FTC’s Revisions to Dietary Supplement Advertising Guidelines: More of the Same

In late December 2022, without prior notice or opportunity for public comment or input, the Federal Trade Commission (“FTC”) released a so-called “update” to its previous 1998 guidance document, “Dietary Supplements: An Advertising Guide for the Industry.”

The “Health Products Compliance Guidance” (hereinafter “Guidelines”) has ballooned to 34 pages. The document provides 52 examples, accompanied by several pages of endnotes with citations to case law and prior FTC settlements, to suggest activities and practices that may fall under FTC scrutiny.

Despite its increased heft, the Guidelines do not announce any new policy changes or initiatives by FTC. Rather, they are, for the most part, a rehash of increasingly hardline litigation positions taken by the agency in recent years regarding dietary supplement advertising.

What is new, however, is FTC’s application of the Guidelines beyond dietary supplements to an array of other products, including, but not limited to, over-the-counter drugs, homeopathic products, health equipment, diagnostic tests and health-related apps. Set forth below are some of the key features of the Guidelines, which impact their authority and usefulness to the dietary supplement industry. ...