New York, NY—NY Attorney (NYAG) General Eric T. Schneiderman is persisting in his attacks on the dietary supplements industry, this time targeting marketers of devil's claw.

The NYAG sent cease-and-desist letters to 13 supplement makers on the grounds that their devil's claw supplements are misbranded. Once again, Schneiderman is basing his argument on the results of DNA barcoding, this time conducted by the New York Botanical Garden, which "revealed widespread substitution and adulteration," the letters stated. Supposedly, 16 U.S.-made devil's claw supplements from 14 different makers contained a cheaper, substitute plant either alone or in combination. A total of 18 supplements were tested.

The letter stated, "This analysis, however, is far from the first to draw attention to serious quality control and compliance problems in the supplement industry. Nor is it the first red flag indicating fraud, misidentification or other serious problems in the supply chain for Devil's Claw."

Letters were sent to:

• Nutraceutical International Corporation (Solaray [sic]);
• Alternative Remedies Health & Herbs;
• The Kroger Co., as parent of Vitacost.com;
• FoodScience Corporation (Food Science of Vermont & DaVinci Labs);
• Biopower Nutrition;
• Thorne Research Inc.;
• NBTY, Inc. (Puritan’s Pride);
• Olympian Labs, Inc. (Prescribed Choice);
• Now Foods;
• Nature's Sunshine Products, Inc.;
• RHG & Company Inc. (Vital Nutrients);
• The Natural Healing Room & End Time Essentials; and
• Shine Supplements

The last company on the list, Shine Supplements, reportedly could not be located by the NYAG's and is not registered with the Secretary of State to do business in New York; therefore, no letter was mailed.

While Steve Mister, president and CEO of the Council for Responsible Nutrition agrees that “Supply chain integrity is of the utmost importance to the dietary supplement industry," he believes that the companies receiving letters should be allowed to "defend their methods of ingredient testing and to justify their use of particular species of botanicals before being declared to be misbranded or adulterated by the New York Attorney General."

Mister added, "As we have seen before, investigations by the New York Attorney General’s office are rarely as clear-cut as they might seem.”

Meanwhile, the American Botanical Council (ABC) makes the point that the NYAG is splitting hairs in a sense. While the NYAG felt the results should have revealed 100% Harpagophytum procumbens, some products included Harpagophytum zeyheri, "a slightly different form of devil’s claw, i.e., a different, but very closely related species. In effect, they are like two siblings."

“Both species of devil’s claw have a similar chemical profile,” said Thomas Brendler, a medicinal plant expert and editor of the African Herbal Pharmacopeia. “While both species differ marginally in shape and chemical composition, both are considered equally effective.” In fact, the two species are listed as interchangeable for medicinal purposes, according to several government-recognized medicine evaluation bodies and pharmacopeias. 

Mark Blumenthal, CEO of ABC stated, that, "This may be a hair-splitting botanical distinction, but it certainly is not a legal or regulatory one, especially since authoritative sources recognize both species as being ‘devil’s claw.’”

This news builds on previous activity from the NYAG. In February of this year, Schneiderman used DNA barcoding results as justification for asking four major retailers—GNC, Walmart, Target, and Walgreens—to stop selling certain herbal supplements.

This resulted in an agreement with GNC to implement DNA testing into its process. He also organized a group of AGs from other states to start a probe into the supplements industry.

Several of the issues surfacing in these investigations have yet to be addressed by the NYAG. 

Published in WholeFoods Magazine November 2015, online September 10, 2015