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 customer’s 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, unknowingly 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.
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.
An employee of a health food store also may not “prescribe” dietary supplements. To do so would cause the products to be considered medication. This is a frequent request made by customers. The customer walks in and asks, “I have arthritis; is there a supplement that I can take for it?” The helpful store clerk may direct the customer to the glucosamine, chondroitin or MSM products. Unfortunately, by doing so, the store clerk has probably made the dietary supplements “medications” for the treatment of arthritis and here, too, engaged in the unlawful practice of medicine. Of course, a store clerk may state that the store sells dietary supplements that are beneficial for joint support.
What about the customer who asks about the “benefits” of a given product in terms that exceed what may be on the product label or beyond what would be a permissible structure/function or claim of nutritional support? In other words, what do you do with a customer who wants to know whether a particular product is good for arthritis, high blood pressure or any other disease condition? Unless the product label bears an appropriate FDA health claim (for example, folic acid prevents neural tube defects), such questions should not be answered. A store employee who engages in such practices may be making drug claims, thereby turning the dietary supplements into drugs and potentially turning his or her actions into the unlicensed practice of medicine or pharmacy.
This may seem incredibly obvious, but needs to be said anyway: One should also never assist anyone in engaging in an illegal practice. For example, have you ever been asked: “I am interviewing for a new job and am concerned about the drug test. Do you have a detox product that can help me out?” There are some states where a clerk can potentially be charged with a misdemeanor for answering this question, and a few states where it could potentially be a felony.
Some jurisdictions have local laws or restrictions that may affect your business and it is important that you be aware of them. For example, California requires a specific warning on products that contain certain specified ingredients known to be stimulant laxatives. In Florida, anyone who sells a “weight-loss pill”—a pill that is available without a prescription and with labeling or advertising that indicates its primary purpose is to cause weight loss, which would include many dietary supplements—to any person under the age of 18 would be subjected to a fine.
Finally, retailers should be aware of the need to have a separate section in their stores for books and literature. Books should not be displayed in conjunction with or near products. Such a display has the potential for making all of the contents of the book a claim for the product, even if nothing is stated by an employee.
Email this article
Add a comment
Printer version
Order reprints
RSS Feed
Bookmark article