U.K. Supplement Retailer’s “Suitable” Customer Advice Likely Unsuitable In U.S.

Holland & Barrett ads clarify store clerks’ advice “would be in relation to nutrition and supplements, rather than general or individual health advice,” the UK advertising regulator says. While some US retailers train staff about supplement claims, they do not have as much room for advising customers as the UK agency allows in its ruling on a challenge.

U.K. retailer Holland & Barrett Retail Ltd. provides store clerks with “suitable knowledge” to give advice on nutrition and supplements, the Advertising Standards Authority concludes in response to a complaint that the employees are not qualified to advise customers.

While some U.S. supplement businesses train staff about supplement claim regulation, retailers do not have as much room for advising customers as the U.K. advertising watchdog organization allows the Holland & Barrett chain, an[NBTY Inc.]business.

According to ASA’s Aug. 20 report, Holland & Barrett’s training is nationally accredited in the U.K. and concludes with a qualification recognized by the country’s Office of Qualifications and Examinations Regulation.

A consumer contacted ASA to question the chain’s claim on its “Qualified to advise” webpage that stated:

"Associates at H&B have a nationally recognized qualification in nutrition and supplements. Whether it's a question about Vitamin C or Whey Protein, Echinacea or Fish Oil, to find out which one of our hundreds of high quality supplements is right for you, pop into your nearest Holland & Barrett store to speak to an associate who is qualified to advise you on your nutritional supplement requirements. If you are taking supplements, take our advice. Holland & Barrett associates are now officially 'Qualified to Advise' ... Health, sports nutrition and supplement advice from some of our experts ...."

ASA stated that Holland & Barrett explained the training is not confined to the products the chain sells. The training, which is described on the page on the retailer’s website, “covered body systems, health, ailments, nutrition, food supplementation and herbal remedies.”

The course includes workbooks and learning tools and the chain’s employees are expected to use other external materials, attend courses and pass online examinations for each level of qualification, according to the report.

746 Stores In Europe, Asia, Middle East

According to NBTY, which is owned by the Carlyle Group investment firm, it operates 746 Holland & Barrett stores, primarily in the U.K. The chain also includes 28 franchised stores in China, 27 in Singapore, nine in each of the United Arab Emirates and Cyprus, four in Malta and one in each of Gibraltar and Iceland.

The chain is part of NBTY’s European retail division along with 138 De Tuinen stores in the Netherlands, 54 GNC stores in the U.K., 47 Nature's Way stores in Ireland and 13 Essenza stores in Belgium, which were acquired in June 2013.

Sales by the division, which also includes online operations, increased 12.3% to $215.3 million in NBTY’s fiscal 2014 third-quarter, ending June 30, according to the firm’s Aug. 14 earning statement.

NBTY also owns and operates 419 Vitamin World stores in the U.S. and Canada that sell proprietary brand and third-party products.

Additionally, ASA said the ads clarified that store clerks’ advice “would be in relation to nutrition and supplements, rather than general or individual health advice.”

The report states that “in the context of the other claims on the page,” consumers would understand that by making the claim "advice from some of our experts," the retailer refers “to the nutrition and supplement advice given, rather than general health advice.”

The chain provided ASA with copies of the “extensive” course work covering topics including safety, vitamins and minerals, healthy eating, herbal remedies, nutritional supplements and common ailments.

The course also highlighted conditions for which staff members are not allowed to recommend products and the need to obtain significant medical details from customers before suggesting products. Holland & Barrett also told ASA that customers’ safety is “priority at all times and staff [are] aware to refer a customer to other health professionals when necessary.”

Separating Claims From Medical Advice

While ASA distinguishes advice on using supplements from medical advice, U.S. regulators likely will not allow supplement retailers to separate one type of advice so finely from the other.

Advising a customer about using a certain vitamin or supplement when the customer asks about treating a certain condition likely would not be distinguished from diagnosing the customer’s condition and making a disease claim for a supplement.

“Once you venture too far into a person’s particular health malady, you’ve ventured into disease claim territory,” said Natural Products Association Executive Director & CEO Daniel Fabricant.

The Federal Trade Commission advises supplement manufacturers to closely monitor how retailers advertise and promote their products. FTC and other regulators have found that employees at some supplement retailers could be unclear on claims law or unaware they are making illegal claims (Also see "Retailer Training Crucial To Keeping Supplement Claims Compliant" - Pink Sheet, 23 Aug, 2010.).

Inappropriate supplement claims by retailers also are a concern for FDA. It has taken the position in the past that consumers could be dissuaded from seeking necessary medical care if they are led to believe that a vitamin or a supplement will cure a disease condition.

“If a retailer promotes a product in a way that suggests it can cure, mitigate, treat or prevent a disease, it’s evidence that the intent of the product is to be a drug and not a supplement,” said Council for Responsible Nutrition President & CEO Steve Mister.

In addition to federal regulators, some states enforce laws that require licensing for dieticians and touch on what supplement store salespeople can say about a product, Mister added. CRN tracks state laws to ensure those requirements include an exemption that allows retailers to appropriately promote supplements.

However, when retailers or other persons promoting a nutritional supplement “start talking about how specific conditions will be affected by a product, they have stepped out of the retailer exemption,” Mister said.

Vitamin Shoppe Inc. is among the supplement retailers operating in the U.S. that train employees on product claims. The North Bergen, N.J.-based chain requires store employees “pass a multi-tiered range of courses at Vitamin Shoppe University, our proprietary online learning course,” said a spokeswoman.

Additionally, Vitamin Shoppe offers daily in-store training to ensure staff members are informed of the latest products and developments in the health and wellness industry and hosts an annual product education conference with store managers and firms that provide products, the spokeswoman added in an email.

A Government Accountability Office investigation in 2010 found some retailers using illegal claims to market supplements. A report GAO provided the Senate Special Committee on Aging underscored for manufacturers the importance of outreach to retailers to manage claims being made about products (Also see "Senate Supplement Hearing Spotlights Self-Regulation, FDA Enforcement" - Pink Sheet, 31 May, 2010.)).

The GAO report said the "most egregious practices" included claims that a supplement prevented or cured cancer and cardiovascular disease, and mitigated age-related medical conditions such as Alzheimer's disease and diverticular disorder.

Mister pointed out CRN provides a brochure, which it encourages members to include it in product shipments, about what retailers can and cannot say about vitamins and supplements.

Fabricant noted that NPA offers training for retailers on claims allowed for supplement products. He said retail employees should keep in mind “they’re not there to dispense medical advice.”

Although reports of noncompliant retailers have not dogged the supplement industry since the GAO investigation, stores making claims – either directly to customers or through labels and advertising – that are unsupported by research and not promoted by manufacturers likely are common, experts say.

That is because retail employees often expect they simply are educating consumers about supplements when regulatory agencies would find they are making unsubstantiated claims. And while retail employees might argue they are exercising their right to free speech, First Amendment protection does not apply to false or misleading claims.

Within FDA’s oversight, a greater focus is on removing so-called supplements adulterated with Rx pharmaceutical ingredients from the market and identifying spiked products before they reach the market.

By comparison, enforcement against violative claims is a relatively simpler process for FDA. Ferreting out bogus claims does not require testing a product for noncompliant ingredients, but simply learning of an inappropriate claim and advising manufacturers, retailers or other parties to cease using it.