She currently supervises the Consumer and Workplace Protection Unit at the Los Angeles City Attorney’s Office.
Radicle Science’s new Radicle Perspectives webinar series features industry trailblazers, academics, retailers, and mavericks on hard-hitting topics affecting the dietary supplements industry. Given the momentous Federal Trade Commission Health Product Compliance Guidance released in December of 2022 and the subsequent 700 warning letters to leading supplement industry companies, we put Christina Tusan in the hot seat to get her perspective on the recent developments.
Christina is a nationally recognized consumer protection trial attorney who has investigated, prosecuted, and supervised the litigation of complex unfair competition cases on behalf of the FTC, the California Attorney General, and the Los Angeles City Attorney’s Office. She has obtained judgments or negotiated settlements on consumer protection matters valued at over $1 billion.
The Federal Trade Commission recognized her contribution with her three different awards for her ground-breaking work with the agency, while the California Attorney General honored her with an “Award for Excellence” for her consumer protection work.
When it comes to providing compliance tips and how to avoid more costly trips to the Department of Justice, she didn’t disappoint. Here are the 5 takeaways from Radicle Science’s fireside chat with Christina Tusan:
1. The possible reason for the FTC sending 700 warning letters? There is legitimate concern.
Not speaking on behalf of any agency, Christina’s personal opinion warned that some type of claims being made must have piqued the concern of the FTC. She cautioned brands that are in receipt of a warning letter to take them seriously, and if you have questions, ask. During her time in various government agencies, brands that were proactive, as opposed to dismissive, generally fared better. Per Christina, the lucky ones receive a warning letter, but nothing prevents the FTC from going straight to legal action.
2. The role of the FTC and Food and Drug Administration (FDA) is different, but can and does overlap.
Christina clarified that the FTC has broad jurisdiction over consumer protection issues, especially as it relates to advertising, while the FDA covers labeling claims. However, if a claim is being made that is unfair or deceptive, the FTC can declare that the representations are not accurate. For example, the FDA may have a requirement on how a claim is calculated, but if the claim representation is not consistent with how it’s supposed to be calculated, it can quickly turn into an FTC issue.
3.What type of documentation is the gold standard for claim substantiation? Competent reliable scientific evidence.
Christina provided plenty of examples of what she has seen in her years investigating claims that will not cut the mustard, including doctored white papers, anecdotal or partially anecdotal documentation, and data with broad generalizations and creative liberties. She described clinical trials as one example of competent, reliable scientific evidence. (Note to self: “Email Radicle Science about its gold standard clinical trials”)
4. If you receive a FTC warning letter, do a comprehensive review of your label claim approval process.
Begin with a label claim risk assessment for all your products. While a FTC warning letter could be taking issue with one specific claim, the process could reveal a more systemic issue with how claims are approved (or not approved) within your organization. If you receive a warning letter, chances are a much more comprehensive review of label claims, website content, and social media posts is warranted. Evaluating the root cause for how the claim was allowed to be published needs to be identified.
5. When it comes to Prop 65 compliance, brands either don’t do the necessary proactive testing or they don’t want to make the necessary Prop 65 disclosure on pack.
Prop 65 is a warning requirement and has serious repercussions, including violations and civil penalties. If a brand receives a Prop 65 60-day warning letter, start by investigating what your own test results say. Address the issue head on, fix it, and take responsibility to resolve the issue. Bottom line: Know your product!