This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Some have referred to Utah as the epicenter of multi-level marketing — a geographical locale where hundreds of distributors of MLM companies not only market their wares but also sell a business opportunity. In making these marketing pitches, however, far too many companies and distributors selling supplements are making unsubstantiated health claims about diseases and disorders. The Internet is littered with thousands of claims that these supplements can cure, treat and/or alleviate the symptoms of everything ranging from cancer to diabetes to multiple sclerosis. Not only do such health claims violate federal law, but the potential harm to consumers cannot be overstated.
Under Federal Trade Commission law, one cannot make a representation that any food, drug or dietary supplement is effective in the diagnosis, cure, mitigation, treatment or prevention of any disease or disorder unless such a claim can be supported by competent and reliable scientific evidence. Competent and reliable evidence in these instances requires clinical trials with large sampling sizes that are placebo-controlled, randomized and double-blind.
My organization, Truth in Advertising (TINA.org), has reviewed the marketing practices of a multitude of MLM organizations and their distributors. We have documented thousands of health claims concerning diseases and disorders but have yet to find a company with the necessary scientific support to make such claims. Based on TINA.org's research, it is rare, to say the very least, to find any MLM company that has the level of scientific substantiation necessary to support the disease claims touted in their marketing.
And even if an MLM company and its distributors were able to satisfy the legal requirements established by the FTC, there is yet another federal agency whose laws must be adhered to — the Food and Drug Administration (FDA). The FDA defines a drug as a substance intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease, which means that supplements marketed as such come within the definition of a drug under FDA law. Such products must be subject to rigorous study and testing before gaining FDA approval to be marketed to the general public.
These general legal standards for disease-treatment claims are not only binding on MLM companies but also on their distributors. Unfortunately, these laws have not stopped MLM distributors from making and publishing thousands of unsubstantiated and unlawful health testimonials on the Internet as well as on social media. And it's not just entry-level members making these inappropriate claims. Distributors at every level in MLM organizations are making such declarations.
Unfortunately, this is where there is a plethora of issues within the MLM industry. Thousands of distributors and dozens of companies appear to be under the mistaken impression that if it is their honest belief or opinion that a product treats or cures a disease then it is acceptable to use such testimonials to market their supplements and promote their businesses. But it is not enough that a testimonial represents the honest opinion of the endorser. FTC and FDA law says otherwise. Unless there is the appropriate scientific backup and testing no one associated with an MLM business — not the company, not its distributors, not its medical board or other expert endorsers — can make such disease-treatment claims.
Moreover, the First Amendment will not provide a shield to protect these false and misleading claims that are being used by MLM businesses and their distributors. For commercial speech to come within the ambit of the First Amendment, it at least must concern lawful activity and not be misleading. Consequently, misleading advertising may be prohibited entirely — and unsubstantiated disease-treatment claims used to sell products and a business opportunity are misleading.
When it comes to health claims involving diseases and disorders, the law is clear. It's time that those selling supplements within the MLM industry take heed and put an end to such "cure-all" claims.
Bonnie Patten is executive director of truthinadvertising.org (TINA.org), a national nonprofit organization based in Connecticut, which investigates false advertising and deceptive marketing.