FTC Confirms Targeting of Probiotics and Immunity Claims; CSPI Eggs on States and the Private Bar

By Ricardo Carvajal –

During a webinar on immunity claims sponsored by the Food and Drug Law Institute, Richard Cleland, Assistant Director of FTC's Division of Advertising Practices, confirmed that enforcement actions are in the works against probiotic products that make inadequately substantiated claims.  FTC is particularly concerned about any "immunity claim [that] conveys a general or specific health benefit beyond just maintaining one's immune system."  In FTC's view, such claims must be supported by "competent and reliable scientific evidence of a clinically significant enhancement of that benefit."  This is the second time in as many months that an FTC attorney has singled out probiotics for scrutiny in public remarks (see our prior post here).

During the webinar, Bruce Silverglade, Director for Legal Affairs at the Center for Science in the Public Interest (“CSPI”), presented that organization's objections to the use of structure/function claims that it regards as misleading.  In CSPI's view, any immunity claim is an implied disease claim, and CSPI is "encouraging" states and the private bar to act accordingly.  Several class actions have already been pursued against major food manufacturers for immunity and other claims on probiotic products, and San Francisco recently challenged the use of an immunity claim on a popular cereal.