The New York Times recently published a sprawling, six-page feature story that signals a new era in retailer liability.
The piece details the death of Army Private Michael Lee Sparling, who collapsed and suffered cardiac arrest just 10 minutes into a routine training run. According to a lawsuit filed by Private Sparling’s parents, he died because he took a recommended dose of the workout supplement Jack3d (pronounced “Jacked”) prior to exercise.
Jack3d is designed to provide its users with an energy boost while they work out – and does so partly via a stimulant known as dimethylamylamine (DMAA), which some health experts and regulators say affects the body in ways similar to amphetamines. The allegedly fatal dose was purchased from a General Nutrition Center (GNC) store located on Private Sparling’s base at Fort Bliss, Texas. As such, the leading supplement retailer now finds itself a co-defendant in the Sparling Family’s wrongful-death suit against Jack3d manufacturer USPlabs. That’s despite the fact that federal regulations place responsibility for product safety on manufacturers, not retailers who rely on manufacturers’ good faith and guarantees.
Of course, if the Sparling Family and growing chorus of industry critics have their way, that may not remain the case for much longer – at least where nutritional supplements are concerned.
In many ways, GNC makes for the perfect test case for such an expansion of product liability regulation. First, it is the face of a supplement industry long the target of activists who argue that its products contain ingredients that must be more tightly regulated than those found in traditional foods and beverages. Second, it could be said that GNC actually is the industry. It hauled in more than $2.4 billion in revenues last year and dominates the market with more than 8,100 retail locations around the world.
Third, and perhaps most important, GNC’s status as an industry leader means it is held to a higher product safety standard. In this context, it is a victim of its own brand success. Fairly or unfairly, consumers view GNC as a stamp of approval. With so many questions swirling around supplement safety – and so many different products available online or from other relatively anonymous sources – consumers believe the retailer is a trustworthy judge of product safety. Simply put, they think that if it’s on GNC’s shelves, it must be OK.
That implicit understanding between GNC and its consumers is a pillar of the company’s brand. As such, it needs to do more than issue a statement about the lack of scientific evidence that DMAA is dangerous. That, coupled with current limits on retailer liability, likely won’t be enough to win in court, let alone in the Court of Public Opinion.
GNC needs to aggressively communicate – in the both traditional and social media – the fact that all of its products are subject to strict reviews; that a physician board helps guide the development of new products; that it works with independent testers to certify that its products contain no ingredients banned by the World Anti-Doping Agency; and that it will continue to find ways to even further ensure that every product it sells is safe.
These messages need to serve as the centerpiece of a concerted litigation communications effort aimed containing the damage to its brand, consumer trust, and regulator relationships. Instead, they are buried on GNC’s website – far deeper than conspicuous offers listing Jack3d as a “hot buy.”
The company’s adversaries are leveraging this moment of increased attention to strengthen their case for imposing tougher rules on supplement retailers. As The New York Times piece amply demonstrates, they won’t have much difficulty finding sympathetic partners in high-profile media.
Right now, GNC’s “no comment” strategy is ceding control of the conversation – and if it continues to do so, a major courtroom defeat might be in the offing. That won’t only signal a new era in retailer liability; it could usher in an entirely new, and far more onerous, regulatory crackdown.
Gene Grabowski is an Executive Vice President at LEVICK and a contributing author to LEVICK Daily.