label compliance review, one of our most common services for brands is building claims substantiation files. Here are three great reasons to consider this service for your brand:

1) COMPLIANCE – We’ve honed a robust format over the last 10+ years that has been presented and has held up to virtually all types of substantiation inquiries that our clients have faced. Claims substantiation is not optional – it is a legal requirement for your company. 

2) COPY WRITING – One of the biggest and most common mistakes we see is when brands write copy and make claims based on what competitors say. Do not make them fly blind and fall into this lazy trap – and put your company at risk. Our substantiation files include a main document that outlines your ingredients and the numerous claims that can be considered, as well as files containing the studies that would support those claims. We often use these files for creative kick off calls with writers to ensure they know the products that they are selling. 

3) PRODUCT DEVELOPMENT – We can create substantiation files for a new product, for and existing product, or for a product needing reformulation. In any case, our main substantiation document can be instrumental in giving your team a quick and easy method for dialing in doses, forms, combinations, delivery methods, etc. to ensure your product has maximum claims, uses the correct forms of ingredients, isn’t over-formulated and unnecessarily increasing product costs, and is safe and effective in your target populations. 

If you are interested in claims substantiation files that serve your legal requirements, but also serve your product development, advertising claims and angles, and bottom line, let’s discuss and get you into our schedule. Turnaround times are generally three to four weeks depending on your product. We have generous multiple-product discounting as well. Contact us today at experts@dietarysupplementexperts.com.

Top Supplement Label Errors of 2020

By Curtis Walcker, M.S.
January 24, 2021

In 2020, we saw 20 FDA Warning Letters posted citing label violations for dietary supplements. We tallied up all of the violations cited and put them into a single chart. For the most part, these are the same violations we see year after year. However, there were a few things worth taking note of. Here is what we found:

What was familiar?
We do tracking and compiling of FDA Warning Letters each year, and with regard to label violations, everything was pretty familiar. FDA was able to grab the same old low-hanging fruits that brands still find challenges with. As with years previous – incorrect common or usual names, missing plant parts for botanicals, missing ingredient declarations, and incorrect use of bars and hairlines topped the chart with very high numbers. Things like zero claims, intervening material, and the use of footnotes that should not be present can typically be traced back to brands trusting the templated system-generated Supplement Facts panels supplied to them by their manufacturers, or worse – copying competitor labels. No matter what the reason behind errors, the Warning Letters get addressed to the brand on the bottle, and not manufacturers or competitors. Shoring up label compliance is definitely one of the fastest and easiest risk-reducers for any brand.

How did our client labels compare?
New client labels were very similar in terms of what issues we resolved, and frequency in which they occurred. The great thing that occurs with returning or existing clients is that within a few labels together, the client begins removing template errors across all of their labels proactively, so our reviews become more streamlined and focused on product-specific errors. For instance, once a client figures out that they were missing serious adverse event reporting information on a couple of labels, they go back and put it onto all labels.

What stuck out?
More than anything, this is why we track Warning Letters and violations the way we do. You can go read the laws and regulations all day long, but Warning Letters shed light on what the FDA is focusing on, and how they are interpreting things. While nothing was really new here, beyond the usual violations, these three stuck out:

  1. Trade names are not permitted within the Supplement Facts panel.

    This may come as a big surprise to virtually all brands…and manufactures…and raw material suppliers. However, it is the case. The information panel of a label generally bears the Supplement Facts panel, ingredient statement, and name/place of business, and major food allergen labeling when applicable. All of these items are regulated in terms of their contents, placement, and formatting. Adding anything beyond what is required, becomes at risk of being what the regulations refer to as “intervening material”. And anything intervening and not required by the regulations is generally not allowed.

    In the Warning Letter to Market America, Inc. for instance, FDA noted to them that referencing their trademarked ingredients (SunActive® and Quatrefolic®) within the Supplement Facts panel was not permitted – referring to it as intervening material.

    This does create a bit of a conundrum. A brand invests more into their product with trademarked ingredients, and they want to let their consumers know. However, for FDA compliance, the Supplement Facts panel should not be that marketing vehicle. There are many other places more suitable on the label or in the labeling for marketing callouts.

  2. “Herb” and “aerial parts” are not acceptable plant parts to declare for botanicals.

    Again, probably surprising to a lot of brands. We see this come through on labels weekly. Plant part(s) declared for botanicals need to be specific. Understandably, FDA told R-Garden, LLC that “Cleavers herb” was inadequate, as “herb” is not a plant part. Less understandable, however, ForYou, Inc. and BHP Holdings, Inc. were told that “aerial parts” was also inadequate. The industry tends to use “aerial parts” when plant parts used consist of all parts above ground – much like “whole plant” is used when all parts are used. The challenge in labeling aerial parts one-by-one is that the lists could become long and ultimately be more misleading when parts are left out of the list. This is one we’d like to see some more clarity from the FDA on what exactly they are looking for.

  3. If a footnote in the Supplement Facts panel is not required, it is not allowed.

    This one is usually just a template error, usually passed along by a manufacturer, but a risk nonetheless. We see many Supplement Facts panels with both of the typical footnotes, “Daily Value not established” and “Percent Daily Values are based on a 2,000 calorie diet”. However, either one is only required and only allowed when it applies based on what is declared. FDA let LifeHealth Science know this, when they sent them a Warning Letter stating that their footnote was not permitted, as nothing declared required it.

If you recognize any of these errors in your own labels, or are unsure, we are here to help. We offer very affordable label compliance review service, fast turnaround times, and bulk discounting for multiple labels. Contact us today!

FDA Warning Letters 2015 Summary

By Curtis Walcker, M.S.
February 4, 2016

In 2015, the FDA issued 80 Warning Letters (WLs) to dietary supplement (DS) companies. This was a 12.68% increase on the 71 issued in 2014. The increase can in part be attributed to the large number of WLs issued to companies marketing products adulterated with non-dietary ingredients such as beta-methylphenethylamine (BMPEA) and 1,3-dimethylbutylamine (DMBA).

Number of 2015 Warning Letters

 

Inspections

Because many of the WLs sent were for the non-dietary ingredient violations, and inspections for those products generally involved review of the labels for ingredients, inspection types categorized as ‘labels’ were significantly higher than other categories in 2015. This did not equate to a proportionally high number of WLs citing label violations.

Inspection types resulting in WLs expanded in 2015. Social media sites have been receiving more scrutiny. The FDA is also looking for claims on online retail sites where companies are marketing DSs, such as Etsy and Amazon.

FDA Inspection Types

 

Geographic Locations

Below are heat maps of the continental Unites States showing the prevalence of WLs received by DS companies by State, as well as which States they were sent from. In 2015, companies in Florida, California, and Utah received the most WLs. The FDA tended to send the most WLs out of the District Offices located in Maryland, California, and Colorado.

2015-FDA-warning-letters-by-state

 

Violations

Disease claims were the most cited violation in WLs for 2015. Non-dietary ingredient adulteration violations were in a distant second place due to some crackdowns on particular ingredients. Violations in current Good Manufacturing Practices (cGMPs) and labels were cited in more than 20 WLs each, indicating continued challenges for companies in both areas.

2015-FDA-violation-types

 

Disease Claims

The FDA cited disease claims violations from a variety of places, demonstrating their increasing concern about what companies are saying and where they are saying it. Product names that were disease claims topped the list along with disease claims made on Facebook. New areas in 2015 include e-books, LinkedIn, and Tumblr.

locations

 

Not much changed in 2015 from previous years in terms of the types of disease claims marketers are illegally using. The top 15 should be no surprise. Combinations of many of these showed up in several of the WLs. The FDA generally only cites disease claims violations in WLs that are clearly explicit.

cited-claims

 

cGMPs

Violations of every Subpart of the cGMP regulations were cited in the 2015 WLs. Production & process controls and quality control Subparts saw the most violations. Companies failing to have adequate master manufacturing records (MMRs) and batch production records (BPRs) continues to be a major problem.

subpart-violations

subpart-violations2

 

Labels

Of the 80 DS WLs issued in 2015, nearly 30% of them cited violations for product labels. This number is likely deceivingly low because so many of the non-dietary ingredient WLs seemingly failed to also cite label violations for the offending products. All 23 WLs citing label violations highlighted errors within the information panels; only 13 involved errors within the principal display panels.

label-violations

One of the biggest label violations of 2015 involved matching the label’s recommended usage of the product to the declared Serving Size. The majority of the top 10 violations were made within Supplement Facts panels. Failing to include proper contact information for the reporting of serious adverse events associated with product use is a prevalent problem among labels.
labels
Note: All information in this article was derived in good faith and is believed to be accurate. Data was collected from all 2015 FDA Warning Letters issued to dietary supplement companies posted on the FDA’s website as of February 3, 2016.

FDA Warning Letter Amended

By Curtis Walcker, M.S.
November 8, 2015

making-the-correctionMany professions require continuing education to keep the professionals in those fields abreast of the trends and evolving research. For us that are involved in dietary supplement regulatory affairs, one of the best unofficial methods of continuing education comes in the form of FDA Warning Letters. A careful reading of these each week not only reminds us of the regulations, but shows us how the FDA is interpreting them, and which issues might be on their radar. In addition, when we are suggesting that our companies or client’s make changes to their manufacturing practices, labels, claims, etc., it can be easier at times to get buy-in when not only the regulations, but also one or more recent FDA Warning Letters can be brought to the discussion table to demonstrate the needs and the associated risks.

This month’s article is a short story about a recent FDA Warning Letter to a Company called New Dawn Nutrition, Inc., (previously) dated 8/7/2015. An excerpt of one of the cited violations for their labels read as follows:

“Your “NDNFA Prime Pure Super Protein” (Cake Batter and Vanilla Milkshake varieties) product labels declare potassium present at “5%” of the Daily Value, phosphorus present at “9%” of the Daily Value, and calcium present at “17%” of the Daily Value~ however, according to 21 CFR 101.9(c)(8)(iii), the percentages for vitamins and minerals shall be declared in increments of 2-percent up to and including the 10-percent level and the nearest 5-percent increment above 10-percent and up to and including the 50-percent level.”

This violation would have been pretty mundane if it was cited for conventional food products, but these were dietary supplements. And for dietary supplements, there is a separate regulation from 21 CFR 101.9(c)(8)(ii), which is 21 CFR 101.36(b)(2)(iii)(C), that reads:

“The percentages based on RDI’s and on DRV’s shall be expressed to the nearest whole percent, except that for dietary ingredients for which DRV’s have been established, “Less than 1%” or “<1%” shall be used to declare the “% Daily Value” when the quantitative amount of the dietary ingredient by weight is great enough to require that the dietary ingredient be listed, but the amount is so small that the “% Daily Value” when rounded to the nearest percent is zero (e.g., a product that contains 1 gram of total carbohydrate would list the percent Daily Value as “Less than 1%” or “<1%”).”

Further, the Dietary Supplement Labeling Guide provides the following:

What rounding rules must I use for expressing the % DV?
You must express the percentages to the nearest whole percent, except that “Less than 1 %” or “< 1 %” must be used when the amount present is big enough to be listed, but so small that the % DV when rounded to the nearest percent is zero. For example, a product containing 1 gram of total carbohydrate would list the % DV as “Less than 1 %” or “< 1 %.”

So why is any of this important? Because the labeling regulations and FDA guidance say that the Daily Value percentages used on the labels above should be rounded to the nearest whole percent, as they appear to have been. However, the FDA Warning Letter was holding them to the rounding used for conventional foods. And if you are a label reviewer that has been doing it one way or the other, this FDA Warning Letter might have led you to believe you have been doing it incorrectly, or worse, reinforced your incorrect rounding.

Because we review hundreds of labels each year, getting the issue clarified was extremely important. Even though it clearly looked like a mistake on the FDA’s part, there is too much on the line to make that assumption. As such, we sent a letter to the FDA District Office with the question. Although it took a few weeks to get a response, their re-review recognized the error. So if you happened to have had a feeling of déjà vu when you again saw the New Dawn Nutrition, Inc. FDA Warning Letter in late September, it was because it was amended to not include the Daily Value rounding violations and reposted on the FDA’s website.

In the end, all is fixed. Anyone that felt their stomachs drop or lost nights of sleep thinking that all of their Daily Value percent declarations were off can rest knowing that it was all just a minor mistake. There are so many label regulations to keep track of, so it is understandable. At Dietary Supplement Experts, we appreciate the FDA’s swift recognition and correction.

If you are interested, the link to the amended FDA Warning Letter is at http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2015/ucm458141.htm. In addition to the above item of interest, this one is very insightful on cGMP issues, misuse of the FDA logo, proper units of measure, and the findings of the FDA analysis of some of the products will make you wonder how those violations were not in the mainstream news.

First Seven FDA Warning Letters for Supplement Labels in 2015

By Curtis Walcker, M.S.
March 29, 2015

fda-warningOnly three months into 2015, the FDA has already issued 19 Warning Letters to dietary supplement companies, seven of which cited product label violations. This is the same number of Warning Letters citing cGMP violations. Five companies were cited for both label and cGMP problems. It is not only clear that the FDA is gathering and reviewing labels during facility inspections, but also that companies continue to struggle to label their products compliantly.

In the seven Warning Letters citing label violations, the FDA managed to find problems with every mandatory label component:

Statement of identity: One company did not identify their product with the term “dietary supplement” as part of a statement of identity.

Net quantity of contents statement: One company neglected to include one. Another stated their net quantity of contents in U.S. Customary terms only.

Supplement Facts panel (SFP): All seven companies had issues with their SFPs. These violations included: no SFP, missing or incorrect Serving Sizes and Servings Per Container, zero amount claims, missing dietary ingredients, missing plant parts for botanical ingredients, and declaring (b)(2)-dietary ingredients out of order.

Ingredient statement: One company was missing ingredients in their statement.

Name and place of business: One company failed to include their name and/or place of business on their label as required.

Other: Two companies neglected to include a domestic address and/or domestic telephone number through which serious adverse events associated with the products could be reported. One company was using two languages on their label, but did not repeat all of the required label information in both languages.

In all of 2013 and 2014, the two most common label violations cited in Warning Letters involved inadequate statements of identity and missing plant parts for botanical ingredients. In 2015, the most common one (three of seven companies had this problem) is having the wrong Serving Size in the SFP. Take notice and review this aspect of your own labels. Here is what you need to know:

  • One serving of a dietary supplement equals the maximum amount recommended, as appropriate, on the label for consumption per eating occasion, or in the absence of recommendations, one unit (e.g., tablet, capsule, packet, teaspoonful, etc).
  • If you recommend one capsule with a meal up to three times per day, your Serving Size is one capsule.
  • If you recommend one to three capsules per day with a meal, your Serving Size is three capsules.
2014 FDA Warning Letters Summary

2014 FDA Warning Letters Infographic

By Curtis Walcker, M.S.
January 20, 2015

In 2014, 31 of 71 (44%) of FDA Warning Letters sent to dietary supplement companies cited label violations. Compared to 2013, the number of label Warning Letters, as well as the percent were virtually the same (30 letters and 45%, respectively). The Supplement Facts panel, ingredient statement, and statement of identity were the label components holding the most violations. Specifically, the most cited violations (by number of Warning Letters) were improper statements of identity, failing to include the plant parts from which botanical ingredients were derived, and failing to declare ingredients in the ingredient statements, such as the ingredients of capsules.

2014 FDA Warning Letters Summary

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2013 FDA Warning Letters Summary

By Curtis Walcker, M.S.
May 1, 2014

2013 Infographic

 

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