AHPA urges FTC to withdraw massed-mail notice of penalty offenses in Citizen Petition
The notice, issued in April to nearly 700 companies, has no legal effect
September 22, 2023
In a recently submitted Citizen Petition, the American Herbal Products Association (AHPA) -- together with the Consumer Healthcare Products Association (CHPA), Food Industry Association (FMI), Natural Products Association (NPA), Personal Care Products Council (PCPC), and United Natural Products Alliance (UNPA) -- requested that the Federal Trade Commission (FTC) withdraw the mass-mailed notices of penalty offenses issued in April to nearly 700 companies, most of which are in the dietary supplement and natural products industries.
Ostensibly, FTC issued the notices to remind marketers to “avoid deceiving consumers with advertisements that make product claims that cannot be backed up or substantiated.” However, in the Citizen Petition jointly submitted on Sept. 15, AHPA and the co-petitioning trade groups contended that the notice should be withdrawn for three reasons:
First, the notices attempt to impose a substantiation standard that is prohibited by the Dietary Supplement Health and Education Act (DSHEA) and is otherwise inconsistent with prior guidance from FTC;
Second, the notice fails to establish any recipient company's “actual knowledge” of unlawful conduct, which is necessary for FTC to seek civil penalties; and
Lastly, enforcing the vague notices would violate due process because they fail to provide any company with fair notice of what is prohibited.
“The FTC's mass-mailed notices of penalty offenses had no legal effect, but they spread uncertainty among and about the responsible dietary supplement companies that received them,” explained AHPA President Michael McGuffin. “We urge the FTC to immediately withdraw the notices because they attempt to impose a claim substantiation standard that conflicts with established law and that may not (in the words of none other than FDA) prove ‘possible, practical, or ethical' for our class of goods.”
“Further, the notices purport to facilitate the future imposition of civil penalties against the recipients in a manner clearly and repeatedly foreclosed by controlling court decisions,” continued McGuffin. “Taking the legally required action we have requested would remove the shadow that the notices have cast over the compliant dietary supplement industry that AHPA represents.”