Leadership Magazines | Page 28

LEGAL FAQs A Legal Q&A: Claims The legal department of the dōTERRA corporate office answers questions about drug claims. What is a drug claim? What agencies govern claims? What about my right to free speech under A drug claim is a statement that is intended to diagnose, treat, cure, or prevent any disease. There are two agencies that govern claims made about our products: the First Amendment? A quick way to clarify this is to consider whether the condition is something you would either take medicine for or see a doctor for. Helping a normal body function improve is not a drug claim. Picture a vertical line with “sick” on the left side and “well” on the right. ■ FDA (Food and Drug Administration) ■ FTC (Federal Trade Commission) Sick Well A good rule of thumb is to ask yourself if the statement takes a person from the sick side to the well side. If so, it is a drug claim. 28 dōTERRA ESSENTIAL LEADERSHIP I Spring 2014 The FDA governs the substantive claims permissible about nutritional supplements. In other words, what you can say. The FTC governs advertising or financial claims. Their focus is on whether the advertising is honest. In other words, is what you say true or is it misleading? You do have a right of free speech under the First Amendment. However, that right can be limited if you are involved in commercial speech. Commercial speech means you are making a statement in order to sell something as opposed to making the statement merely to educate or to comment. If you use a trademark (like dōTERRA or Deep Blue) in connection with your statement, it is a good indication that your purpose is to sell the trademarked product, and you will be held to the standard of the FDA. The FDA prohibits drug claims about any product except those who have obtained drug approval through the FDA— prescriptions or over the counter (OTC) medicines. You may have a claim that is true, and thus will satisfy the FTC, but if it is a drug claim about a nutritional supplement, the FDA will not allow you to make the claim regardless of whether it is true or not. The fact that the statement is true does not matter. The FDA looks to regulate drug claims, not false statements. Even if the statement is true, you cannot make it if it is intended to diagnose, treat, cure, or prevent any disease. The same is true for a personal testimony. If the personal testimony is a drug claim, the fact that it happened to you personally does not allow you to get around the rule. Are there things I can say about the product in relation to health? The Dietary Supplement Health and Education Act (DSHEA) of 1994 created a new category of claims titled structure/ function claims. Structure/function claims strengthen or benefit the structure or function of the body—a normal or non-sick body. For example: “Treats insomnia” is a drug claim because insomnia is a disease. “Helps you sleep better” is a structure/function claim because normal individuals can need better sleep. “Treats bronchitis” is a drug claim because bronchitis is a disease. “Helps maintain good breathing” is structure/function claim because normal individuals can still receive help to improve breathing even though they may not be sick. www.doterra.com 29