Submitted to law reviews and presently under consideration. A public preprint link will be added if and when the manuscript is posted to a repository.
Expanded into a published book
This article developed into On the Failure of the Congress and the Federal Trade Commission, published in paperback and Kindle in October 2026. The book extends the inquiry across regulatory history, scientific evidence, enforcement, and corporate accountability.
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Abstract
The multi-billion-dollar dietary supplement market in the United States operates under a distinctive statutory architecture created by the Dietary Supplement Health and Education Act of 1994 (DSHEA). That statute classifies most supplements as a subcategory of food rather than as drugs, thereby relieving manufacturers of the premarket proof-of-safety-and-efficacy obligations that govern pharmaceuticals. The result is a marketplace in which products associated with health improvement may reach consumers without FDA preapproval, while the Federal Trade Commission polices deceptive advertising largely after dissemination.
This Article argues that the principal institutional failure is legislative design rather than pure administrative abdication. Congress established a permissive baseline that makes ambiguous, emotionally powerful health marketing commercially rational. The FTC retains meaningful authority over false and unsubstantiated claims and has brought numerous enforcement actions, yet post-market civil remedies cannot fully compensate for a statutory regime that permits widespread commercial dissemination before public evaluation of the underlying evidence.
Drawing on scientific literature, enforcement records, and institutional analysis, the Article proposes a tiered reform agenda centered on product registration, product-specific substantiation, net-impression standards, influencer accountability, strengthened remedies against repeat offenders, and clearer FDA stop-sale and recall authority.
Keywords
Dietary supplements · DSHEA · Food and Drug Administration · Federal Trade Commission · Deceptive advertising · Health claims · Consumer protection · Food and drug law