The Council for Responsible Nutrition filed an NAD challenge against the sellers of ionDEFENDER dietary supplement. See Advanced Nutritional Innovations, Inc., NAD Case No. 5959 (May 25, 2015). The advertising at issue included claims that the supplement will boost superoxide dismutase (SOD) in the body, reduce oxidative stress, and provide protection against radiation. The NAD recommended discontinuation of almost all of the claims.
In support of claims to boost SOD levels, the advertiser had offered two studies testing the effects of the primary ingredient in its product on blood levels of SOD. The NAD, however, concluded that the studies were inadequate given that they were described only in short abstracts and appeared to have methodological flaws, such as a lack of between-group statistical analysis.
With these findings, the case highlights an ongoing issue with NAD rules in that in any compliance proceeding, the NAD prohibits new evidence related to the claims that were reviewed. That means that even if this advertiser takes into consideration the NAD’s findings on its SOD studies and conducts a reanalysis of its data or creates more formal and complete study reports, those materials will not be admissible. With this admissibility rule, the NAD effectively bars future claims that may be entirely truthful and reflect a company’s diligence in responding to NAD criticisms.
Over a year ago, an ABA working group reviewed the NAD’s procedures and recommended changes to various rules, including the admissibility rule. Although other recommendations were implemented, no changes have been made to the admissibility rule. John, who led the ABA working group, discussed its efforts and findings in an interview with Metropolitan Corporate Counsel.