David R. Henderson  

Government's Misinformation about Herbal Supplements

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A few days ago, I posted about a problem with government provision of information and government's mandates that private firms provide information. The problem: there's no guarantee and, moreover, no reason to think, that the government will provide or mandate the right information.

Then I came across an excellent piece by Walter Olson that makes the point well for a particular case: the case of herbal supplements. In this case, the government misled and never, once it was discovered that it misled, tried to correct the record. So it left people, including, in this case, me, thinking it had a point. I actually had started to change my sources for herbal supplements that I take because I had thought, until I read Olson's article, that many of the herbal supplement providers were as fraudulent as the New York state attorney general, Eric Schneiderman, had claimed.

Last February, Schneiderman announced a big enforcement action against herbal supplement providers. Olson gives the details:

The initial news coverage was breathless. "Many pills and capsules sold as herbal 'supplements' contain little more than powdered rice and house plants, according to a report released Monday by the office of New York state attorney general Eric Schneiderman," ran The Atlantic's report. "An investigation found that nearly four of five herbal supplements do not contain the ingredients listed on labels, and many supplements--tested from among leading store-brand products sold at GNC, Target, Walmart, and Walgreens--contain no plant substance of any kind at all."

I had read this at the time. I had been buying many of my herbal supplements from GNC and had started to switch providers.

But then the plot thickened or, as my mother used to say, sickened. Olson writes:

But the fraud turned out to be of a rather different sort. Almost at once, experts in relevant biochemical fields--including some longtime vocal critics of the herbal-supplement industry--began to speak out: Schneiderman's office had gotten nonsensical results by using an inappropriate test, one that neither the industry nor its regulators use to assay final purity. DNA barcode testing, which searches for a particular snippet of DNA distinctive to a plant, may be fine when checking the authenticity of a sample of unprocessed raw plant material. But dietary supplements are made by extracting the so-called active ingredient, which often means prolonged heating, use of solvents, and filtering that removes or breaks down the DNA. The better the purification methods used to isolate the active ingredient, in fact, the likelier that the original plant's identifiable DNA will be lost. Harvard Medical School's Pieter Cohen, a leading critic of supplement marketing, told Forbes that it was "no surprise" that Schneiderman's tests came out negative: "Even if DNA got in, we'd expect it to be destroyed or denatured." Meanwhile, GNC, the biggest player in supplements retailing, went back and retested the accused products from its line and found, Schneiderman notwithstanding, that all contained the labeled active ingredient.

We've become accustomed to government regulators shaking down the regulatees even when they have done nothing wrong. John Cochrane recently wrote at length about this. So, when a company fights back, it's a "man bites dog" story. But that's not what happened. Olson quotes from Bill Hammond of the Daily News:
The company admitted no wrongdoing, paid no fine and was allowed to go back to selling exactly the same products manufactured in exactly the same way.

The AG who weeks earlier had strongly implied that most of GNC's products were fake was now affirming that he found "no evidence" that the company deviated from federal regulations.

GNC did agree to conduct DNA testing going forward--but on its raw materials, not the finished products [emphasis added]. It also agreed to post signs explaining the difference between plants and processed extracts, in case consumers were confused about that.


As Olson summarizes:
The whole affair inflicted millions of dollars in economic damage on companies that had done nothing wrong, while sending consumers around the country into needless spasms of anger, worry, and outrage. As Hammond writes: "It turns out the one peddling snake oil was Schneiderman himself."


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COMMENTS (12 to date)
AS writes:

Hopefully the political process works and he
fails reelection.

Jon Murphy writes:

I suppose this also highlights the danger of having "non-experts" in charge of enforcement and/or legislation.

Glenn writes:

I honestly don't know what to believe at this point. If the extraction and isolation process used by supplement makers to concentrate their product "denatures" the parent DNA to the point that it is unrecognizable under standard exams, why does the supplement retain any value which the original planet claimed?

Can we separately test for the presence of whatever it was about the plant that we claimed was beneficial in the first place (e.g., for the presence of the vitamins, mineral, or amino acids)? And doesn't this mean the government actually had the right of it on the subject of pills which simply asserted to contain supplementary plant material?

If my pill bottle claims to contain 1000mg of garlic per serving, but actually contains no identifiable garlic DNA, does it actually contain garlic? It's beginning to sound like the homeopathic approach to supplementation.

MikeP writes:

If the extraction and isolation process used by supplement makers to concentrate their product "denatures" the parent DNA to the point that it is unrecognizable under standard exams, why does the supplement retain any value which the original planet claimed?

Because the value of the plant as a supplement isn't in the DNA.

What percentage of living matter is DNA? Since DNA works solely as DNA, why would anyone expect any DNA whatsoever in any useful extract from the plant?

...well, anyone except a demagogue prosecutor politician.

stronginva writes:

I am playing a tiny violin for GNC. GNC has agreed many time to settlements with the FTC because it could not back up many of the claims it makes for its products. http://www.quackwatch.com/02ConsumerProtection/gnc.html

Its stores used to be filled with POS advertising extolling health benefits for its products, even though there was no scientific basis for the claim. Those times the government got it right. I know because I was at the FTC for some of this. The difference is likely this. The FTC has a tradition of using experts in various fields to back up their cases.

So NY just has a lousy consumer protection office. The FTC, which is headed by appointees from both parties, overcomes ideological squabbles (for the most part) because its staff is aware that one way around political fights is to back the case with top experts.

The author should talk with his doctor before taking any supplements. Doctors prescribe things such as vitamins only for very specific conditions. Otherwise one is only paying good money for expensive urine.

MikeP writes:

Hopefully the political process works and he fails reelection.

Yeah... I think we're looking at rows 3 and 4 of the implication truth table.

john hare writes:
Hopefully the political process works and he fails reelection.

I would prefer that the AG involved face prosecution.

Thomas Sewell writes:

Next you'll be claiming the EPA could massively pollute a river.... such ridiculous claims.

Hazel Meade writes:

@Glenn, I would assume that the label would say "garlic extract", or something to that effect.
A garlic extract doesn't necessarily contain garlic DNA, just as a purified fish oil/ Omega-3 supplement doesn't necessarily contain any fish DNA. If you want a decent Omega-3/DHA supplement, you're going to want something that has been purified, if only to remove the (horrible) fishy taste. The less fishy taste there is the less likely there is to be any DNA in it.


@stronginva
Not that I'm a huge fan of the herbal supplement industry, because the claims very often are false, but the regulation of herbal supplements falls in a wierd area of the law. They cannot be patented because they are already public domain, which means there is little money to be had in proving or disproving any of the health claims. At the same time, because they are not FDA-approved drugs you cannot make health claims on the labeling. And yet, in many cases there ARE legitimate health benefits. It's just that it's illegal to say so without going through FDA approval, and unprofitable to bother with the expensive, time consuming approval process, because herbs are public domain already. As a result, many herbal remedies languish in this kind of limbo where there's plenty of evidence they work but nobody is allowed to say so.

Glenn writes:

@Hazel: That all seems reasonable, and I honestly don't know what the "truth" is. But if, as a reasonably intelligent and well educated layman, I could be confused by these details, it seems plausible that public regulators could be as well.

Therefore, a formal inquiry that ended with clarification on the part of marketers and manufacturers doesn't seem absurd. In fact, it all seems perfectly reasonable.

Herbal supplement manufacturers already enjoy broad exemption from existing federal food and drug regulations, and operate in an industry notorious for quackery and pseudoscience. With that kind of prior, why wouldn't an AG respond the way New York did? I think the reason we all "believed" this story initially(or at least found the purported result plausible) was that we also "believe" supplement makers are basically shady grey marketeers to begin with. True believers excluded, of course.

MikeP writes:

New York prosecutors already enjoy broad immunity from existing federal and state laws, and operate in a position notorious for persecution and demagoguery. With that kind of prior, why wouldn't a merchant whose product is so trivially verified respond the way GNC did? I think the reason we all were skeptical of this story initially (or at least found the purported result indistinguishable from grandstanding) was that we also "believe" New York prosecutors are basically shady politicians to begin with. True believers excluded, of course.

ThomasH writes:

This has so little to do with "government" information vs "private" information as to be changing the subject.

The government mis-information was the result of an egregious mistake in the enforcement of laws against fraud.

The issue in compulsory labeling is in working out what, if any, benefits accrue to consumers vs the costs to producers (that will be passed on to consumers) from such regulations.

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