Recent Enforcement Trends: State Attorneys General Target the Dietary Supplements Industry

New York Attorney General Eric Schneiderman drastically raised the stakes for major dietary supplements retailers and manufacturers earlier this year when he issued cease-and-desist letters to four major retailers and ordered them to immediately stop selling their store brand herbal dietary supplements, identify the manufacturers of those products, and provide detailed explanations of their quality control measures. The cease-and-desist letters were quickly followed by subpoenas issued to the manufacturers of the products demanding that they describe how they test and verify the quality of their products and claims on their labels. These actions were based on DNA barcode testing and other measures purporting to challenge the substantive quality of the products themselves. Attorney General Schneiderman heralded the initial findings of his investigation as confirming longstanding concerns about mislabeling and false advertising in the dietary supplements industry.

Adding further emphasis to this enforcement focus, last week Attorney General Schneiderman announced that his office read reached a settlement agreement with GNC, one of the four targeted retailers. The agreement imposes onerous, far-reaching conditions, including that GNC implement enhanced nationwide testing for store brand supplements that exceeds current FDA standards. Attorney General Schneiderman added that the investigation raised questions regarding  the sufficiency of the FDA requirements in relation to state consumer  protection laws, indicating the possibility that even full compliance with applicable regulations may no longer ward off attorney general enforcement activity.