Amway Attorney Sees Role For Legal In Supplement Claims Development
This article was originally published in The Tan Sheet
Executive Summary
Corporate attorneys for supplement companies should take a collaborative approach to keeping marketers out of legal and regulatory trouble, says Amway in-house counsel Patricia Linscott. Attorneys at the Nutrilite supplement maker participate in “idea-to-market” product development teams and help brainstorm claims.
[Amway Corp.] corporate counsel Patricia Linscott says other firms’ in-house attorneys sometimes call marketing colleagues “the bane of their existence,” but she tries to collaborate with Amway marketers because they share her goal of selling more products without attracting regulatory scrutiny.
Since dietary supplement marketers often want to push the envelope for advertising claims, the legal team should educate and partner with marketers to find common ground acceptable to both departments, Linscott said during an Oct. 25 webinar on supplement marketing presented by the American Herbal Products Association.
“A typical lawyer … pretty much cites the black-and-white letter of the law, which in the corporate environment doesn’t always work,” said Linscott, an 18-year veteran of Amway’s legal department.
“In-house counsel must be adept at understanding the gray areas and be willing to discuss and understand marketing’s positions, and provide them with options that are legally acceptable.”
In addition to offering Nutrilite supplements – the world’s top-selling supplement brand with $4.7 billion in 2011 sales – Amway, part of Ada, Mich.-based Alticor Inc., sells cosmetics and home care products through independent distributors.
Patricia Linscott
Photo courtesy of Amway
The main collaborative strategy Linscott employs is to be approachable to Amway’s marketing staff, maintaining an open-door policy and being available for immediate review of proposed advertisements, which sometimes need 24-hour turnaround for accelerated product launches.
Linscott and other staff attorneys also participate on “idea-to-market” teams with members of the marketing, research and development, procurement, packaging and technical regulatory departments, to help shepherd new products through every phase of development.
Staff also convene subsequent brainstorming sessions to formulate possible marketing messages and campaigns, with regulatory fine-tuning as the last step in the process.
In the course of brainstorming, “I don’t stop any idea or line of thought because it might not be legally acceptable – because you never know what an idea might morph into,” Linscott said.
“As a result, we’ve come up with product names and marketing claims that were really innovative but were properly worded to fit the classification of the product. And because it was a team effort, we ended up with buy-in from our marketing department.”
Education In Risky Claims
Still, in-house attorneys sometimes must put their foot down and stand in the way of a risky marketing strategy.
Linscott said Amway cosmetics marketers were tempted by competitors’ stem cell anti-aging claims, but corporate counsel strongly discouraged such marketing language for cosmetics and supplements.
Subsequently, FDA in September sent a warning letter to L’Oreal S.A. regarding stem cell anti-aging claims for its Lancome brand (Also see "FDA Warns Lancome For Gene/Stem-Cell Claims: A Signal To Marketplace?" - Pink Sheet, 24 Sep, 2012.).
That letter, along with a separate FDA warning to BioLogic Solutions Inc. regarding Stem Cell Therapy skin cream, “served the purpose of confirming our recommendation that legal did know what we were talking about,” Linscott said.
For that reason, Linscott recommends legal teams regularly show marketers real-life examples of competitors facing regulatory enforcement for pushing the envelope too far. “Keeping them in the loop does show them that the advertising environment can change overnight,” she said.
In addition to pointing out extreme cases, attorneys also should offer their marketing partners a basic education in FDA and Federal Trade Commission requirements for claims substantiation and appropriateness. With occasional multi-day seminars on regulations covering various classes of consumer goods, Amway educates hundreds of employees at a time.
Once marketers understand basic regulatory parameters, they can more actively determine the fate of a proposed claim or campaign.
“Bringing marketing into the risk-benefit analysis makes them better marketers and my job a lot easier,” Linscott said.
“I normally ask them: Will the claim they want sell more product? Is it worth the risk? Because at the end of the day, I want them to have the strongest claims possible so they can sell lots of products.”
Amway has kept its marketing claims out of FDA’s and FTC’s crosshairs, though early this year the Center for Science in the Public Interest took issue with claims that NutriliteFruits & Vegetables 2GO Twist Tubes offer the antioxidant equivalent of two servings of fruits and vegetables (Also see "In Brief" - Pink Sheet, 5 Mar, 2012.). Though CSPI at the time threatened to pursue litigation over what it called “illegal” and “deceptive” claims, a spokesman for the center declined to provide an update on possible next steps against Amway.