Fade to Gray: FTC Colors in Enforcement Against Hair Supplement Marketers2 Jun, 2015 By: La Toya Sutton, Linda A. Goldstein
The Federal Trade Commission’s (FTC) scrutiny of supplements that claim to cure diseases or cause significant weight loss without exercise is well known and amply documented. But recently, the agency made clear that its supplement advertising investigations cannot be pigeonholed when it went after the marketers of several hair care supplements. On May 13, the agency announced settlements with two marketers of dietary supplement products regarding charges that they made unfounded claims that their products could prevent or reverse gray hair.
The settlements are with GetAwayGrey LLC and its president, Robin Duner-Fenter – the sellers of “Get Away Grey” – and Rise-N-Shine LLC and its president, Cathy Beggan – the sellers of “Go Away Gray.” The FTC also filed a complaint against COORGA Nutraceuticals Corp. and its principal, Garfield Coore, which markets a line of products called “Grey Defence.” That complaint is pending in federal court in Wyoming.
The cases stem from various claims the marketers made regarding their products’ ability to help stop hair from turning gray. Specifically, they claimed that the active ingredient in the supplements – an enzyme called catalase – could neutralize the effects of hydrogen peroxide, the chemical that causes hair to gray. In addition to selling a dietary supplement, Rise-N-Shine also has marketed a shampoo and hair conditioner that contained the same ingredient. Consumers paid between $30 and $70 per bottle for the products, which were sold online and at national retailers like Walgreens and CVS.
The FTC’s complaints allege that ads for the products made false or unsubstantiated claims that the products reverse or prevent the formation of gray hair, including:
- “Watch your grey go away! Now, grey hair can be stopped and reversed … We stop grey hair by using a vitamin that includes the Catalase enzyme. Just two vitamin pills a day can bring back your natural hair color.” (GetAwayGrey)
- “New & Improved! Now With 50% More Catalase … ‘After 3 months of Go Away Gray, I can see white roots coming in darker. I’m very impressed!’ – D. Heindl” (Rise-N-Shine)
- “65% of Grey Defence Customers in [an] Observational Study Reversed Their Grey! Grey Defence Reverses Greying – Detailed Observational Study Proves it.” (COORGA)
The advertising for these products drew national attention – in 2013, articles discussing their scientific legitimacy appeared in USA Today, Forbes, Consumer Reports and the Chicago Tribune.
The proposed orders against GetAwayGrey and Rise-N-Shine prohibit the defendants from representing that a covered product reverses or prevents the formation of gray hair, and from making any claim about the health benefits, performance, or efficacy of any dietary supplement, food, drug, or cosmetic, unless the claim is non-misleading and the defendants have competent and reliable scientific evidence to substantiate it.
Interestingly, the orders also contain provisions specifically requiring that the defendants retain certain records of human clinical testing that they rely on as competent and reliable scientific evidence. Marketers of supplements and similar health-related products should take note, and ensure their claim substantiation files are always up-to-date and, as a practical matter, readily accessible should the FTC come knocking.
The orders include a suspended $1.8 million judgment against the GetAwayGrey defendants, and a $2 million suspended judgment against the Rise-N-Shine defendants, which would become due if the defendants are found to have misrepresented their financial conditions.
This case also serves as a reminder of the importance of the advertising industry’s self-regulatory process. In 2013, COORGA declined to participate in a review of its advertising by the National Advertising Division of the Council of Better Business Bureaus (NAD). In the press release concerning the settlements, the FTC explicitly acknowledged that the case against COORGA Nutraceuticals was based on a referral from NAD.
Linda A. Goldstein is chair and of the Advertising, Marketing and Media division of Manatt Phelps & Phillips LLP, based in the firm’s New York office. She can be reached at email@example.com. La Toya Sutton is an associate in the firm’s Washington, D.C., office and can be reached at firstname.lastname@example.org.