February 20, 2018

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Warning Letter Lessons for Dietary Supplements

The FDA recently issued a warning letter to a dietary supplement company;  KnowledgeBank has always recommended food and supplement companies read warning letters to gain understanding into the regulations and how the FDA approaches such situations.

Remember there are many more FDA inspections, than warning letters.   Letters result when issues do not get addressed adequately and promptly.  This particular warning letter was issued  more than 90-days after the companies original response. The letter covered three broad categories:

  1. Unapproved New Drugs
  2. Adulterated Dietary Supplements
  3. Misbranded Dietary Supplement.

Unapproved New Drugs:

As you read the letter its clear the Unapproved Drug claims are the most egregious issue — the FDA list reasons why they found the supplement was a drug:

“Examples of some of the claims that provide evidence that your product is intended for use as a drug include the following:”

  • “Chinese medicine ….”
  • “[H]as been used in Traditional Chinese Medicine for thousands of years ….”
  • “[B]ees use propolis to protect themselves from bacteria and diseases. Propolis has been around for over 40 million years and has been used by man for thousands of years ….”
  • “Propolis … contains more than 30 different flavonoids and antioxidants to help control free radicals. Free radicals are caused by waste from our body cells that increase with … infections … and toxins. The antioxidants help to neutralize the free radicals and prevent cell damage.”

Adulterated Dietary Supplement:

The FDA broadly outlines the meaning of “adulterated dietary supplement..[a] product has been held under conditions that do not meet the Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Operations for Dietary Supplements (CGMP) regulations, Title 21, Code of Federal Regulations, Part 111 (21 CFR Part 111).”

They then go on the provide the specific reason why the product was adulterated:  “As a distributor that contracts with a manufacturer to manufacture, package, and label dietary supplements on your behalf that your firm releases for distribution under your firm’s name, your firm has an obligation to know what and how manufacturing, packaging, and/or labeling activities are performed so that you can make decisions related to whether your dietary supplement products conform to established specifications and whether to approve and release the products for distribution

Finally the FDA provide examples as to how the distributor’s procedures (such as failure to open the incoming packages) could not possibly allow the distributor to  make informed decisions about their product.

“your written procedures for quality control operations do not include quality control functions such as reviewing documentation from the manufacturers with whom you contract relating to how the products you release into commerce are manufactured and whether they conform to established specifications.”

“your firm must collect reserve samples for each lot of packaged and labeled dietary supplements that you distribute, and hold the samples in accordance with 21 CFR 111.83(b)”

“You failed to establish and follow written procedures for fulfilling the requirements for returned dietary supplements, as required by 21 CFR 111.503”

Misbranded Dietary Supplement:

Misbranding boils down to errors on the label itself.

  • Not labeling parts of the plant:
    • “the label fails to identify the part of the plant (e.g., root, leaves) from which each botanical dietary ingredient in the product is derived, as required by 21 CFR 101.4(h)(1).
  • Incorrect or inconsistent serving size:
    • “Take 1 capsule twice daily,” but the serving size lists “2” capsules.
  • Not recognizing some words like “Good” or “Rich” have regulatory meanings:
    • “Propolis is a rich source of minerals, vitamins C, E, provitamin A, and B-Complex ….” To bear “rich in” claims, a product must contain 20% or more of the RDI or DRV of the nutrients that are the subject of the claim, in accordance with 21 CFR 101.54(c)



February 1, 2018

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FDA Guidance and Opioid Cessation Unapproved Drugs

This week Hyman, Phelps, McNamara PC, in their FDA Law Blog, summarizes two recent FDA events, and provides some insights into their impact. I’ll provide a top line summary.  But you should read the the full articles if you want to understand the background.

  • Guidance on Guidance
    • Essentially the FDA has issued guidance documents.
    • Guidance is supposed to be just that guidance and not legally binding.
    • However guidance has been cited as a reason in FDA Warning Letters, which makes guidance, tacitly, an enforceable regulation.
    • Now theres some push back, the DOJ announced that it will prohibit DOJ from using its civil enforcement authority to convert other agency guidance documents into binding rules.
    • That’s huge!!!   In short this suggests, that an agency can’t use a guidance document to create a new enforceable regulation!
  • Joint Action by FDA and FTC Against Companies Marketing Unapproved Opioid Cessation Products
    • The FDA and the Federal Trade Commission (FTC)  jointly posted warning letters to 11 marketers and distributors of opioid cessation products.
    • Releasing double-digit letters together emphasizes their seriousness of the issue.
    • The FDA rules are clear, dietary supplements and homeopathic remedies, cannot make drug claims.
    • A drug claim treats a disease. Per 21 CFR 109.93(g) a “disease” is damage to an organ, part, structure, or system of the body such that it does not function properly (e.g., cardiovascular disease), or a state of health leading to such dysfunctioning (e.g., hypertension); except that diseases resulting from essential nutrient deficiencies (e.g., scurvy, pellagra) are not included in this definition.”
    • Opioid addiction is a  disease; and prevents the body from functioning properly (i.e. addiction is not normal)
    • As such the 11 companies, are selling unapproved drugs. They have 15 days to respond.

As always please consult your attorney; this information is not intended as legal advice. Knowledge Bank is not a law firm nor do we provide legal advice.

Picture – Justice Department

January 23, 2018

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FDA Posts “DRAFT” guidance on product recalls

January 17th the FDA, posted draft guidance for Recalls:  “Public Warning and Notification of Recalls Under 21 CFR Part 7, Subpart C Guidance for Industry and FDA Staff.”

The draft covers all areas of the FDA. Here we’ll highlight some salient points  Food and Dietary Supplement, but by all means read the full posting to see examples for other FDA categories here.

For reference here’s the link to 21 CFR Part 7

FDA Commissioner Scott Gottlieb statement —

Today we published a draft guidance that better describes the FDA’s policy on public warning and notification of recalled products as part of our effort to ensure better, more timely information reaches consumers. Although we often hear the most about recalled food, this guidance also covers other FDA-regulated products including drugs, medical devices and cosmetics.


Specifically, the draft guidance outlines circumstances when a company should issue a public warning about a recall, describes the general timeline for companies to issue such a warning, discusses what information should be included in a public warning, and describes situations where the FDA may take action to issue its own public warning should a company’s warning be deemed insufficient.  (Gottlieb’s full statement)


Under what circumstances should firms issue public warnings?

Public warnings are for urgent situations to alert the public that a product being recalled presents a serious hazard to health, and where other means for preventing the use of a recalled product appear inadequate  A public warning is also often needed when a recalled product has been widely distributed.

Examples of Food recalls

The following Food recalls present examples of serious hazards to health such that a public warning may be warranted:

  • Recalls of food products initiated by a firm after receipt of consumer reports of illness or injury (including allergic reactions), for which there is an active outbreak associated with the product or its ingredients, or for which FDA has substantiated reports of illness or injury.
  • Recalls of food products that are intended for or would more likely be consumed by vulnerable populations. Examples of vulnerable human populations include infants, toddlers, the elderly, pregnant women, and medically-compromised individuals, who may be more susceptible to foodborne hazards than healthy persons.
  • Recalls of food products initiated because of manufacturing deviations where the consequences of the manufacturing deviations could have significant health impacts; e.g., under processed low-acid canned foods which could result in botulism if the product is consumed.
  • Recalls of food products initiated because of microbiological pathogen findings (e.g., Listeria monocytogenes, Salmonella, etc.) in environmental testing where direct food manufacturing contact surfaces are found to be contaminated.

Who prepares public warnings?

Since firms are “expected” to have a recall strategy 21§7.42(b), firms themselves may issue a recall, but the FDA continues to reserve the right to ensure a recall addresses, “among other things, whether a public warning is needed and how it will be issued.”  The FDA maintains the right to protect public safety as such “If a firm issues a public warning that is deficient in any respect the FDA may supplement or correct that warning with its own public warning.”

What should a public warning include?

The purpose of a public warning is to alert the public that a product being recalled presents a serious hazard to health.  Public warning should be brief and concise and include:

  • Headline:
    • The headline of the public warning should include the brand name, type of product, and the hazard prompting the recall (e.g., “XYZ chocolate chip cookies recalled for potential Salmonella contamination.”).
  • Identity:
    • information to help identify the recalled product including images, codes (e.g., lot number, expiration date, serial number, unique device identification (UDI) number), packaging information or brand names;
  • Geography:
    • the geographic areas and dates of distribution of the product;
  • Defect/Hazard Description
    • a thorough description of the product defect, health hazard involved and reason(s) for recall (e.g., product testing, environmental sampling, etc.);
  • Name/Contact Information
    • the name and contact information for the recalling firm;
  • Consumer Instructions
    • instructions to consumers or users;
  • Defect details
    • the number and nature of any illnesses/injuries/complaints associated with the product; and
  • Illness description
    • a description of common symptoms of any illness of concern.

What NOT to include in  a public warning?

  • Nothing extra:
    • Nothing should detract from or defeat the purpose of the warning.
  • Nothing to diminish the hazard
    • Phrases such as “an abundance of caution,” that can be seen as trying to minimize the hazard, should not be used

How are Public Warnings Distributed and Displayed?

Firms and FDA can alert the public about a recall by various means, including (A) issuing press releases to the media, (B) sending emails to a listserv or subscription service, and (C) posting on FDA and company websites or social media. All of these methods could be used to issue a public warning.

Where are recalls reported?

FDA provides public access to information on recalls by posting a listing of recalls according to their classification in the FDA Enforcement Report.

January 21, 2018

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Planned Food Regulations for 2018

The Federal Government, publishes their Regulatory Agenda’s semi-annually. This Fall’s 2017 agenda has been published  January 12, 2018 Federal Register – “The agenda describes the regulatory and deregulatory actions that are under development or recently completed for each agency.” The complete agenda can be found on reginfo.gov.

For your convenience, KnowledgeBank is filtered the list, to show only regulations impacting the Food and Supplement Industry


Agency Agenda Stage of Rulemaking Title RIN
HHS/FDA Proposed Rule Stage Laboratory Accreditation for Analyses of Foods 0910-AH31
HHS/FDA Proposed Rule Stage Food Labeling: Health Claims; Soy Protein and Coronary Heart Disease 0910-AH43
HHS/FDA Proposed Rule Stage Current Good Manufacturing Practice for Outsourcing Facilities 0910-AH61
HHS/FDA Proposed Rule Stage Updating Public Information Regulations 0910-AH69
HHS/FDA Proposed Rule Stage Revision of Product Jurisdiction Regulations 0910-AH71
HHS/FDA Proposed Rule Stage The Food and Drug Administration Food Safety Modernization Act; Removing Written Assurance Requirements From the Customer Provisions in Certain Implementing Rules 0910-AH77
HHS/FDA Proposed Rule Stage Suspension of Registration of Food Facilities 0910-AH79
HHS/FDA Proposed Rule Stage Permanent Listing of Color Additive Lakes 0910-AH80
HHS/FDA Proposed Rule Stage Food Labeling: Calorie Labeling of Articles of Food Sold From Certain Vending Machines; Front of Package Type Size 0910-AH83
HHS/FDA Proposed Rule Stage Format and Content of Reports Intended to Demonstrate Substantial Equivalence 0910-AH89
HHS/FDA Proposed Rule Stage Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and E 0910-AH92
HHS/FDA Proposed Rule Stage Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, Extension of Compliance Dates for Subpart E 0910-AH93
HHS/FDA Final Rule Stage Label Requirement for Food That Has Been Refused Admission Into the United States 0910-AF61
HHS/FDA Final Rule Stage Food Labeling; Gluten-Free Labeling of Fermented, Hydrolyzed, or Distilled Foods 0910-AH00
USDA/AMS Proposed Rule Stage National Bioengineered Food Disclosure Standard 0581-AD54
USDA/AMS Proposed Rule Stage NOP; National List Amendments, Proposed Rule 0581-AD60
USDA/AMS Proposed Rule Stage NOP: Organic Livestock and Poultry Practices 0581-AD75
USDA/AMS Final Rule Stage NOP; Organic Livestock and Poultry Practices 0581-AD44
USDA/FNS Final Rule Stage Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements 0584-AE53

January 17, 2018

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FDA Extends comment period for Soy Protein and Coronary Heart Disease Health Claims

Background “In the Federal Register of October 31, 2017, FDA published a proposed rule to revoke our regulation authorizing the use of health claims on the relationship between soy protein and coronary heart disease on the label or in the labeling of foods. We proposed this action based on our review of the totality of publicly available scientific evidence currently available and our tentative conclusion that such evidence does not support our previous determination that there is significant scientific agreement among qualified experts for a health claim regarding the relationship between soy protein and reduced risk of coronary heart disease. We provided a 75-day comment period for the proposed rule.

We have received requests for a 60- day extension of the comment period for the proposed rule. Each request conveyed concern that the current comment period does not allow sufficient time to develop a meaningful or thoughtful response to the proposed rule.

FDA has considered the requests and is extending the comment period for the proposed rule until March 19, 2018. We believe that this extension allows adequate time for interested persons to submit comments without significantly delaying rulemaking on these important issues.” source

See previous posting: Rest-in-peace: Loosing status “Soy” will no longer be heart healthy.

January 8, 2018

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New FDA Data Dashboard

The FDA gave us a New Year’s present – with a new Data Dashboard.  They have created a contemporary — wow! yes contemporary! — and aesthetically pleasing dashboard to display publicly available data.  The dashboard covers four areas, Inspections, Compliance Actions, Recalls and Imports/Import Refusals, with data from 2009 thru 2018. The data is broken into broad buckets,  Biologics, Drugs,  Devices, Food/Cosmetics, Tobacco, and Veterinary — unfortutely food, dietary supplements and cosmetic data is all lumped together.

  • FDA Inspection

    • Includes completed and finalized inspections of clinical trial investigators, Institutional Review Boards (IRB), and facilities that manufacture, process, pack, or hold an FDA-regulated product that is currently marketed. See also the FDA Inspections Database
  • Compliance Actions

    • Data pertaining to Warning Letters, Seizures, and Injunctions. The compliance actions disclosed include only finalized and completed actions and are primarily used in the domestic arena. Actions pertaining to foreign firms often take the form of import alerts, and are currently not reported in this Dashboard release.
    • Reminder, the FDA has archived many warning letters – searching FDA.gov site will not find archived letters please use the KnowledgeBank free tool to search for archived warning letters.
  • Recalls

  • Imports/Import Refusals.

    • Interestingly, the source of the import data is not clearly cited.


All in in all a great first step.





November 13, 2017

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Is Restaurant Labeling like a Diet Plan that Never Starts?

The FDA recently released its Draft Guidance for Industry: Menu Labeling Supplemental Guidance, which proudly and prominently sstates “Contains Nonbinding Recommendations. Draft – Not for Implementation.”  


Seems that the FDA isn’t too sure about the rule, and others have taken notice.


Veneble LLP, points out the Menu Labeling laws might never get implemented.  [Source: Will FDA Be Forced To Eat Menu Labeling?]  As we’ve previously reported (Menu-Labeling Regulations: Congressional Subcommittee June 9th, FDA Clarifies Menu Labeling Compliance DateRestaurant Nutrition Labeling Deadline Extended) The FDA has extended the deadline several times.  The latest deadline is May 7th, 2017 – some 2 years 5 months and 6 days after the original 2015 deadline.


The PDF guidance document, impressive at 36 pages, provides very nice graphics with samples as to how the new rules might be implemented at the point of sale. However, the Veneble article says, “If the [restaurant] material’s “primary purpose” is it to “entice” customers into the establishment, then, according to FDA’s guidance, it need not include calorie disclosures.”  But more importantly  “This approach stumbles quickly. A menu facing outward on a restaurant window is intended “primarily” to “entice” and to offer specific food items for sale.”


With “food menu labeling” and “food enticement labeling” being very much open to interpretation its obvious Veneble has it right when they say ” If and when restaurants…implement…menu labeling requirements and [the] FDA brings enforcement…there is enormous potential for a regulatory and litigation morass.”


As always, for legal advice please consult your attorney. Knowledge Bank does not provide legal advice. Knowledge Bank provides the food and dietary supplement industries with science,  nutrition and regulatory advisory services.  We provide “health checkups” for your labels. “

November 2, 2017

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Losing status “Soy” may no longer be heart healthy.

On Oct 31st, the FDA announced a new proposed ruling, to revoke 21 CFR 101.82 ” Health claims: Soy protein and risk of coronary heart disease (CHD).”


The announcement is carefully worded and long winded, to say the FDA has the right to re-evaluate data, and revoke claims when the data no longer supports the claim.


The FDA certainly has to be careful since soy beans are  a multi-billion dollar industry, and the U.S. is the world’s leading producer [Source: USDA Soybeans and oil crops].


The FDA knows what its up against.  So it is no wonder,  they take 20 pages to list in detail their position, and cite 230 bibliographic sources!!!


Its conjecture, but it seems like soy health two health  claims will be gone:


  1. 25 grams of soy protein a day, as part of a diet low in saturated fat and cholesterol, may reduce the risk of heart disease. A serving of [name of food] supplies __ grams of soy protein.
  2. Diets low in saturated fat and cholesterol that include 25 grams of soy protein a day may reduce the risk of heart disease. One serving of [name of food] provides __ grams of soy protein.


Interested parties have until January 16, 2018 to submit written or electronic comments on the proposed rule.  Massive comments will certainly  delay the process, as the FDA compiles them and systematically responds to them.  But unless their is actual new research that hasn’t yet been published it seems unlikely the outcome will change.




October 24, 2017

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FDA Releases Convenient Graphic for FSMA Deadlines

The Food and Drug Administration has posted a new webpage that consolidates information on FSMA (Food Safety Modernization Act.)


Most notably they have provided a graphic with key compliance deadlines.  The new FDA webpage does a good job of collecting the definitions in one place, but also highlights the complexity these regulations impose.


Be careful when reading the deadlines!!!  “Small” in one category is not the same “Small” in another category.  Different regulation sections have different definitions!!!

Download the Compliance Dates (PDF: 97KB)



October 23, 2017

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Is a “Healthy” food label claim now just puffery?

Keller and Heckman LLP in their blog, alerted us to a recent Wall Street Journal interview of FDA Commissioner, Dr. Scott Gottlieb. Both the original interview and K&H’s take aways are worth reading, but here’s some key points.

  • A Healthy claim might simply be a commercial claim, and thus not a FDA regulated claim.
    • “We might make a decision that that [healthy] claim is more of a commercial claim and doesn’t really convey something important from a public-health standpoint to a consumer.” (Gottlieb)
    • This begs the question if its not a claim and just a commercial claim, then will “Healthy” simply be a type of puffery. Remember puffery is just a grand claim that the public would never actually consider to be true….such as the phrase “The worlds greatest hamburgers!” So is the phase “The worlds healthiest hamburgers!” just a commercial claims and ok to use? Short answer – consult your attorney.
  • The FDA considers claims (i.e. label and labeling claims) to be a matter of public health.
    • “This [food label regulation] isn’t just an issue of transparency. This is an issue of public health.” (Gottlieb)
    • “You [WSJ Editor, Jacob Bunge]  talk about them as transparency initiatives. I look at them as public-health initiatives.” (Gottlieb)
    • Its worth noting the phrase “public-health” is repeated 9 times, which only emphasizes how much the FDA’s mission, which begins “The Food and Drug Administration is responsible for protecting the public health by…”,  is engrained into their culture,
  • The FDA doesn’t like that states, like California,  end up regulating.
    • ““Healthy”…is a subject of litigation in California.
    • “When certain claims that might be important to providing information to consumers get made in the absence of a scientific framework and get litigated in state courts and torts, outside our review, I think that isn’t what was intended.” (Gottlieb)
  • “Healthy” generates a bunch of industry angst.
    • Keller and Heckman point out, “In September 2016, FDA issued a request for comments on the use of the term “healthy” on food labels, and by April 26, 2017, the Agency received over 1,000 comments.”

Bottom line: The word “healthy” is clearly defined by FDA’s current 21CFR101.55, open to consumer’s interpretation, and subject to litigation on many fronts.