Health Care Product Reform

03/25/10

The latest skirmish in this ongoing battle was resolved this week when the consumer chain Walgreens, who was represented by McDermott Will & Emery, agreed to pay $6 million to the FTC and to remove labeling from its ''Wal-Born'' line of products that claim the supplements boost the immune system, preventing or curing the cold or the flu. In a public statement, Walgreens said ''We maintain there is evidence [Wal-Born] can support the immune system, and will continue to carry the product, but we have changed the packaging'', according to this article at the Blog of the Legal Times.


Last year Walgreens settled a separate class action lawsuit regarding Wal-born and gave customers their choice of a $15 refund or a free flu shot. The time to redeem those claims expired in September. Part of the settlement money paid to the FTC in the latest settlement will be used to pay the claims in the class action suit.

This settlement follows on the heels of last year's settlements with rival chains CVS and Rite-Aid for what the FTC claims is deceptive labeling of their products. But the FTC is not just targeting retailers. Litigation is ongoing against Improvita Health Products, maker of Wal-Born and other supplements, and in 2008 the FTC settled claims against Airborne Health, maker of the popular Airborne line of supplements.

Wal-Born, Airborne, and other similar products are marketed without being tested by the FDA due to a loophole that allows dietary supplements to be marketed without FDA approval. But like any product, manufacturers are still obligated to support any claims made in advertising or labeling. One study conducted on Airborne did show that it was effective at boosting the immune system, but that study was commissioned by Knight-McDowell Labs - the same company that manufactures the product, according to ConsumerAffairs.com.

State governments are also getting involved. Colorado recently settled a case against Nutra Pills, Inc. In this instance, the problem wasn't deceptive labeling but rather deceptive marketing. The company ran afoul of the state's consumer protection laws that ban so called ''free-to-pay conversion''. Customers that signed up for free trials used their credit cards to pay for shipping and handling, unaware that they were also enrolling in an ongoing purchase plan if they failed to affirmatively cancel. Such conversions violate Colorado law.