Direct Sales and MLM

FTC Settles with TriVita. Is the word "Inflammation" off limits when you're selling a health product?

By
Kevin Thompson

< src="https://dev-thompson-burton-wpms.pantheonsite.io/mlmattorney/files/2014/08/Inflammation.gif" alt="Inflammation" width="362" height="218" class="alignleft size-full wp-image-1426" />The FTC has spoken and we better pay attention. Recently, the FTC announced a $3.5M settlement with TriVita, a network marketing company. TriVita is an Arizona corporation that advertises, markets, distributes, and sells Nopalea. Nopelea is a nutrient rich drink derived from the superfruit of the Nopal cactus. TriVita peppered the marketplace with an aggressive marketing campaign that touted the curative properties of Nopelea. The theme of the advertisements: Nopalea is a drink that will reduce bodily inflammation, which will lead to a reduction in pain associated with inflammation-related diseases.In May, the FTC obtained an Injunction against TriVita because of the aggressive claims. In the lawsuit, the FTC found the following claims about Nopalea offensive:• Significantly reduces or eliminates the effects of inflammation on the body• Provides significant relief from pain, including but not limited to, chronic pain, joint pain, back pain, nerve pain, phantom pain, and pain from inflammation, arthritis, fibromyalgia, surgical procedures, or other conditions;• Significantly reduces or relieves swelling of joints and muscles;• Significantly improves breathing or provides significant relief from respiratory conditions, including but not limited to, sinus infections; or• Provides significant relief from skin conditions, including but not limited to psoriasis.The FTC found these claims to be disease claims. The FDA defines disease as “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).” Under this definition, a common cold is considered a “disease.” Basically, if an ingredient is marketed expressly or implicitly as having any kind of positive effect on a disease (as defined above), it’ll be treated as a disease claim and subject to further regulations/penalties.As a result of the settlement, TriVita has agreed to pay a $3.5M fine a refrain implying that its product can be used in the treatment of any diseases.Regarding the product claims above, they're obviously over the line. References to diseases like arthritis, fibromyalgia, sinus infections and psoriasis are obvious examples of what not to do.

But what about inflammation?

If a company states that a product can limit the effects of inflammation, is that considered a “disease claim.” In this article by MonaVie, the word “inflammation” is referenced 16 times. Vemma went so far as to commissioning a report on Vemma’s affect on inflammation. I’m not picking on MonaVie and Vemma, I’m just referencing the links to show that it’s quite common for juice companies to talk about their products’ affect on inflammation in the body.The big question is whether "inflammation" is now in the government's little black book of unusable words. Based on their position in this case, it would certainly seem to be the case. While one could argue that TriVita was not sued SOLELY because of their use of the word inflammation, it was certainly a strong factor. If a company promotes a product as an anti-inflammatory, the logical conclusion is that the field will take it one step further. While "inflammation" by itself is not a disease, the easy association of the word to several ailments will result in the inevitable (and predictable) disease claims. The field will naturally explain that inflammation is a leading cause of various diseases, with arthritis and fibromyalgia being on top of the list. TriVita was too aggressive. Nopalea was advertised as a product that could do more than alleviate ailments, it was advertised as a product that could treat and cure. TriVita, and its field leaders, marketed the product explicitly as one that can mitigate horrible disease symptoms. They portrayed their product as the Ferrari of all anti-inflammatories.

Takeaway

The FTC is taking its job seriously. If a company is going to play in the gray with the word “inflammation,” it's playing with fire. Again, "inflammation" might not be a disease by itself; however, it's going to be nearly impossible to prevent field leaders from taking it to the next level. If a company insists on keeping the word "inflammation" in its marketing literature, it needs to take EXTRA precautions to ensure that the field is not extrapolating the message and stating that the product can cure or mitigate diseases associated with inflammation. This is where compliance enforcement is critical i.e. disciplining people when infractions are observed. Bottom line: While it’s treacherous water to promote a product as one that can reduce inflammation, it’s not illegal to swim there. If the FTC or FDA releases a clear statement regarding their thoughts on whether “inflammation” is an actual disease, I’ll update this article. In the meantime, companies need to tread cautiously. Candidly, I would advise my clients to stop using the word "inflammation" because the message in the field is nearly impossible to control and the downside is too great.What do you think? Do you think this is a fair outcome for TriVita? Should the word "inflammation" be a privilege only allowed by FDA approved drugs?

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