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This article was originally published in The Tan Sheet

Executive Summary

FOOD INDUSTRY OPPOSITION TO RICHARDSON, HATCH DIETARY SUPPLEMENT BILLS stems from the perceived competitive advantage that would be conferred upon supplement firms from being able to make health claims, according to attorney Stephen McNamara (Washington D.C. law firm of Hyman, Phelps & McNamara). Speaking at a Sept. 28 meeting of the Foundation for Innovation in Medicine in New York City, McNamara suggested that the food industry is opposed to supplement legislation introduced by Rep. Bill Richardson (D-N.M.) and Sen. Orrin Hatch (R-Utah) because the bills would allow claims for supplements that could not be made for foods under the Nutrition Labeling & Education Act. "Why should you be entitled to make representational claims that will give you a leg up . . . as far as the consumer is concerned?" he asked. In response to a statement by Nutritional Health Alliance Legislative Advisor Tony Martinez that it is a "tactical error on the part of the food companies to not be supporting this legislation," Kraft General Foods VP-Scientific Relations Enrique Guardia, PhD, declared: "It is beyond me that anyone would expect the food industry to say we like" the Hatch and Richardson bills. "Why would I accept the science that says that if vitamin C is in capsules, it can be [judged by] a different scientific basis than if it is in orange juice," Guardia argued, "and why would I like the commercial disadvantage that that costs my industry?" Similarly, in August comments on FDA's dietary supplement regulations implementing the health claim provisions of the NLEA, the National Food Processors Association underscored that there is "no reason, based in science, why the standard for health claims on dietary supplements should be either more strict or more lenient than the standard for conventional foods." Under legislation introduced by Sen. Orrin Hatch (R-Utah) and Rep. Bill Richardson (D-N.M.) ("The Tan Sheet" April 12, p. 6), dietary supplements would be exempt from requirements in the NLEA that all health claims used must be authorized by FDA based on significant scientific agreement. McNamara suggested that food companies could view the dietary supplement bills as a "vehicle" for relief from NLEA requirements. If the bills pass, he hypothesized, "that's going to be an awfully good precedent for [food firms] to come through and get a similar change." Guardia pointed out that the food industry has resigned itself to the fact that NLEA is "the law of the land until we change it, we clarify it and we evolve it -- and we will." Speaking at a Sept. 29 Food & Drug Law Institute seminar in Washington, D.C. on the new food label, attorney Richard Frank (Washington, D.C. law firm of Olsson, Frank & Weeda) predicted that "dietary supplement regulation and legislation will be the train which will force, sooner or later, an evaluation of whether or not the health claims rule is the right rule for foods or whether or not it needs to be changed." If it is determined that NLEA's health claim provisions are "correct," Frank speculated, then "I think dietary supplements will be forced to live with the same standard or possibly a higher one." If the food health claim standard is deemed too rigorous, then "that's going to be an interesting debate" that if won't be resolved this year" due to the "political momentum" being driven by the dietary supplement legislation and accompanying lobbying efforts, he added. Frank concluded that regulating dietary supplements "in a way much less rigorous than foods . . . doesn't make sense."

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