What Can I Tell My Customers?

What Can You Say?

If this article is a reminder of what you should not discuss with customers, what can you tell them about the benefits of your products?

Obviously, nothing prohibits employees from talking with their customers. Even without discussion of diseases, there is a broad range of topics that can be discussed as part of the consumer’s right to receive information under the First Amendment to the Constitution. Certainly, the structure/function benefits of products and the information contained on the labels and labeling can be discussed with customers. Questions can be asked in order to determine which product may best suit a customer’s requirements. Individual products can be compared and information provided about the different types of supplements and ingredients. In addition, potential product interactions, warnings, allergen information and other product or ingredient specific information can be brought to the attention of customers.

General nutrition information and the benefits of good nutrition and how dietary supplements assist in achieving good nutrition can be discussed. It’s legal to discuss how various segments of the population (the young, the old) may not be getting all of the nutrients that their bodies need and how supplementation may be beneficial.

In terms of specific disease prevention, the information provided should be limited to FDA-recognized health claims, although the First Amendment protects a retailer’s right to provide a book section or research section where customers may learn about dietary supplements.

Under the Dietary Supplement Health and Education Act (DSHEA), retailers have the ability to provide so-called “third party literature” to their customers; presently, such literature may mention “diseases” if all of the other requirements are in compliance. In addition, DSHEA preserves the right of natural products stores to sell books, as long as they are maintained in a separate area apart from the dietary supplements.

Under DSHEA, “a publication, including an article, a chapter in a book or an official abstract of a peer-reviewed scientific publication that appears in an article and was prepared by the author or the editors of the publication, which is reprinted in its entirety, shall not be defined as labeling when used in connection with the sale of a dietary supplement to consumers when it:

is not false or misleading;

does not promote a particular manufacturer or brand of a dietary supplement;

is displayed or presented, or is displayed or presented with other such items on the same subject matter, so as to present a balanced view of the available scientific information on a dietary supplement;

if displayed in an establishment, is physically separate from the dietary supplements; and

does not have appended to it any information by sticker or any other method.”

Thus, a retailer may have a “literature” section in their store in an area physically separate from the products where truthful and non-misleading literature, reprinted in its entirety and presented in a balanced fashion may be provided to customers, so long as the literature does not promote a particular manufacturer or brand of dietary supplement, and does not have any additional information appended to it.

In practice, then, if a customer were to ask, “Does Echinacea really work?,” the person could be given literature that meets the “third-party literature” standard. On the other hand, if the only available information in the store are books, it could be a bit one sided on the issue of the herb’s efficacy. In this situation, the customer should be directed to the store’s book section where they can undertake their own research.

Steven Shapiro, Esq., is a partner in the New York-based law firm of Ullman, Shapiro & Ullman LLP, which specializes in legal issues affecting the dietary supplements and natural products industry.

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