Department of Health and Human Services
Public Health Service
January 28, 2002
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Adrian V. Mathews
Independent Distributor, ID #505-140
Legacy for Life, Inc
15033 SE McLoughlin Blvd #346 Portland, OR 97267
Ref. No. CL-02-HFS-810-08
Dear Ms. Mathews:
This is to advise you that the Food and Drug Administration (FDA) has reviewed your website at the Internet address http://iwr.com/biochoice and has determined that the products "BioChoice® Immune Support" and "BioChoice® Immune 26" being offered are promoted for conditions that cause the products to be drugs under section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act (the Act) [21 USC 321(g)(1)]. The therapeutic claims on your website establish that the products are drugs because they are intended for use in the cure, mitigation, treatment, or prevention of disease. The continued marketing of these products with these claims violates the Act and may subject you or the products to regulatory action without further notice.
Examples of some of the claims observed on your website include:
"Why did Dr Ken Alibek (the Russian scientist who developed the most deadly form of ANTHRAX) say that the only way to develop protection from Biological Weapons is for us to Boost our nonspecific immune system? … By taking BioChoice your immune system is provided with Immune co-factors that provide information to our bodies that may help it defend itself, as Nature intended, against pathogens that it may never have seen before."
"BioChoice® provides safe and natural protection against over 26 infectious bacteria that you are exposed to every day, such as: E.Coli, Staphylococcus, Salmonella [sic], Pneumonia, Streptococcus, Influenza." "BioChoice® helps the body protect itself from the devastating effects of over 80 autoimmune diseases, such as: Lupus, Arthritis, Fibromyalgia, Diabetes, Psoriasis, Chronic Fatigue Syndrome."
Furthermore, FDA has no information that your products are generally recognized as safe and effective for the above referenced conditions and therefore, the products may also be "new drugs" under section 201(p) of the Act [21 USC 321(p)]. New drugs may not be legally marketed in the US without prior approval from FDA as described in section 505(a) of the Act [21 USC 355(a)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.
FDA is aware that Internet distributors may not know that the products they offer are regulated as drugs or that these drugs are not in compliance with the law. Many of these products may be legally marketed as dietary supplements or as cosmetics if therapeutic claims are removed from the promotional materials and the products otherwise comply with all applicable provisions of the Act and FDA regulations.
Under the Act, as amended by the Dietary Supplement Health and Education Act (DSHEA), dietary supplements may be legally marketed with truthful and non-misleading claims to affect the structure or function of the body (structure/function claims), if certain conditions are met. However, claims that dietary supplements are intended to prevent, diagnose, mitigate, treat, or cure disease (disease claims), excepting health claims authorized for use by FDA, cause the products to be drugs. The intended use of a product may be established through product labels and labeling, catalogs, brochures, audio and videotapes, Internet sites, or other circumstances surrounding the distribution of the product. FDA has published a final rule intended to clarify the distinction between structure/function claims and disease claims. This document is available on the Internet at http://vm.cfsan.fda.gov/~lrd/fr000106.html (codified at 21 CFR 101.93(g)).
In addition, only products that are intended for ingestion may be lawfully marketed as dietary supplements. Topical products and products intended to enter into the body directly through the skin or mucosal tissues, such as transdermal or sublingual products, are not dietary supplements. For these products, both disease and structure/function claims may cause them to be new drugs.
Certain over-the-counter drugs are not new drugs and may be legally marketed without prior approval from FDA. Additional information is available in Title 21 of the Code of Federal Regulations (21 CFR) Parts 310 and 330-358, which contain FDA's regulations on over-the-counter drugs.
This letter is not intended to be an all-inclusive review of your website and products your firm may market. It is your responsibility to ensure that all products marketed by your firm are in compliance with the Act and its implementing regulations.
If you need additional information or have questions concerning any products distributed through your website, please contact FDA. You may reach FDA electronically (e-mail) at APaeng@CFSAN.FDA.GOV, or you may respond in writing to Andrew H. Paeng, Compliance Officer, Food and Drug Administration, Division of Compliance and Enforcement, ONPLDS, 200 C St SW, Washington, DC 20204. If you have any questions concerning any issue in this letter, please contact Mr Paeng at 301-436-2375 for Food Safety and Applied Nutrition.
John B. Foret
Division of Compliance and Enforcement
Office of Nutritional Products, Labeling and Dietary Supplements
Center for Food Safety and Applied Nutrition
This page was posted on May 4, 2006.