Should You Trust AI Programs for Dietary Supplement Claims Compliance?

Over the years, we have been approached multiple times about artificial intelligence programs for reviewing and correcting dietary supplement copy for FDA compliance. We have been suggested by clients to create it. We have been asked by tech groups to co-create it. We have been pitched it by those that have attempted it. And while the thought of it can be a little exciting, that excitement quickly fades once you start mentally pressure testing the concept, and sorting through the countless ways it would be likely to fail you, and possibly increase risks while simultaneously “mitigating” risks.

Before you go off-loading your regulatory compliance onto a computer program, we have compiled a list of things you should consider. And while our rough list topped 20, we will give you our top 9.

  1. Content is King, but context is Queen. While a program might be able to scan for words and phrases in isolation, it could be difficult to recognize two things that might be okay in isolation, but create an impermissible claim when paired together.

    Example: Claim says “Supports joint comfort” with an adjacent image of an arthritic hand with red enhancements to portray pain and inflammation. The claim might be okay on its own, but quickly becomes a high-risk disease claim in the context of the image.

  2. Finding implied disease claims. You often get out of something what you put into it. As could be the case with programs looking specifically for human-inputted disease terms. An implied disease claim can be just as risky as an explicit one.

    Example: If the program screens for the terms “diabetes” and “hyperglycemia”, and overlooks the implied disease claims “our product can reduce your need to take insulin” or “improves fasting glucose and HbA1c”.

  3. Overlooking images that create disease claims. Many brands do not understand that images, vignettes, and symbols can constitute disease claims. It might be challenging enough loading a program up with words and phrases, but trusting it to catch an image of an abnormal tissue or organ is even more difficult.

    Example: Your product is for respiratory health and all copy is compliant. However, an image is used of a woman sneezing with pollens floating in the air. Would that be nuanced enough to be caught?

  4. Catching disease terms at times where they are okay. Just because a disease term is used, does not automatically mean it is non-compliant and in need of editing or removal.

    Example: You feature a customer testimonial that mentions disease, but is not making any disease claims about the product. “After COVID lockdowns, we finally returned to in-person classes at the university. Product X has helped me focus on my studies.”

  5. Not accounting for claims substantiation. Making disease claims may land you in some trouble, but making unsubstantiated claims may drain your bank. Claims must align with the support behind them. AI is not going to know if your claims are truthful, not misleading, and adequately substantiated.

    Example: Your product features the latest trending ingredient. Some of your competitors are claiming this ingredient helps with weight loss, improves sleep quality, reduces stress levels, increases energy, and so on. Nothing necessarily claiming to treat or prevent diseases. But your only substantiation is “well Brand A and Brand B say it, so it must be true.” Your risk persists.

  6. Text in images. On some advertising and distribution platforms, programs are already being used to search for higher-risk terms in copy. It did not take long for marketers to realize that they could cheat some of these systems by incorporating disease claims into images so the text cannot be found. Will programs recognize text in images (not to mention videos)?

    Example: All your copy is compliant, but you make a disease claim hidden in one of your images.

  7. Overlooking scientific references. While having scientific references on hand to support claims is critical, it might not always be the best idea to publish their citations in marketing copy. Especially if those references involve disease outcomes, and imply that a product will also impact disease. Brands have often attempted to mitigate risks in this area by omitting parts of citations such as the title, as to remove some disease words from a page. It often helps, but not always.

    Example: You have a study to support a specific claim: Zhao JV, et al. Effect of Berberine on Cardiovascular Disease Risk Factors: A Mechanistic Randomized Controlled Trial. Nutrients. 2021 Jul 26;13(8):2550. You opt to remove the title to take “cardiovascular disease” off the page and publish as: Zhao JV, et al. Nutrients. 2021 Jul 26;13(8):2550. When a program might have found the offending terms before, it would likely miss this “sanitized” version.

  8. Wordsmithing and editing can be difficult. For most disease claims, there can be an alternate phrasing applied to make them structure/function claims while keeping similar contextual meaning, still aligning with the supporting science, and satisfying both compliance and marketing folks. Sometimes these edits are easy, but other times it involves a lot of debate and creativity. It would make sense that programs could suggest changes or give guidance on flagged claims, but without full consideration, the correction might just create a whole other problem.

    Example: A program flags a claim that an ingredient of a product was shown to reduce blood pressure in a major clinical trial, and provides guidance that blood pressure claims should be written to the effect of “maintaining already healthy blood pressure in healthy individuals”. The claim gets corrected in this way, but no longer aligns with the study that might have involved a significantly hypertensive population that saw modest improvements with a treatment.

  9. Missing that human touch. Regulatory work is black and white on its face, but the grey reality involves a lot of context and nuance and consideration of individual brands’ risk tolerances. What might be a good strategy today, can change in an instant following changing laws or regulations, new guidance and policies, enforcement trends, industry trends, emerging health conditions, and so on. How often will your program update to account for the changes? And factoring back in the human touch with technologies will still be a challenge with regards to training, interpretations, user/employee turnover, marketers refusing to accept regulatory changes, and many of the normal challenges we already deal with daily without adding a computer program to the mix.

Admittedly, creating a list like this does stir some creativity, and ideas on how to overcome these challenges. However, it is still very difficult to trust that issues like these and a myriad of others will be solved in the foreseeable future. But for now, we are not suggesting that clients use artificial intelligence to write marketing copy, and we are not at all suggesting that clients trust artificial intelligence to ensure their copy is compliant.

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

Final Nail in the CBD Coffin?!

Recently, the FDA gave a conclusion to the CBD story. In short, they reconfirmed that CBD is not allowed in dietary supplements or conventional foods, and confirmed that they do not intend to pursue rulemaking that would allow it. 

Will this “news” do anything to change the market flooded with these illegal products? Unlikely. There is a segment of the industry that has so far largely ignored the red flags such as the droves of FDA Warning Letters (lots of them), the scant science to give any credence to the claims (“but Big Brand X says it’s good for insomnia, pain, depression, COVID-19, etc.” is not substantiation), the fact that most legitimate manufacturers won’t touch CBD, the lack of banks to process the sales, the lack of networks that will run ads, the wacky labeling rules – aka violations (somehow isolated CBD = hemp extract), and so on. Many convinced that the all but irrelevant 2018 Farm Bill legalized CBD in supplements and foods, and so felt justified to join the mob of CBD sellers. 

Will FDA enforcement change? Time will tell. Probably just more of the same. Expect to see continued Warning Letters for products making disease claims, with reminders that CBD isn’t a legal dietary ingredient. 

DSE has dozens of clients working with CBD. Our advice generally has centered around risk mitigation – not making disease claims, not making unsubstantiated claims, labeling the products compliantly as possible (as if CBD were legal), and keeping a close eye on product quality. Risk of selling CBD products might be low, reward might be high, but make no mistake – CBD in supplements has not been legal, is not legal, and will not become legal according to the FDA

FDA Confusing on Plant Parts

For years, one of the most common violations cited in FDA Warning Letters has involved missing plant part(s) declarations for botanical ingredients. Specifically, the regulations require that the part(s) of the plant (e.g., root, leaves, seeds, etc.) from which a botanical dietary ingredient is derived be declared in the Supplement Facts panel. A few compliant examples: “Garlic bulb”, “Garlic (bulb)”, or “Garlic bulb extract”. The only exception for including plant parts would be for algae. 

While this violation is extremely common, it is also one of the easiest to comply with and prevent from ever becoming an issue for your brand. Raw material suppliers should be providing this critical information, it should be part of raw material specifications at the manufacturer, and should be communicated on all respective labels. However, some simplicity seems to be lost when it comes to raw materials using aerial parts, and that designation being declared on product labels. 

We’ve seen “aerial parts” listed on raw material data sheets indicating all above ground parts. We’ve seen 100s of labels using that plant parts declaration, and never really batted an eye about it being inaccurate or misleading. However, a series of FDA Warning Letters in the past few years have made us question the declaration, and even advise clients about it. 

Some FDA Warning Letter excerpts on this topic:

To ForYou, Inc.

Your Thin-Ergy AM and Thin-Ergy Boost products are misbranded within the meaning of section 403(s)(2)(C) of the Act [21 U.S.C. § 343(s)(2)(C)] because the label fails to identify the part of the plant (e.g., root, leaves) from which each botanical dietary ingredient in the product is derived, as required by 21 CFR 101.4(h)(1). For example, the labels fail to declare the specific part of certain plants that use the term “aerial parts.”

To BHP Holding, Inc. 

Your Neem Synergy and Cocktail Liposomal products are misbranded…in that the labels fail to identify the part of the plant (e.g., root, leaves) from which each botanical dietary ingredient in the product is derived…For example, those botanical dietary ingredients that identify the part of the plant as “aerial parts” fail to specify the exact aerial parts.

To R-Garden, LLC

Your Memory Formula, Herbal Blends Eyes System, Herbal Blends Liver Gallbladder System, Milk Thistle Formula, and Herbal Blends Prostate System products are each misbranded…because the label fails to identify the part of the plant (e.g., root, leaves) from which each botanical dietary ingredient in the product is derived, as required by 21 CFR 101.4(h)(1)….For your Herbal Blends Eyes System, “aerials” are not a specific plant part. 

To Marco Pharma International, LLC

Your Para A and Absinthium products are misbranded…in that each label fails to identify the part of the plant (e.g., root, leaves) from which each botanical dietary ingredient in the product is derived…For example, your Para A and Absinthium product labels fail to declare the specific part of certain plants that use the term “aerial part” or “aerial portion”.

To Let’s Talk Health, Inc. 

Your Agua Vitae “Water of Life,” Brain Booster, Prosta-Plex Plus, Diatrol Plus, and Menopause products are misbranded…because the labels fail to identify the part of the plant (e.g., root, leaves) from which each botanical dietary ingredient in the product is derived…The Menopause product label lists “aerial part” which is not a specific part of the plant for the alfalfa in the “Proprietary MenoRelief Complex.”

To TruVision Health, LLC

Your Complete™ Women’s Multivitamin product is misbranded…because the label fails to identify the part of the plant (e.g., root, leaves) from which each botanical dietary ingredient in the product is derived…We note the term “Horsetail Extract (Aerial Parts)” does not comply with this requirement.

Given the trend in citations for declaring plant parts as “aerial parts”, “aerial portion”, or “aerials”, it would seem that brands should be more specific in their plant part declarations in order to appease the FDA. As we advised clients of this, many of the conversations that followed were almost always similar. The question back was immediately, “Well what should we put instead, if our manufacturer and raw material supplier have documentation that aerial parts is accurate?” Our response to that was muddy at best – to declare individual parts as best you can. But of course, sometimes what would come back would be too few parts (e.g., stem and leaves) to accurately represent all above ground parts, or it would be too complex to fit onto a label, where a dozen or more parts would be revealed. Nothing seemed to rival the accuracy of simply “aerial parts”. 

Knowing that we’ve seen FDA review many labels listing “aerial parts”, many raw material specifications listing “aerial parts”, many MMRs and BPR listing “aerial part” without apparent issue, this was a challenging thing to comment on clearly. We have also seen FDA receive new dietary ingredient notifications for botanicals using aerial parts, and find “aerial parts” listed as a plant part in FDA’s Botanical Drug Development guidance document. And then we saw the recent Warning Letter sent:

To Western Herb Products, Inc. 

Your Wormwood/Aloes dietary supplement is misbranded…in that the labels fails to identify the appropriate part of the plant (e.g., root, leaves) from which each botanical dietary ingredient in the product is derived, as required by 21 CFR 101.4(h)(1). For example:

a. The label indicated that Artemisia absinthium is derived from the leaf part of the plant, however, the specification sheet indicated that the botanical ingredient is derived from the aerial parts, which include the entire plant parts that grow above the ground…The plant part declared on the product label must be consistent with the actual plant part identity as indicated on the specification sheet.

Reading this section of the Warning Letter seems to indicate that FDA here recognizes “aerial parts” to mean the entire plant parts grown above the ground – and also seems to indicate that the violation could be corrected by declaring “aerial parts” on this particular label. 

Going forward, unless we get some more clarity from FDA or otherwise – as long as our clients are declaring accurately “aerial parts”, we are not going to comment on it for change. This declaration does not seem to have a better alternative to match conciseness on a label. 

Tune Up Your FDA Compliance!

It’s difficult fix a problem if you don’t know there is one to begin with – which is the case with many clients we work with. So, we’ve compiled a brief set of checks that you can quickly and easily self-audit with. While very far from being all-inclusive, these checks touch on some of the lowest-hanging fruits and most common violations seen. If you recognize one or more with your brand, it doesn’t guarantee you are violating regulations, but it would be a strong indication that you have something to look at.

Red Flags


  • Are any of your botanical plant parts declared as “aerial parts” or “herb”?
  • Are there any zeros (e.g., 0 mg or 0 g) in the Supplement Facts panel?
  • Are you missing a U.S. phone or address where adverse events can be reported?


  • Are you making explicit or implied claims about COVID, flu, or cold?
  • Do you have any unqualified inflammation or pain claims?
  • Are you making claims about hangovers?


  • Do your certificates of analysis (COAs) list “by input” as the only testing method to ensure label claims specifications are met?
  • Is your manufacturer registered with the FDA?
  • Do you not have and follow your own set of written procedures (SOPs) for things not conducted by you manufacturer or other contracted partners (e.g., returned dietary supplements, product complaints, reserve samples, supplier qualification, etc.)?


  • Does your product contain cannabidiol (CBD)?
  • Does your product contain n-acetyl l-cysteine (NAC)?
  • Does your product contain kratom?

Could you answer “yes” or even “I don’t know” to any of these? If so, it’s not necessarily a reason to panic, but you should be concerned. Sometimes brands take calculated risks because the potential reward might out-weight them. But other times, they take uncalculated risks because they are unaware, see other brands doing something, or they are just marketers that do not know or care about following the rules. In any case, we are here to help. If you have something questionable, we can help determine if you are at risk, explain to you why you are at risk, and help you make the corrective actions to reduce or remove the risk. Contact us today to get a free assessment of your situation.

Label Review Tools Part 2

If you are a frequent reviewer of dietary supplement labels, you have probably found that your speed and efficiency increase when you have your “tools” readily accessible. All the way back in 2014, we published the Part 1 to this article, and are finally making good on the Part 2. The previously named tools included 1) the regulations and guidance documents, 2) a calculator for percent Daily Values, and 3) the FDA Warning Letters published weekly. Here are three additional tools to use and where to get them.

Tool #4 – Herbs of Commerce
It is pretty tough to properly label botanical ingredients without this critical reference tool. In fact, 21 CFR 101.4(h) actually requires that the common or usual names of dietary ingredients that are botanicals (including fungi and algae) be consistent with the names standardized in Herbs of Commerce. It can be purchased through the American Herbal Products Association’s website here. You will be amazed to find how many “common” names used for botanicals are not technically appropriate for labeling.

Tool #5 – FDA’s high-resolution Supplement Facts panel examples
We share the link to this tool with clients and designers maybe more than anything else. And while you must have some knowledge of required formatting and when and where to use certain formats, the FDA’s High-Resolution Examples of Different Supplement Facts Labels in the New Format is invaluable for quickly viewing a range of Supplement Facts panel types. This is a far safer model for your own labels than competitor labels!

Tool #6 – A (NEW!!) % Daily Value calculator
Although this is the same tool we recommended in the Part 1 of this article, enough time has passed that the labeling regulations have been changed, and with them came many new Daily Values and even units of measure. So once again, if you are currently using a regular calculator for determining your declarations, you are wasting far too much time. Using a program such as Microsoft Excel, you can create your own spreadsheet, where you can enter in the label values for nutrients and it will give you the percentages. A proper and efficient one will be built so that all of the nutrients are already in the order that they must be declared on the label, the correct nomenclature is used, the defined units of measure are used, and the numbers are automatically rounded to the nearest whole percentages. Not up to building one or just need a better one? Our newest version can be downloaded for a small fee here.

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!

CFUs or Milligrams for Probiotics?

By Curtis Walcker, M.S.
September 24, 2018

It’s the age-old label debate – Marketing wants to declare probiotics with CFUs, Regulatory want to declare them in milligrams. Marketing has strong arguments for CFUs – the studies report in CFUs, CFUs make sense for comparing products, competitors use CFUs, and so on. The Regulatory argument is that the regulations require milligrams. So, who is correct? Technically, the Regulatory argument wins here, but as of late, there is more to this story.

Historically, the regulations have required that ingredients such as probiotics 1) be declared with quantitative amounts by weight per serving, and 2) that those amounts be expressed using metric measures in appropriate units, which in most cases for probiotics means milligrams. However, after 20 or so years, the FDA proposed much needed changes to the existing nutrition labels. In the comments submitted, the request was made for the FDA to consider allowing additional units of measure when metric weight is not the most appropriate. Examples given were CFUs for probiotics, and enzyme assay units for digestive enzymes. The FDA responded:

“We decline to permit the use of additional units of measure for dietary ingredients. The comment provided the examples of CFUs for probiotics and enzyme assay units for enzymes; however, the broader change suggested in the comment, by including “other appropriate units of measure,” would allow for the use of units of measure for dietary ingredients other than just probiotics and enzyme assay units.

We recognize that manufacturers are using a number of different units of measure for probiotics, enzymes, and other dietary ingredients. We need to fully evaluate each unit of measure for dietary ingredients to determine if it is appropriate for use on the Supplement Facts label, and if there are any implications to allowing for the use of such units of measure on the label. Because of the complexity of these labeling concerns, we plan to issue information related to this subject at a later date. We have, therefore, finalized § 101.36(b)(2)(ii)(A) without change.”

In early September 2018, the FDA released its Draft Guidance for Industry: Policy Regarding Quantitative Labeling of Dietary Supplements Containing Live Microbials. In this document, the FDA states that they intend to exercise enforcement discretion for companies that choose to declare CFUs in addition to weight for probiotic ingredients if the following seven conditions are met:

  1. The quantity is first listed in terms of weight;
  2. The declaration of quantity in CFUs is expressed in a manner that is clearly separate and readily distinguishable from the weight, e.g., as a parenthetical or in a subset line;
  3. The declaration of the quantity in CFUs is formatted in clear terms that can easily be understood by a common reader, e.g., 10 billion or 300* (where the unit that “*” is intended to represent is a typical measurement of CFUs and is clearly indicated elsewhere in the Supplement Facts label);
  4. The declaration of quantity in CFUs is accurate and not misleading, does not render misleading other aspects of the Supplement Facts label, or other aspects of the product label;
  5. The declaration of quantity in CFUs measures only live microbial ingredients and does not include inactive, dead, or nonviable organisms;
  6. Live microbial dietary ingredients in a proprietary blend are listed in descending order of predominance by weight; and
  7. The product label otherwise complies with all applicable laws and regulations.

Moving forward, it seems that both Regulatory and Marketing groups get what they want for Supplement Facts panels now when it comes to probiotics. The question that remains is how should a compliant label look with both CFUs and milligrams declared? Here is our interpretation for single and dual line declarations:

How Much Does Dietary Supplement Label Review Cost?

By Curtis Walcker, M.S.
February 22, 2018

Since 2013, we have set our fees based on what we feel is fair to the client. FDA label compliance review was actually the very first service we offered, and remains among the most popular. Our fee for label review has been a flat $499 per label, with usually one to three days turnaround time for years. For the vast majority of labels, this works out well for the client, but also for us. We do not experience many hagglers or complainers. In fact, we more often have people asking us why we charge so little!

This is a good question, especially as we set our fees without surveying the competitors or trying to undercut anyone. Honestly, we really did not have a clue what exactly others are charging for this service until recently. A client that chose us to review their labels shared what they found when they priced the project out with every label review company they could find with Google searching. The results were in most cases shocking, and borderline sickening in others. The insight was valuable enough that we want to share with you what was shared with us.

Comparative Pricing for Single Dietary Supplement FDA Label Compliance Review:
Competitor #1: $3,500
Competitor #2: $2,500
Competitor #3: $1,495
Competitor #4: $1,200
Competitor #5: $995
Competitor #6: $950
Competitor #7: $750
Competitor #8: $750
Competitor #9: $725
Competitor #10: $500
Dietary Supplement Experts: $499

It makes sense now why clients ask us why our prices are so low – given that we charge $499, and 10 of our competitors range from $500 to $3,500. Here are a few thoughts on what creates these discrepancies.

  1. We do not outsource or subcontract to other firms. This is a dirty little secret of the dietary supplement consulting business. We are a close knit team with very niche skills, and are very careful about who we let on the team. However, you might be surprised to know that we are subcontracted by several of our competitors for all of our services. The rates we charge them are the rates we charge you directly. Our consulting firm clients generally charge you 2-3 times that price. Ever pay $1,200 for a label review? We probably did it for your firm for $499. We won’t name names, but does you current firm have a tradeshow booth or advertise heavily? Let us quote your projects at a fair value first.
  2. Tradeshow booths, Google, and trade publication advertising is not cheap. Neither are office spaces or massive headcounts. To a large extent, we have grown by word of mouth. We invest very little in advertising, and our team works remotely. We simply do not create the overhead costs that our competitors have. We focus on making you the client satisfied, which in turn has allowed us to consistently grow year after year.
  3. We have all worked for dietary supplement companies. We know what it is like to be a start-up with a small budget. We know what it is like to receive a regular hourly wage. We trade time for money as consultants, and it is difficult to justify billing clients some of the rates we see out there. We try to balance the cost to benefit ratio to create win-win situations and clients for life.
  4. We are not lawyers! When you have legal issues, we will be the first to direct you to a legal professional that we know and trust. However, the vast majority of dietary supplement formulations, compliance, and other project types do not require a lawyer to do the work for you. And guess what, sometimes even they subcontract to consultants anyway.

Whether it be label review or any other compliance service you are looking for, we hope this article will give you some context of pricing discrepancies. Of course price should not be your prime consideration. Make sure your chosen experts know what they are doing. We always appreciate the opportunity to earn your business.

Forced Non-Compliance?

By Curtis Walcker, M.S.
February 18, 2018

At a time when the dietary supplement industry faces ever-growing scrutiny, there is a lot of discussion about what can be done from within the industry to self-regulate. Despite having arguably adequate regulations in place, many would agree that the low level of enforcement of those regulations might be the biggest issue. And while the appropriate enforcers (e.g., FDA and FTC) may not have the resources necessary to police the entire industry, others have stepped up (e.g., State AGs, plaintiffs’ attorneys, task-force groups, etc.) with varying agendas. As those outcomes rarely serve the industry or its consumers well, we have seen more movement towards industry self-regulation. These self-regulation efforts include things like mechanisms for challenging advertising claims among competitors, unofficial cGMP standards for raw materials suppliers, and repositories for label and manufacturing data. The end results of which will hopefully promote more compliance with dietary supplement manufacturing and advertising, but also improve consumer confidence in the products and industry.

Industry self-regulation is fantastic, but not the topic of this article. The topic is actually the opposite – industry self-deregulation. That’s right. While regulatory affairs and quality professionals work tirelessly to make and keep companies compliant with the regulations, there are active forces from within our own industry that not only promote non-compliance, but also force it upon companies with contracts and refusals to do business with them.

Now these might sound like strong accusations, but they are in fact very real, and far too common. However, it must be said that those involved in creating the instances of forced non-compliance are generally not aware of what they are requiring, or sometimes just of the opinion that the compliance issues are insignificant in terms of risk.

These forced non-compliance issues can be seen from time to time in all of the critical regulated areas such as labels, claims, and manufacturing. At DSE, a lot of our consulting work focuses on label compliance reviews, so I’ll present some of the areas where we see this frequently with clients in the label area alone.

  1. The first offender can be your contract manufacturer. The majority of dietary supplements on the market are made by contract manufacturers. As a brand owner, it is your duty to ensure that your products are made in compliance with the cGMPs. To earn your trust and business, contract manufacturers invest heavily in the equipment, quality control, and expert personnel needed to make dietary supplements. However, it is quite rare that they further invest in an expert to make sure that your labels are compliant – as they are squarely your responsibility. They will generally provide enough information on your product that a compliant label can be made.

    A good manufacturer will disclaim this, and recommend you seek expert help with your label. A dangerous manufacturer will lead you to believe that sticking their content on your label without further review will guarantee compliance. The most dangerous though, are the ones (especially the private labelers) that will not release your product to you until they have provided a review of your label, and will reject your label for any slight deviation from what they want from you. In every case of this that we see, the manufacturer has demanded that the client 1) not be allowed to use a compliant label, 2) maintain their non-compliant Supplement Facts panels and/or ingredient statements, and 3) forget about the product if the labels aren’t approved. It creates quite a conundrum for clients.

  2. The second offender can be you raw material supplier. This usually only occurs when your product contains a trademarked material. While you pay the additional price of using these ingredients for better marketability, claims support by clinical studies, and overall better compliance – you might end up being forced right back out of label compliance.

    The way this happens is that in order to use the trademarked ingredient, the supplier will require you to sign a trademark usage and licensing agreement. In this contract, at times you will be required to label the ingredient in a very specific way in your Supplement Facts panel that might not be in a compliant manner. This might violate the regulations in terms of the naming of the ingredient (not a common or usual name, or not a standardized common name for a botanical ingredient), usage of intervening material (added marketing language or trade name), or something different. Before printing your labels, the suppliers want to review and approve your labels. If you have deviated from the agreement, they may reject your use of the material based on the labeling.

  3. The third offender can be your retail distributor. When your products find their way to retail distribution, part of the process can include label review. We have helped out with label compliance readiness for many companies in retail, and have seen the varying degree of expertise displayed by the retail reviewers. The ones that are extremely technical and conservative are our favorite, but those that come back with comments for change that are outside of compliance are difficult to deal with. Sometimes this seems to be confusion with conventional food labeling rules, other times it can be less clear where it involves maybe just misinterpretations of the regulations, or drawing from the non-compliant practices of other brands currently distributed by the retailer. In any case, retail distribution is a big thing, so trusting them and complying is an easy approach, but creates risk nonetheless.

So what is a company to do when unnecessary label non-compliance is forced onto you? To start, you must know the regulations to have a chance of fending it off, or at least someone in your corner that does. Then, when it happens, hopefully you can present a reasonable case to the offender, and get them to recognize their error and make a compromise. In the best of cases, they may appreciate your perspective, and possibly appreciate the challenge and outcome. In the worst of cases, they might be inflexible, and you might need to navigate away.

If you need a second look – or even first look – over the compliance aspects of your dietary supplement products, please contact us and see how we can help.