Stay ADvised: Uniform Recycling Standards + Broad Biomarker Benefits Rejected
In This Issue:
- Bipartisan Bill Would Create National Standards for Recycled Content Claims
- NAD Rejects Broad Tru Niagen Health Claims; Appeal to NARB Pending
- NAD Upholds Biomarker Detection and "First-of-Its-Kind" Claims for At-Home Cancer Test
Bipartisan Bill Would Create National Standards for Recycled Content Claims
Congress recently introduced a bipartisan bill that could significantly reshape the landscape for recycled content marketing claims and related greenwashing risk. Representative Nick Langworthy (R-N.Y.) introduced the Recycled Materials Attribution Act (RMAA), H.R. 7502, which would establish federal standards governing recycling and recycled content claims in advertising, marketing, and product labeling. The bill would also direct the Federal Trade Commission (FTC) to update its Green Guides to align with the legislation.
The proposed legislation is aimed squarely at the growing patchwork of state standards that currently governs recycled content and recyclability claims. For national brands and manufacturers, that fragmentation has caused increased compliance complexity and litigation exposure, particularly as plaintiffs continue to target environmental claims in consumer class actions. The RMAA would prohibit products' misleading recycled content claims and establish a third-party certification system for substantiating claims such as "made with 30% recycled materials."
A particularly significant—and likely controversial—aspect of the bill is its express recognition of mass balance accounting as a permissible substantiation methodology. Under this approach, manufacturers may attribute recycled inputs across a broader manufacturing stream or product line rather than tracing recycled content to a specific unit sold. In practice, this could allow a company to advertise recycled content percentages at the product level even if an individual item does not independently contain that percentage of recycled material. Supporters argue this framework reflects the realities of modern recycling systems and advanced recycling technologies; critics contend it risks enabling consumer confusion and greenwashing if not paired with meaningful safeguards and disclosures.
For advertisers, the bill is notable not only for what it would require, but also for where enforcement risk would shift. By creating a federal baseline and directing the FTC to revise the Green Guides accordingly, the RMAA could materially influence how courts, regulators, and self-regulatory bodies assess recycled content claims going forward.
Key Takeaway. For brands making recycled content claims, this bill is one to watch. If enacted, it could materially reduce the burden of navigating conflicting state standards, while at the same time sharpen scrutiny of substantiation—particularly for claims based on mass balance accounting. The practical result may be fewer state-by-state compliance headaches, but potentially more focused risk from federal regulators, state attorneys general, and private plaintiffs challenging how recycled content percentages are calculated and conveyed.
NAD Rejects Broad Tru Niagen Health Claims; Appeal to NARB Pending
In a challenge brought by Reus Research LLC, the National Advertising Division (NAD) largely sided with the challenger in reviewing health and performance claims for Niagen Bioscience's Tru Niagen nicotinamide riboside (NR) dietary supplement. Reus argued that Niagen overstated the consumer-facing health benefits associated with increased levels of nicotinamide adenine dinucleotide in oxidized form (NAD+), including claims relating to heart health, brain health, immune support, metabolism, muscle performance, and healthy aging. NAD ultimately concluded that, while the record supported the proposition that NR can increase NAD+ levels under certain conditions, the evidence did not substantiate many of the broader health and performance benefits reasonably conveyed by the advertising.
NAD first recognized that Niagen had submitted extensive evidence showing that NR can increase NAD+ levels under certain tested conditions. But critically, NAD drew a sharp distinction between evidence demonstrating biochemical activity and evidence substantiating the consumer-facing health benefits reasonably conveyed by the advertising. In NAD's view, evidence that a supplement raises a biomarker or affects a cellular pathway does not, without more, establish that consumers will experience the broader functional outcomes suggested by the advertising.
The decision is especially notable for its treatment of so-called "cellular" claims. Niagen argued that phrases such as "supports cellular energy," "supports brain cell energy," and similar statements should be viewed as limited structure/function claims focused only on intracellular processes. NAD rejected any categorical rule and instead emphasized that such claims are highly context dependent. Where cellular phrasing appeared alongside clinical proof language, organ-level framing, scientific references, or consumer testimonials describing noticeable benefits, NAD concluded that reasonable consumers could take away a broader message of real-world health improvement. In those circumstances, mechanistic plausibility alone was not enough.
NAD also pushed back on Niagen's effort to analogize NR to essential vitamins. The decision explains that NR is not treated as an essential nutrient with an established deficiency-disease model or recognized required intake level. As a result, generalized literature about NAD+ biology and nutrient pathways was not sufficient to substantiate the broader heart, brain, immune, aging, and performance messages reasonably conveyed in context.
Applying those principles, NAD recommended that Niagen discontinue or modify numerous claims, including express statements such as "supports heart health," "supports brain health," and "support immune health," as well as several claims framed in cellular language where the surrounding context conveyed broader consumer-perceptible benefits.
Key Takeaway. This decision reinforces NAD's continued focus on consumer takeaway over claim labels. Per NAD's decision, the substantiation must fit the message consumers are likely to receive—not just the advertiser's preferred scientific framing. Niagen has appealed the decision to the National Advertising Review Board (NARB).
NAD Upholds Biomarker Detection and "First-of-Its-Kind" Claims for At-Home Cancer Test
In a challenge brought by the National Advertising Division (NAD) itself, NAD reviewed claims made by Viome Life Sciences for its CancerDetect® Oral & Throat At-Home Test (CDOT Test), a saliva-based screening tool designed to detect biomarkers associated with early stage oral and throat cancers. The case focused on whether Viome could substantiate claims relating to biomarker detection, "first-of-its-kind" status, and comparative superiority over conventional oral exams.
As a threshold matter, NAD concluded that the advertising reasonably conveyed a strong message that the test could help ensure early detection of oral and throat cancer, even though the product in fact detects only biomarkers associated with those cancers rather than diagnosing cancer itself. Because NAD found that lay consumers may not distinguish between biomarker detection and actual diagnosis, it recommended that Viome clearly and conspicuously disclose, in close proximity to the claims, that the test does not itself diagnose oral or throat cancer.
On the core monadic claim, however, NAD largely sided with the advertiser. Viome principally relied on the Banavar study, the foundational validation study underlying the CDOT Test's biomarker-detection platform. This peer-reviewed study evaluated the ability of the test's saliva-based metatranscriptomic and machine-learning platform to identify human and microbial RNA biomarkers associated with early stage oral and throat cancers. The study analyzed saliva samples from individuals diagnosed with early stage oral and throat cancer as well as high-risk control populations to assess whether the test could reliably distinguish biomarker signatures associated with disease.
Although NAD acknowledged several limitations in the Banavar study—including a relatively low number of participants in certain at-risk subgroups, concentration of positive cases at a single Australian site, and the need for broader multi-site validation—NAD nevertheless concluded that Viome had a reasonable basis for claims that the test detects biomarkers associated with early stage oral and throat cancers. NAD pointed to the study's large sample size of high-risk individuals, the comprehensive human and microbial testing methodology, and the use of machine learning to identify relevant biomarker signatures in saliva samples.
NAD also upheld Viome's claim that the product is the "first at-home test of its kind" to detect biomarkers associated with early stage oral and throat cancer, as well as the accompanying description of the test as "revolutionary." Unlike prior cases where "first" claims were found too broad, NAD found no evidence of a competing at-home test in the U.S. market using comparable metatranscriptomic technology for this purpose. Because the record supported the "first" claim, NAD concluded that the "revolutionary" descriptor was also supported.
Where Viome ran into trouble was its comparative superiority claim that the test demonstrated "substantially higher sensitivity and specificity over conventional oral exam." NAD emphasized that quantified comparative superiority claims require very reliable, directly applicable support, and typically demand head-to-head evidence. Here, the advertiser relied on a meta-analysis of conventional oral exams that NAD found had significant methodological limitations, including heterogeneity across studies and possible overestimation of sensitivity and specificity. As a result, NAD recommended that Viome discontinue the superiority claim.
Key Takeaway. This decision is a useful reminder that substantiation standards rise and fall with the claim. Monadic biomarker detection claims and appropriately supported "first-of-its-kind" claims may survive even where the underlying evidence has limitations. By contrast, comparative superiority and quantified performance claims face a much higher bar, particularly in the medical and diagnostic context where NAD expects highly reliable and directly comparable evidence.