Disclosing material connection is essential for compliance < Back Celebrity Endorsement Lessons Disclosing material connection is essential for compliance Lessons in endorsement guidelines. Celebrity Kevin Hart came under the scrutiny of the National Advertising Division’s (NAD) monitoring of endorsement disclosure compliance. These are interesting cases with some good learning opportunities. Here’s what went wrong. Kevin Hart is an equity owner of a clothing brand and commonly posts about it. Here, the company incorrectly believed that since Kevin Hart is a partial owner, then perhaps no additional disclosures were needed. While this may be true if the brand was called “Kevin Hart Clothing” or something like that, NAD’s comments show that it is not common knowledge he is an owner. 🔹From NAD case. “Fabletics asserted that a material connection disclosure might not be necessary given Hart’s prominent role and public association with the brand. However, as a significant segment of the audience might not be aware of Hart’s affiliation with Fabletics due to varying levels of engagement with athletic brands, comedians, or celebrity endorsements.” Disclosures need to be clear and conspicuous. For example, the updated posts include the hashtag “FableticsPartner” above the “more” button. As a general rule, disclosures made below the “more” button or buried in hashtags are not sufficient. They may appear different on some phones or devices, so ensuring compliance across different viewing platforms may be somewhat onerous to review, but it is an essential part of compliance. The previous disclosures that include tagging such @fableticsmen and/or “@fabletics” after the “more” button were not enough to disclose material connection clearly. Another NAD and Kevin Hart case, this time with JPMorgan Chase Bank, also includes disclosures. The hashtag “chasepartner” was positioned below the “more” section which as discussed above is unclear disclosure. What is fascinating is that Kevin Hart not only corrected the placement of the hashtag (this is good) but also changed hashtag “chasepartner” to “chase_partner,” which I am unsure was needed. What do you think? The moral of the story is when in doubt, disclose. I made this disclosure video from my daughter’s snowboard rail jam over the weekend as a fun way to educate about disclosures. This includes tips on when verbal disclosures are needed. Fabletics NAD case Chase NAD case DATE ORIGINALLY POSTED: 2/26/25 Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading. Previous Next Get Warning Letter Wednesday in your Inbox Sign-Up Now!

The FDA/FTC look at old posts the same as current ones < Back Clean up old social media posts The FDA/FTC look at old posts the same as current ones #WarningLetterWednesday highlights very old social media posts called out in this warning letter. It is common for the FDA to look back a couple of years on social media posts, but this warning letter mentions a 2014 re-tweet and several three-year-old Facebook posts. This is an excellent reminder to clean up old social media posts, as the FDA/FTC looks at old posts similarly to current ones. I even made a video about this. Re-tweeting and re-posting can be seen as marketing claims, especially if a company adds commentary to the original post. This is the first time I have seen a re-tweet without company commentary called out in a warning letter. This is surprising and shows the viewpoint of the FDA's West Division 5 office, which has rarely issued marketing-only warning letters. It is interesting to see what online marketing claims each FDA division focuses on, and I will dig deeper into this fascinating aspect of enforcement at a later date. There are several high-risk disease words mentioned in this warning letter, such as Parkinson's, antidepressant, anti-tumor, and hashtag diabetes, which likely was why this company received a letter. Here's a video I made about removing and replacing high-risk "buzzwords" being the most crucial first step to becoming compliant. Claims made on Amazon are also referenced in the warning letter. It is no longer considered the "unholy grail" of disease claims, and I expect to see more Amazon warning letters in the future. Read the warning letter here . I've been writing about these enforcement trends for a while now. You may enjoy reading my regulatory blogs here . It can be challenging to find content on LinkedIn, so I started this Warning Letter Wednesday Group . Please check it out. DATE ORIGINALLY POSTED: 1/19/22 Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading. Previous Next Get Warning Letter Wednesday in your Inbox Sign-Up Now!

Ingredient studies may support product claims < Back NAD Case: Supporting Substantiation Ingredient studies may support product claims Where is the line between needing an ingredient study or a full product study for substantiation? This National Advertising Division (NAD) case explores the nuances of reasonable consumer interpretation of labeling claims. It’s really interesting! Here are my extrapolations. Study population matters: NAD examined the ashwagandha Randomized Controlled Trials (RCTs) and determined that one of the trials was insufficient for substantiation, as the study group consisted of perimenopausal women, and the product is not specifically marketed toward women in this group. From NAD case. “NAD determined that one study did not adequately support the claimed sexual health benefits due to its focus on perimenopausal women and thus could not qualify as competent and reliable support for the challenged claims.” Attributing benefits to ingredients is a “safer” strategy. It’s “common-ish knowledge” in certain regulatory circles that attributing benefits to ingredients rather than to the entire product may lessen the need for a product RCT. This can also help reduce litigation risk. What is odd is that Example #37 in FTC’s Health Products Compliance Guide seems to suggest that ingredient studies may not be enough. This got me thinking about context and the reasonable consumer takeaway. The theme is CONTEXT MATTERS, so reviewing the entire advertisement rather than just a specific claim is essential. From NAD case. “Of the eight express claims, five specifically named ashwagandha as providing the expected benefit. The three remaining challenged claims did not specifically reference ashwagandha, but appear in contexts that make clear that ashwagandha is the source of the claimed benefits. NAD determined that in this context, reasonable consumers would interpret the claims as attributing the product benefits to ashwagandha.” This a big victory for KSM-66 whose ashwagandha extract studies were likely used for substantiation. Read the NAD case here . DATE ORIGINALLY POSTED: 7/9/25 Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading. Previous Next Get Warning Letter Wednesday in your Inbox Sign-Up Now!

Safety related product claims attract scrutiny < Back “Non-Toxic” Claims Require Extensive Substantiation Safety related product claims attract scrutiny Making a “Certified Non-Toxic” claim on a mouthwash triggered a competitor challenge. According to the National Advertising Division (NAD) comments, the substantiation provided by the company was not sufficient to support the claim. 👉From NAD. “In support of the “Certified Non-Toxic” claim, Oral Essentials submitted two cytotoxicity studies (one for its sensitivity mouthwash and one for its whitening mouthwash) and a certification statement from MADE SAFE, a third-party certification program that verifies ingredient safety and non-toxicity. Oral Essentials mouthwashes were certified by MADE SAFE at the time of manufacture.” 👉From NAD. “Strong evidence is needed for non-toxic claims due to potential health and environmental risks as well as the potential for consumers to misuse the product or take away a broader message about the product’s safety that is not supported by the claim.” 👉Apparently, the cytotoxicity studies did not exactly match the and did not address the “real-world” effects. From NAD. “NAD found Oral Essentials’ cytotoxicity studies did not support the challenged claims such studies do not reflect the real-world effects on humans and only address one form of toxicity. Additionally, the study formulations contained one less ingredient and differed from the current product ingredients.” It seems the position is that making a “Certified Non-Toxic” claim on a mouthwash label may give some consumers the idea that they can drink the whole bottle or put it in their eyes with no safety issues. I expect people to have more common sense than this, but I guess it is possible for a consumer to think that “Non-Toxic” means they can go nuts with it. I assume the same rationale would apply to toothpaste or any other product that is sparingly used internally. 🔹Don’t rely on certifications: The company also relied on a “MADE SAFE” certification, but this did not substantiate the claim because it was unclear to NAD which real-world factors were evaluated in the certification process, and the company's certification had expired in October 2024. At Supplement Advisory Group , my regulatory consulting company, I often share the “less-is-more” principle with clients. This means that every aspect of packaging will be scrutinized, and if it’s not necessary for marketing, removing it is a good idea. This is not always a popular opinion, but it is important to measure risk and reward while keeping substantiation in mind. Read more about the case here . DATE ORIGINALLY POSTED: 1/15/25 Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading. Previous Next Get Warning Letter Wednesday in your Inbox Sign-Up Now!

Be nice to FDA investigators & follow inspection SOPs < Back Refusing FDA Inspection Access Be nice to FDA investigators & follow inspection SOPs GMP inspection preparedness is an essential part of business and compliance. This includes ensuring team members know how to conduct themselves during an inspection, what types of information FDA is allowed to request, and understanding what can go wrong if staff do not allow access to the specific areas of the facility. This warning letter is an extreme example of what not to do during an inspection. The company, a cosmetic and topical OTC manufacturer, was issued a letter for not allowing FDA to enter certain areas of their facility, but it doesn't stop there. Apparently, the quality manager shoved and shouted at FDA investigators? As my daughter would say, "WTF." From warning letter. "Quality Manager entered the laboratory and exhibited hostility by shoving and shouting at our investigators for conducting the inspection without their presence. Additionally, laboratory staff refused to open a drug stability chamber based on his hostile behavior. FDA inspectors are real people, and common courtesy goes a long way, such as offering them water (do not offer anything else as it is considered inappropriate), suggesting a good restaurant for lunch, and just being nice. It goes without saying that shouting and shoving anyone, especially FDA, is bad, and it would set up the rest of the inspection to go much worse than it could have. Employee training and mock FDA inspections are a critical part of a smooth "real" GMP inspection. It is standard practice for FDA to request a list of complaints to ensure they are being investigated properly. A customer complaint related to mold and its associated investigations was not disclosed in the list of complaints provided to the FDA. The section of the warning letter is sad and potentially speaks to an unfriendly and potentially fishy work environment. From warning letter. "While interviewing an employee regarding the undisclosed positive mold results for your …. your Quality Manager entered the room and began berating the employee, who then left the room, impeding FDA's review of your contamination investigation required under CGMP." There are several other GMP citations listed in the warning letter. Failure to Test Finished Products (21 CFR 211.165(a)). Failure to Test Components for Identity and Purity (21 CFR 211.84(d)). Testing glycerin for diethylene glycol (DEG) or ethylene glycol (EG) is mentioned here. FDA is very serious about this and has been mentioned in 40+ warning letters this year. Inadequate Facility and Storage Conditions (21 CFR 211.42(b)). Inadequate Quality Unit Oversight (21 CFR 211.22). Lack of Process Validation and Cleaning Validation (21 CFR 211.100(a) and 211.67(b)). This warning letter reads like a bad movie and makes the company look unprepared and non-compliant. Read the full letter here . DATE ORIGINALLY POSTED: 12/25/24 Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading. Previous Next Get Warning Letter Wednesday in your Inbox Sign-Up Now!

Tune in to hear Asa Waldstein of the Supplement Advisory Group, a boutique group focusing on marketing risk analysis and practical marketing solutions for the web and social media, discuss the latest need-to-know regulatory information impacting the cognition, adaptogen, and nootropic space. < Back Regulatory and Enforcement Update on Notable Action in the Cognition, Adaptogen & Nootropic Space Maggie Jaqua Press Mention Tune in to hear Asa Waldstein of the Supplement Advisory Group, a boutique group focusing on marketing risk analysis and practical marketing solutions for the web and social media, discuss the latest need-to-know regulatory information impacting the cognition, adaptogen, and nootropic space. Read More Previous Next

Old social posts are “active” marketing < Back Animal Product Claims Under Increased Scrutiny Old social posts are “active” marketing Claims made about animal products seem to have a lower tolerated "acceptance level" than human products. This is a friendly reminder to take another look at your animal product marketing because there may be forgotten risky marketing statements that can come back and "bite you" (I couldn't help the animal pun). Here is one example. These are obvious disease claims that should be avoided, but usually, this would not "tip the scale" into warning letter territory in a human product. 👉From warning letter. "… for dogs was designed and tested to boost your do's natural defenses against the unique host of fungal, parasitic, viral, and bacterial pathogens that flourish in the desert southwest." 🔹No company is too small to be off FDA's radar. This company has a very small web and social media presence, but they were still discovered and cited. Anyone marketing products online is "fair game" for enforcement. I write more about this here . 🔹Seven-year-old social media posts are cited in this letter. Plenty of two- or three-year posts have been called out in warning letters, but a seven-year-old post is going way back. I ask, does anyone really look at these really old posts? In the eyes of the FDA, these are considered active marketing and, therefore, should be compliant. Here is a post about this. 🔹Scanning old social posts is critical to any compliance "clean up" project I conduct. These forgotten old posts provide only risk and no marketing benefit. Here is an old and relatively lower-risk example. 👉From warning letter. "From your social media website. On January 29, 2016 you posted: "Important information: frequently when pets first start showing symptoms of Valley Fever they do not register a titer and thus the reason for misdiagnosis and the wrong course of treatment. If your pet is showing any signs then start Desert Defense while you await the diagnostics!" DATE ORIGINALLY POSTED: 2/22/23 Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading. Previous Next Get Warning Letter Wednesday in your Inbox Sign-Up Now!

Do not engage with customer “disease” testimonials < Back Saying “Thanks” on a Social Post Leads to Warning Letter Do not engage with customer “disease” testimonials If a company engages with a post on its social media wall, this is considered “endorsing the testimonial” and is marketing. It has been quite a while since we have seen a company cited for this, and honestly, I thought FDA had stopped enforcing this until the recent warning letter . Sign up for weekly Warning Letter Wednesday posts here . There are a few interesting aspects to this warning letter. Even saying “thanks for commenting” or “liking” a post is an “endorsement.” Based on this, I guess that smiley face emojis should also be avoided when posts have a disease or disease-treatment claims. The lesson here is that any engagement turns a customer comment into a marketing claim. Companies should review old social posts to ensure there is no engagement on customer comments with disease-type claims. FDA may look back several years on a company’s social media page. Claims made on Amazon and Walmart are cited in this letter. Companies commonly focus on website compliance but often overlook “old” marketing statements on these platforms. FDA is paying close attention to these platforms. This was part of the “Big 7” cardiovascular-related warning letters from a few weeks ago, which show that even talking about diagnostics related to heart disease, such as “lowers LDLs” can lead to a warning letter. I write about this in detail here . From warning letter. “You also endorsed the following responses to your post by liking them: “I just got my blood test back my total cholesterol went down 56 points and my bad cholesterol went down 82 points.” FDA cited claims made on a company testimonials page. The authorities have been “hands off” with non-curated, non-compensated, third-party product reviews. These cross the line into marketing if they are showcased on banners or, in this case, on a specific testimonials page. DATE ORIGINALLY POSTED: 12/14/22 Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading. Previous Next Get Warning Letter Wednesday in your Inbox Sign-Up Now!

Asa and other industry leaders interviewed < Back Hemp Leaders Look Ahead to 2022 Jean Lotus Interview Asa and other industry leaders interviewed Read More Previous Next

The software, named Apex Compliance, finds risky terms and phrases and suggests alternatives on websites, YouTube videos and in uploaded content < Back New software emerges to help nutrition and dietary supplement companies vet marketing claims Nutraceutical Interview The software, named Apex Compliance, finds risky terms and phrases and suggests alternatives on websites, YouTube videos and in uploaded content Read More Previous Next

Product formats & packaging should not appeal to children < Back FDA/FTC Cites Six Companies For Selling Delta 8 Products Product formats & packaging should not appeal to children FDA and FTC recently sent six joint warning letters to companies selling delta 8 products that were favorable to children. Thank you, FDA and FTC! These warning letters highlight some of the most over-the-top examples of products going too far, and I applaud the authorities for taking action. Here are some of the highlights: 🔷 More than disease claims: All of these warning letters do not include disease claims. This shows the agency is starting to think differently about enforcing cannabinoid products, and if they feel there is a safety issue, they will take action. Last year FDA shocked everyone by sending this letter to a company that was not making disease claims but was adding CBD to a caffeine-containing beverage. 🔷 Unfair or deceptive marketing is cited in these letters, which is where FTC comes in. Delta 8 poses dangers, especially to children, in favorable formats like gummies which are considered deceptive marketing. I find this approach fascinating and clever. 👉 From warning letter “Section 5 of the FTC Act prohibits unfair or deceptive acts or practices in or affecting commerce. This prohibition includes practices that present unwarranted health or safety risks….. preventing practices that present unwarranted health and safety risks, particularly to children, is one of the Commission’s highest priorities.” 🔷 Some of the most egregious products are Cheetos Crunchy Flamin’ Hot THC Infused Chips and Doritos Nacho Cheese THC Infused Chips. Wow, in addition to trademark issues, this company took it way too far. 🔷 Safety is cited as a primary reason for some of these letters, such as this example where similar products resulted in adverse event reports. 👉 From warning letter : “Ten of the reports specifically mention the edible product to be a copycat of popular foods. Your Sour Worms” 🔷 Some of these letters were issued to marketplace sites where numerous third-party products were sold. This shows that companies are responsible for the products they sell, as exemplified by last year’s Amazon and Walmart warning letters . 🔷 We are all aware of FDA’s unfavorable position on CBD, but they really do not care for delta 8 with good reason, as exemplified in last year’s consumer update . Delta 8 can be dangerous, and according to data from National poison control centers, 2,362 delta 8 exposure cases had been reported, including “One pediatric case was coded with a medical outcome of death.” This report warns consumers that delta 8 products are widely available in forms favorable to children, such as chocolates and candies. This should have given the delta 8 industry pause, but these products have unfortunately continued to proliferate. 🔷 Although most of the products cited in this letter have been removed, there are still some brazen products being sold, such as a carton of cookies that contains 30mg delta 9 THC per cookie. OMG! There is much more to read in the FDA news release . DATE ORIGINALLY POSTED: 7/12/23 Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading. Previous Next Get Warning Letter Wednesday in your Inbox Sign-Up Now!

Warning letters show claims made in socials, blogs, testimonials & hashtags < Back A Review of 56 Diabetes Related Warning Letters Warning letters show claims made in socials, blogs, testimonials & hashtags I reviewed all diabetes and blood sugar related FDA warning letters since the beginning of last year and found some interesting results. These findings provide a snapshot of where the FDA is finding and perhaps looking for risky words. We can learn a lot from this, and it's an excellent reminder for companies to re-review these areas to ensure no risky statements are lurking on their website or social platforms. There have been 56 blood sugar and diabetes-related FDA warning letters since the beginning of 2021. This is a lot, demonstrating the FDA's continuing attention to this high-risk diabetes and blood sugar category. 62% of these warning letters include claims made on social media. This should come as no surprise but is an important reminder to scan for high-risk words on socials, including old posts. Here is a post and video about this. 26% of these letters include claims made in blogs. This is a strong enforcement trend to watch as the FDA looks at old blogs in the same manner as current blogs. I have found this to be a common oversight, as companies have learned about compliance over the years and their new blogs are compliant, while their forgotten older blogs are riddled with disease claims. Scanning these forgotten blogs is a great way to reduce risk, and this is a service we at Supplement Advisory Group are often hired to conduct. Here is a post about best practices for reducing risk in blogs. 23% of these warning letters include claims made in testimonials. The FDA and FTC are generally "hands off" with non-curated, honest, 3rd party generated product reviews. These cross the line into marketing claims when a company engages with them or showcases them in any way, such as copying an Amazon review onto social media or showing them on a product page. Here is a post that shows how engaging with product reviews led to a company warning letter. 25% of these letters include hashtags. Hashtags are easily searchable and can turn compliant posts into disease claims with an uncompliant hashtag. Here is a video about this. 👉Here is a learning tool titled "Protect Your Company: Learn to read warning letters." I hope you enjoyed reading the synopsis, and I welcome your thoughts! Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading. Previous Next Get Warning Letter Wednesday in your Inbox Sign-Up Now!