For years, many in the medical and scientific community have taken issue with the bold claims by Dr. Mehmet Oz about weight loss products. So it shouldn’t have come as a surprise that he recently was called before a Senate subcommittee on consumer protection to defend his boosting of what have been described as “bogus” products.
Subcommittee members contended that Oz promoted weight loss fraud on “The Dr. Oz Show” by referring to certain items as a “miracle” or “weight loss cure,” even though science suggests otherwise. A mention by Oz boosted sales of these products and encouraged misleading ads—a phenomenon known as “The Dr. Oz Effect.” Some of the products mentioned in the Senate hearing were green coffee extract, raspberry ketone and Garcinia cambogia extract.
Oz defended himself by saying he and his show’s producers were trying to encourage people to maintain their weight loss goals and provide hope. He continued by saying he believes in the products he promotes on his show—and has even recommended them to his family. Oz also claimed that companies began to use his image and name to sell their products without his permission. He said he does not receive any kickbacks from the products sold by these companies. He also said the show’s writers use “flowerly language” to excite and engage the audience.
Such “flowerly language”—and a range of other methods—seem to be working, as the number of Americans taking supplements continues to rise. According to the National Center for Health Statistics (NCHS) and Centers for Disease Control and Prevention (CDC), the percentage of American consumers on supplements has risen from 42 percent in 1988 to 53 percent in 2006. And the Council for Responsible Nutrition (CRN) says that number was around 68 percent in 2011.
Below is a chart of U.S. supplement use over the past 20 years.
FTC supplement crackdown
The Senate hearing earlier in June was “a follow-up to a Federal Trade Commission crackdown in January on fraudulent diet products,” according to Reuters. The Federal Trade Commission (FTC) is responsible for policing advertising in the supplement industry.
The crackdown earlier this year marked the second largest deceptive advertising settlement in the history of the FTC and targeted Sensa (a weight loss product you sprinkle on food), L’Occitane (a weight loss cream), HCG Diet Direct (a human hormone treatment), and LeanSpa (a colon cleanse). The FTC collected $34 million as part of the settlement, which will be refunded to consumers who bought the products.
According to Food Navigator, the FTC has brought 82 weight loss-related lawsuit actions in the past decade, adding up to $107 million. This year the FTC also announced the creation of Operation Failed Resolution to fight false weight loss products and advertising. The program educates people and warns companies about making false weight loss claims. The FTC contends that many companies use deceptive before-and-after photos, cherry pick their best outcomes, or blatantly lie.
Investigating the supplement industry
Many Americans don’t realize that the Food and Drug Administration (FDA), which regulates the approval, marketing and use of prescription drugs, does not have the authority to do the same with diet supplements. We asked John Swartzberg, clinical professor, emeritus, at the University of California, Berkeley, to explain how the supplement industry operates and why consumers should beware.
Supplements are not regulated by the FDA like medication is because of the DSHEA law. Can you explain a little more about this law?
DSHEA was passed in 1994. Senator Orrin Hatch was one of the main promoters, along with Senator Tom Harkin, of this act, the Dietary Supplement and Health Education Act (DSHEA), which sounds like a good act. But in reality, what it did was free the supplement manufacturers from almost any FDA control. What DSHEA did is it put the burden of proving a dietary supplement is safe and effective onto the FDA as opposed to the manufacturer.
That allows the manufacturers to be producing products that may not be safe and may not be effective because the FDA has limited resources. It certainly can’t do the studies to check that every one of these is safe and effective. It’s very hard for the FDA to do it even for a small number of products, much less the enormous number of supplements. So it allowed supplement manufacturers to produce things without any data about safety and effectiveness.
The FTC is in charge of cracking down on these companies that make these claims. It sounds like a game of catch me if you can.
You got it. DSHEA made a distinction that supplement manufacturers can’t make medical or disease claims—they call it the structure function claims. So what it said is although supplements can’t make medical/disease claims, they can make claims about how a product could potentially help maintain health. So let me give you an example: They can’t say it reduces cholesterol, because that would be a medical claim, but they can say it could lead to healthy cholesterol. They can’t say it treats depression, which would be a medical treatment, but they can say it contributes to or supports a healthy emotional state. So these distinctions are very subtle and are certainly lost on the reader that can’t make the distinction between a medical claim and a structure function claim.
Why was this bill passed?
I can answer that very simply. At the time DSHEA passed, the state with the largest supplement manufacturer industry was Utah and Sen. Hatch is a senator from Utah. Number two is Hatch’s son was very involved in the supplement industry. In fairness to Sen. Hatch, he may be a believer in supplements, but the answer is he protected a lot of the industry in Utah with that law.
What it also means is these products are under very loose control in terms of knowing what’s in them and how accurate the listed amount of ingredient is in it. There’s very little assurance that that’s the case. If you buy a supplement, they may say there’s X amount of whatever, and you have no idea that there’s X amount or Y amount or Z amount—and you may have no idea what else is in there.
The FTC has been cracking down more this year on these manufacturers and there seems to be a lot of problems with the industry. So why doesn’t Congress change this bill?
Well, it was promoted in 1994 as freedom of speech. They got thousands and thousands of people to write letters saying to the effect that ‘I don’t want the government telling me what I can and cannot buy. I want the freedom to be able to do this.’ So it was framed as an argument for freedom of speech and that’s how Sen. Hatch and his colleagues pushed it through.
What’s prohibiting the FDA from taking a larger role in this?
The FDA wanted to take control but was not given the resources by Congress. Now, to take control and regulate something like supplements would require more money, resources, and they have to hire a lot of people to do that. Yes, you have to spend more in terms of the FDA budget. On the other hand, it would be an enormous amount of money saved by the American public to get safe and effective products.
And the FTC can’t stop these manufacturers until the products are already on the market and consumers have already spent their money on them?
Yes. The FTC can only regulate interstate commerce. So you’re right, the products have to be sold and advertised and there has to be a perception of false advertising for the FTC to go after them.
So basically the responsibility falls on to the consumer to investigate whether the products they get are legitimate or not.
Except there’s almost no way the consumer can know. If you go to the store and you buy a multivitamin, how do you know what kind of manufacturing protocol that company has? People ask me about the vitamin D supplement I take and how I know what fillers are in them. The answer is I don’t know. People can go to look up ConsumerLab.com, which is a good independent resource where they test a lot of products. That can give you some degree of assurance. But there’s very little a consumer can do.
The FTC has been cracking down more recently. Why do you think that is?
The FTC has limited resources so they’re going to have to go after cases that are clearly flagrant. So it’s not like the FTC just all of a sudden realized that these claims for weight loss were bogus. They’ve known for a long time. So the FTC decided that they were going to apply their limited resources to going after this [Dr. Oz]. If the FTC had more resources, it’d go after more people.
These companies start out and make a ton of money quickly and then they get closed down. And when they close down, they just open up in a different state or locale and with a different name of the product and the FTC is always one step behind them. It’s the Wild West.
What are red flags consumers should be aware of when it comes to buying supplements?
I think they should become really well-informed before they buy anything in the first place. To become well-informed, they should read literature not by people who want to sell them something, but by people who have a neutral interest. What we do at the Berkeley Wellness Letter when we talk about supplements could be a source. Also Harvard’s newsletters, Hopkins, and different universities. There’s lots of university sites that publish information on supplements that are good places to go. Another good site is the National Institutes of Health's Center for Complementary and Alternative Medicine.
The second thing is to recognize that the science behind most of these supplements is negligible, with a very few exceptions, such as omega-3, vitamin D, calcium, multivitamins. Besides these, I think there is very little science to support any supplements.
Ignore the advertising—I can’t underline that more—ignore the advertising. People are paid gazillion dollars to cleverly advertise products. So it’s terribly important that consumers ignore all of that advertising because it’s just going to mislead them.
For people looking to lose weight, what are some important points they should keep in mind?
One, it’s very difficult. Two, they need to set realistic goals. Three, they have to recognize that they don’t want to just lose weight. They want to lose weight and sustain the weight loss. It doesn’t do them any good to lose weight and put it back on.
Another thing is there is no diet that fits all and that people should pick diets that seem realistic to them and fit in with their daily life. I know of no supplement that anybody can take that is going to allow them to lose weight without cutting calories and exercise. There is no supplement on the market that will allow people to just take this pill and then they will lose weight.
Do you think these hearings will change anything in the supplement industry going forward?
No. The supplement industry is about a $38 billion a year industry. As long as there’s some easy money to be made, nothing is going to change. As long as people are still willing to throw their money away, there will be people there to take it.
Dr. Oz defended himself by saying these claims offer people hope. What is the hope for people out there?
He is not giving advice like a doctor; he is giving advice like a showman. The hope is, yes, you can lose weight. It will require a change in your lifestyle. You’re going to have to exercise and learn discipline in terms of what you’re eating and what foods you are consuming. If you do that, there is a very good chance it will be successful in the short run. And if you can sustain that, there’s every reason to believe it will help you in the long run. Furthermore, it will reduce your risk of dying young [from obesity-related illnesses]. So you’re investing in your future. We tend to think of cause-effect as being very immediate. But the effect may be two decades down the road. If you change your thinking to that, then you will be successful.