Q&A with Lauren Aronson, Partner, Amin Wasserman Gurnani
Q: Let's start with a couple of personal professional questions. Tell me about your journey into the legal world and the nexus between your law experience and the dietary supplement space. How did you get started?
Lauren: My first two years after law school, I was at a large law firm doing mass tort class actions involving large pharma companies – and a lot of document review. However, at that time I also worked on a project involving the FDA’s review of prescription drug advertisements by the office formerly known as DDMAC, from a First Amendment perspective. I found that really interesting. In 2008, I started doing advertising law full time. Since then, I've worked on a broad range of product categories, from homeopathics to telecom to grass seed to toilet paper to dietary supplements. My focus has been on advertising and marketing, which cuts across product categories.
Q: What are some of the common issues that differing industries face with regard to advertising? Is there some commonality across disparate industries?
Lauren: Absolutely. Every company is in business to make money and wants to be cutting-edge, provocative, and innovative, whether the company is selling mobile telephone service or melatonin. At the end of the day, businesses want people to buy their products or services and need consumers to notice them in a crowded marketplace. Companies across product categories are pushing into social media and are trying to reach audiences on TikTok, Instagram, Facebook, etc. As lawyers, we help businesses navigate the unique business risks of marketing in social media. Not all marketers fully appreciate the difference between using social media as an individual versus running a brand page as a marketer and thus may not understand what they can and cannot do. We help them figure out what’s a reasonable risk to take while reducing exposure from the FTC and other regulators as well as class action attorneys and competitors.
Q: It’s fascinating because I imagine there are instances where you provide counsel, especially around internet advertising, and they think you're being overly cautious, so they don’t take your advice.
Lauren: Marketers often think legal is being too cautious. Then something happens, and either they get their hands slapped and come back saying they should have listened, or a competitor does, and they want to avoid a similar fate. We work with them to still stay relevant and creative while also taking smart risks.
Q: Tell me about the challenges of working in dietary supplements as a vertical. Is there something unique about it?
Lauren: One big difference is that many supplement companies are smaller companies and thus, they may not be as experienced with the regulatory landscape. Smaller companies might not be familiar with the amount and quality of science needed to support claims or the legal risks. The companies may lean on one in-house lawyer with wide responsibilities, and also, legal budgets are different. When advising smaller clients, risk analysis is calibrated to the company's likelihood of attracting regulatory or competitive attention. You have to counsel them away from unnecessary risks while making sure they understand the importance of proper science and legal compliance.
Q: With your extensive experience, have you noticed changes in the supplement space? Have regulations changed dramatically, or is it still the same as when you started?
Lauren: There’s been an evolution. The FDA manages labeling, while the FTC is concerned with everything else. The FTC doesn’t care if it’s a structure-function claim or a disease claim; the claims have to be substantiated with competent and reliable scientific evidence. Almost two years ago, the FTC issued its updated Health Products Compliance Guidance, replacing the Dietary Supplement Guide. For those of us in the space for a while, it was a bit of a nothing burger because it compiled guidance from various settlement agreements and press releases into one document. The biggest change has been the FTC's views on social media advertising, influencers, and reviews. This is an ongoing issue because the FTC is often a step behind the evolving landscape. It requires trust between the lawyer and the client to navigate these uncertainties.
Q: What about the notices issued in April 2023?
Lauren: Those notices stemmed from the Supreme Court’s 2021 decision holding that the FTC did not have the ability to seek equitable monetary relief under section 13(b) of the FTC Act. As a result of that decision, the FTC started sending letters to put companies on notice that certain behaviors violate the FTC Act, hoping that they will be able to obtain monetary penalties under section 5(m) of the FTC Act in cases where a company has engaged in conduct that is arguably covered by a prior litigated administrative decision. This was more of a procedural gambit than a change in enforcement intensity. Because the FTC has historically relied on settlement orders, the FTC found itself digging deep into old, litigated orders from the 1970s and earlier because they didn’t have any recent litigated administrative cases. This means that the cases may not give adequate notice of violations of the FTC Act, which is required under section 5(m), so the FTC’s actual ability to rely on these notices to obtain monetary relief is unclear.
Q: What do you find fun about your work?
Lauren: I enjoy the constant evolution and creativity in the field. Law can be creative, but I love the creativity that marketers and businesses bring. Even though we sometimes have to reign in their ideas, I appreciate their different ways of engaging people and the clever taglines and product development.
Q: You often help clients by making their creative ideas legally compliant. How do you balance this?
Lauren: My job isn’t to rain on marketers’ parades but to help them find creative ideas that take into account legal risk. The goal is to sell products with minimal business interruption, so we help them achieve that.
Q: What are your thoughts on DSHEA? Is it outdated or still valuable?
Lauren: To comply with DSHEA, we’ve learned to modify claims in ways that make sense only to lawyers to avoid claiming that a supplement diagnoses, mitigates, cures, treats, or prevents a disease. Compliance requirements lead to limitations to claims that don't serve a practical purpose, yet there is growing tension between complying with DSHEA and also talking accurately about the science in marketing, consistent with FTC requirements for competent and reliable scientific evidence. In that sense, I am not sure DSHEA accomplishes what it is supposed to.
Q: Do advertisers have to push boundaries to get noticed in the crowded social media space? What legal ramifications does this have?
Lauren: Advertisers need to be provocative and loud without crossing legal lines. We help clients be as creative as possible while reducing legal risks. This can be challenging when marketers may see their competitors violate the law and disregard FTC guidance, seemingly without consequence. It’s a balance, but you don’t have to be non-compliant to be seen.
Q: What advice would you give a new company entering the space with big dreams and no experience with regulators?
Lauren: Get a lawyer. It’s crucial because you need to know what your product does, have the science to back it up, and understand the claims you're making. Make sure your suppliers are reliable. Being smart and careful at the beginning makes everything easier. Fixing things later is much more expensive.