FDA TO SUPPLEMENTS: DROP DEAD
By Attorney Jonathan Emord
August 22, 2011
The FDA is aggressively reducing the size and scope of the dietary supplement industry, culling from its ranks many small, innovative producers to pave the way for an ultimate assumption of market control over basic vitamins and minerals by pharmaceutical companies. For decades the FDA employed direct, blunt tactics to force supplements off the market or make them available only by prescription, ranging from efforts to declare nutrients above certain dose levels unlawful to sell except as drugs to efforts to define dietary supplements as unapproved food additives (on the ridiculous theory that a gel cap is a food and the nutrients within in it are food additives). Those efforts failed miserably because they appeared to the public transparent attempts to take their supplements away. The current FDA approach to remove supplements from the market does not offend public sentiment because it proceeds under the guise of safety without ever having to prove a product actually unsafe. That approach is causing the supplement company carcasses to form heaps along the regulatory road.
Unwisely, major dietary supplement companies, through their trade association the National Nutritional Foods Association (NNFA) (since renamed Natural Products Association (NPA)), drafted a lengthy document calling for FDA to adopt rules mandating process controls over every aspect of dietary supplement manufacture, holding, and distribution, the so-called current Good Manufacturing Practice guidelines. Misunderstanding the relative strength of the dietary supplement lobby at the FDA and the amount of power conveyed to FDA through the proposal, many leading supplement makers thought the new regulations would force small firms out of the market, achieving an anti-competitive goal. They failed to appreciate that the primary regulate at the FDA, and the one that has the agency as its captive, is the drug industry. Consequently, FDA with pleasure adopted the cGMPs but proceeded to enforce them in ways that are enormously costly, adversely affecting all companies, big and small, in the industry, to the great benefit of those, like the pharmaceutical companies, that rely on economies of scope and scale in standardized mass manufacture of drug and supplement products that already satisfy these same kinds of regulations. When fully implemented, the GMPs are estimated by the FDA itself to result in a reduction of some 25% of the companies in the dietary supplement industry. An economic assessment my firm had commissioned of the impact yielded a higher estimate, some 30% of supplement companies.