Antitrust Law Daily Wrap Up, ADVERTISING NEWS: GNC, Target, Walgreens, Walmart herbal supplements allegedly mislabeled, contaminated, (Feb 6, 2015)

By Greg Hammond, J.D.

New York Attorney General Eric T. Schneiderman has sent cease and desist letters to GNC, Target, Walgreens, and Walmart for purportedly selling store brand herbal supplements that either did not contain the labeled substance, or contained ingredients that were not listed on the labels. The letters demand that the four retailers immediately stop the sale of certain Gingko Biloba, St. John’s Wort, Ginseng, Garlic, Echinacea, and Saw Palmetto products in New York. In addition, the retailers have been requested to produce detailed information concerning the production, processing, and testing of their supplements, and a thorough explanation of their quality control measures.

The Attorney General’s office used DNA barcoding technology to analyze the contents of the herbal supplements, finding that only 21 percent of the products confirmed DNA barcodes from the plant species listed on the labels. Significantly, 35 percent of the tests identified DNA barcodes from plant species not identified on the labels, signifying the presence of contaminants and fillers. Asparagus, beans, citrus, houseplant, pine, primrose, rice, wheat, wild carrot, and other ingredients were identified as contaminants. Moreover, unlisted contaminants were found to be the only plant material present in many of the product samples.

“This investigation makes one thing abundantly clear: the old adage ‘buyer beware’ may be especially true for consumers of herbal supplements,” stated Attorney General Schneiderman. “The DNA test results seem to confirm long-standing questions about the herbal supplement industry. Mislabeling, contamination, and false advertising are illegal. They also pose unacceptable risks to New York families—especially those with allergies to hidden ingredients. At the end of the day, American corporations must step up to the plate and ensure that their customers are getting what they pay for, especially when it involves promises of good health.”

GNC’s “Herbal Plus” brand consistently tested for only one supplement identified on its labeled contents: garlic. DNA matched label identification for GNC’s herbal supplements 22 percent of the time. Similarly, Walgreens’ “Finest Nutrition” brand consistently tested for only one supplement identified on its labeled contents: Saw Palmetto. DNA matched label identification for Walgreens’ herbal supplements 18 percent of the time. The best of the four store brands was Target’s “Up & Up” brand, which consistently tested for three supplements identified on its labeled contents: Echinacea, Garlic, and Saw Palmetto. Nevertheless, DNA matched label identification for Target’s herbal supplements only 41 percent of the time. Walmart’s “Spring Valley” brand tested significantly worse than the other three retailers’ products, as none of its products tested consistently for any supplements identified on its labeled contents. DNA matched label representation only 4 percent of the time.

The Council for Responsible Nutrition (CRN)—the leading trade association representing dietary supplement and functional food manufacturers and ingredient suppliers—issued a statement criticizing the Attorney General’s testing method. “These actions today by the New York State Attorney General’s (AG) office smack of a self-serving publicity stunt under the guise of protecting public health,” CRN president and CEO Steve Mister said. “Supposed concerns about the products in question are based on a novel testing method that has been roundly criticized by botanical scientists who question whether DNA barcoding technology is an appropriate or validated test for determining the presence of herbal ingredients in finished botanical products. Processing during manufacturing of botanical supplements can remove or damage DNA; therefore while a DNA testing method can be useful in some cases, this method well may be the wrong test for these kinds of products.”

GNC issued a press release on February 4, 2015, acknowledging that while it stands behind the quality of its products, it has agreed to temporarily remove a number of its products in New York while working with Attorney General Schneiderman’s office.

Companies: General Nutrition Corp.; Wal-Mart Stores, Inc.; The Walgreen Co.; Target Corp.; Council for Responsible Nutrition

News: Advertising