Oregon AG Postpones “Harmful,” “Unnecessary” Rulemaking

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Salem, OR—The Oregon Attorney General’s office has postponed a rulemaking that would allow and encourage baseless lawsuits in Oregon against dietary supplements makers. The Proposed Rule would allow private plaintiffs to initiate a lawsuit by alleging, without scientific evaluation or public interest analysis, that a company making a health benefit claim does not have support for that claim.

A press release from the American Herbal Products Association (AHPA) notes that this runs counter to the laws of other U.S. jurisdictions and recognized public health considerations, as well as the principle that only regulators can bring a lawsuit based on an alleged lack of substantiation for advertising claims.

AHPA and the Council for Responsible Nutrition (CRN) filed a joint comment in which they explained their position: “It is difficult to overstate the immensely harmful effect that the Proposed Rule’s private right of action would have on Oregon businesses. The Proposed Rule would have the unintended and undesired consequence of creating a private right of action that opportunistic plaintiffs’ lawyers could abuse to extort Oregon businesses with the threat or initiation of costly and uncertain litigation challenging their substantiation for health benefit claims.”

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The Natural Product Association (NPA) wrote in a press release that the Proposed Rule is “duplicative of federal law and wastes limited resources during the COVID-19 public health crisis.” It also notes that the order requires retailers to compile “competent and reliable scientific evidence” that will confuse consumers.

CRN and AHPA requested an extension to the comment period, which was originally supposed to end April 2, to give businesses time to focus on it once the COVID-19 crisis passes. The DOJ originally denied that request, but CRN writes in a statement that their advocacy efforts got the period extended to April 10, and that the Attorney General has now agreed to further delay the rulemaking for at least six months. The AG issued an emergency rule focused on unlawful health claims associated with COVID-19 treatment or prevention.

Megan Olsen, VP and Associate General Counsel at CRN, said in a press statement: “CRN is pleased with the decision of the Oregon AG to postpone the rulemaking, as it would increase the burden on manufacturers and retailers in Oregon and decrease consumers’ access to information about potential health benefits of products. We share the DOJ’s concern for bad actors making false and fraudulent claims that take advantage of consumers especially during a public health crisis, but this regulation is not the answer.

“CRN has engaged in advocacy efforts to oppose this rulemaking since last September, as we are greatly concerned with the private right of action that would be created without amendments to this rule. Allowing private plaintiff’s attorneys the authority to bring baseless lawsuits simply by alleging that a company does not have support for a health benefit claim without proof that the claim is actually false will not only hurt business, but also duplicate powers the DOJ already possesses to protect consumers. If the rule is proposed again after the postponement, CRN will continue to aggressively oppose this rulemaking which harms Oregon consumers.”

Daniel Fabricant, Ph.D., President and CEO of NPA, said in NPA’s press release: “If the COVID-19 pandemic has taught us anything, it is that nutritional supplements, such as Vitamin C, that make health claims are an important element to supporting the healthy lifestyles of the American people. Oregon’s order depletes taxpayer resources and is unnecessary. If Oregon regulators believe there is an abundance of products making fraudulent health claims, then we are happy to work with them to protect consumers. Federal regulators already prevent companies from making false or misleading claims about a product.”

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