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Proposed Dietary Supplement Safety Act Could Hold Health Club Operators Liable for Safety of Supplements

WASHINGTON, DC — Health club owners could have new reasons to be wary of selling sports supplements if proposed legislation recently introduced by Sen. John McCain becomes law.

The new bill, called the Dietary Supplement Safety Act of 2010, could hold retailers and health club operators responsible for the safety of the sports supplements they sell. It was designed to give the U.S. Food and Drug Administration (FDA) additional powers over supplement retailers and suppliers, and update the existing Dietary Supplement Health and Education Act (DSHEA) of 1994.

Some health club operators shied away from selling sports supplements after a 1999 New York lawsuit was filed against a personal trainer and the Crunch club that employed her. The lawsuit followed a woman's death that was possibly linked to an ephedra-based supplement that the trainer allegedly recommended to her.

Although the preliminary version of the bill does not specify the type of liability club operators and retailers would be held to, it would require extra paperwork if passed, says Jason Phillips, associate editor of the Nutrition Business Journal.

“Any business that sells supplements will need to obtain some sort of certificate of compliance from the supplement manufacturer, which the manufacturer and retailer will be required to update annually,” Phillips says, based on his interpretation of the bill. “The certificate will prove that the company is properly registered and its products are certified as containing compliant ingredients with the Health and Human Services secretary.”

The decision to continue selling supplements if the bill passes depends on club operators' comfort level with the products they sell, says Ian McGriff, director of fitness, Tipton Lakes Athletic Club, Columbus, IN. McGriff says he believes in the brand of supplements that his club sells because they are independently tested by a third party. He also has never heard of safety issues with this brand of supplements.

“Other brands, however, I would not be willing to sell if I personally could be held responsible as I have no idea what other companies' product manufacturing concerns are,” he says.

McGriff adds that the pending McCain bill could help members feel more confident about the supplements they purchase at clubs.

“The opportunity to help individuals achieve greater results, and also create an additional revenue stream, is important to my business,” McGriff says. “I also believe that by making a need for certification public to our client and member base, that we would be doing ourselves and our clients a service by assuring them that we are providing them with a quality product that they can trust.”

Many club insurance policies do not cover claims arising from supplement sales, says Ken Reinig, senior vice president of Association Insurance Group, which specializes in insurance for the fitness industry.

Reinig says under current laws, club owners can protect themselves from liability by being added as an additional insured under the manufacturer's product liability insurance. Most supplement manufacturers have a vendor's liability endorsement that covers club owners as a distributor of their product, he says.

Suppliers in the $25.2 billion U.S. supplement industry fear the new proposed requirements could cause significant losses in sales. The Nutrition Business Journal estimates that U.S. consumers spent $2.7 billion on sports supplements in 2008, and that the sports supplement category could see a sales retraction of at least 30 percent if the bill resulted in one or more popular ingredients being removed from the market.

In its current form, the bill also requires changes in adverse events reporting and would remove the grandfather clause for ingredients introduced before Oct. 15, 1994.

Industry trade groups say existing laws need to be more stringently upheld.

“What we cannot support is wholesale changes to a regulatory structure that is working and could work better if the measures we have supported were adopted,” John Gay, executive director and CEO of the Natural Products Association, said in a statement. “A series of new laws for criminals to ignore is not the answer.”

The United States Anti-Doping Agency voiced support for the bill. The bill is similar to that organization's Supplement Safety Now campaign, which advocates limiting sales of steroids in dietary supplements. The campaign garnered the support of all of the major league sports organizations and the U.S. Olympic Committee.

The American College of Sports Medicine also expressed support for McCain's bill.

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