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NY Attorney General Doubles Down in His Supplement Attack

NY Attorney General Doubles Down in His Supplement Attack
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Having made his initial move based on discredited tests, he is now broadening the offensive and pulling in AGs from other states. Action Alert!
Early last month, New York Attorney General Eric Schneiderman sent cease-and-desist letters to four major national chain retailers, charging them with selling nutritional supplements that were “deliberately mislabeled” and “potentially dangerous to public health.”
As you may recall, Mr. Schneiderman took these actions on the basis of only one testing technology from only one laboratory, performed by a scientist whose work centers on the evolutionary genetics of reptiles. A new white paper released by four industry experts thoroughly outlines why DNA barcoding—the test used in Mr. Schneiderman’s investigation—is not a reliable means for testing the contents of herbal dietary supplements.
As the paper demonstrates, DNA barcoding is a well-established technique “for distinguishing fresh or living tissue obtained from distinct species such as cows and pigs” but is utterly inappropriate for identifying plant species, much less plant extracts in which little or no DNA is extracted. “As a result,” the paper states, “attempts to sequence and analyze [botanical extracts] typically would lead to false negative results, as suspected in the recent investigation by the NY AG.”
The problem, according to the authors of the paper, is that

society has developed an uncritical—and sometimes, misplaced acceptance of the ability of DNA testing to be 100% reliable, no matter how it is performed and who performs it. However, the fact is that we would not expect DNA testing of humans to be performed by a botanist. The same holds true in DNA testing of botanical dietary supplements; the specific laboratory and equipment, the particular methods used, and the individual scientists all play an important role in the accuracy and validity of DNA test results.

DNA barcoding has previously been shown to be inaccurate by botanical scientists and is not the standard utilized by the FDA in determining if products are appropriately labeled. Even scientists who are generally critical of nutritional supplements, such as Dr. Pieter Cohen of Harvard Medical School, agree that the wrong test was used.
Apparently Mr. Schneiderman isn’t going to let scientific fact and good sense get in the way of his campaign against supplements. Rather than showing the same transparency he expects of industry by making the results of the DNA tests public, he is pulling more supplement companies into the fracas. Letters were sent to four additional companies (Nature’s Way, NBTY, Nutraceutical, and Pharmavite) requesting what would likely amount to hundreds of thousands of pages of documents pertaining to products sold in New York. The AG’s document request includes:

  • copies of all manufacturing, licensing or sales contracts since January 1, 2013
  • a detailed description of all testing methods used on finished products to substantiate affirmative claims such as “gluten-free” or “hypoallergenic”; and
  • copies of all reports, complaints, or other documents reflecting adverse health.

There’s a certain logic to this tactic: If you don’t know what you’re looking for, just ask for anything and everything.
In another bold step, GNC, Walmart, Target, and Walgreen’s have been subpoenaed by the New York AG’s office, which is now demanding evidence to support structure/function claims on their labels. This is a bizarre and worrisome shift of focus. Structure/function claims are statements that describe the role of a nutrient or dietary ingredient as it affects normal structure or function in humans—for example, “calcium builds strong bones” or “vitamin D boosts immune system function”—and food and supplement producers are legally allowed to make such claims. The FDA already regulates structure/function claims made by supplement companies, just as it already has full authority to test supplements for their contents.
Both of these tactics are little more than fishing expeditions conducted by the New York AG because, in all likelihood, they couldn’t substantiate their initial claims based on the DNA barcoding tests when they reviewed the science.
Mr. Schneiderman has also built a coalition of other state AGs to “crack down on fraud and quality control issues in the herbal supplement industry.” Already the AGs from Indiana, Connecticut, and Puerto Rico have reportedly joined Mr. Schneiderman. One can only assume more attacks against supplements are on the horizon.
Adding to the injustice here is that most of the news reports about this incident paint nutritional supplements in a negative light, when the vast majority of manufacturers subject their herbal products to rigorous and open scientific testing. On top of that, they are held to current Good Manufacturing Practices (cGMP) guidelines, which require regular testing using accepted and scientifically validated methodologies. In fact, such a testing regimen, already in use throughout the industry, is one reason supplements have such an exemplary track record of safety and efficacy.
Action Alert! Write to your state Attorney General’s office and tell your AG not to support these unsubstantiated attacks against the supplement industry! Enough is enough. Please send your message immediately!

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