Retailers want to provide their customers with the finest dietary supplement products available. They also want to truthfully and honestly describe the potential benefits of the products to their customers and answer their customers' questions. Under the law, however, there are limitations on the types of information that may be provided to customers.
Federal, state and even local regulators have been known to visit health food stores—sometimes “undercover”—to see what retailers are telling their customers. There have also been instances where investigative television shows have used hidden cameras and microphones in an attempt to get store employees, in their zeal to be helpful and to sell products, to make statements beyond what would be permitted under the law. In these instances, unknowing, but no doubt well-meaning, owners and employees in an attempt to answer questions have placed themselves in the unfortunate position of making statements that may have constituted either the unlawful practice of medicine or the unlawful practice of pharmacy by dispensing drugs without the proper license.
Obviously, it is understood that the current difficult economic times may drive your staff to take "desperate measures" to sell products. Unfortunately, difficult economic times do not justify lax compliance. Moreover, governments are facing the same difficult economic times. What we have been seeing is increased government enforcement at the federal level, and even more so at the state and local level. This enforcement has focused on civil penalties. Regulators realize there is revenue to be made from missteps in the dietary supplement industry.
For example, an owner or employee of a health food store may not diagnose a person’s condition. Doing so might open one up to a charge of practicing medicine without a license. However, how many times has an employee been given a list of symptoms by a customer—this hurts, that hurts, I can’t go to the bathroom? And, how many times has the employee responded, “It sounds like you have [insert name of disease or health condition].” This constitutes the practice of medicine, which is generally regulated by individual state governments. Even if you, as a retailer, believe you can identify a disease or health condition based on the described symptoms, you must refrain from doing so. Instead, suggest the person visit a licensed health care provider for diagnosis.