Public Health Service Food and Drug Administration
5100 Paint Branch Parkway
College Park, MD 20740
March 7, 2016
VIA OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED
Nathan Barrett, Member
Achieve Health, LLC
1636 Popps Ferry Road
Biloxi, MS 39532
Dear Mr. Barrett:
This letter concerns your product Achieve Energy, which is labeled and/or offered for sale as a dietary supplement. The ingredient list on your product labeling declares Acacia rigidula ext as a dietary ingredient. Acacia rigidula is also called, among other names, Vachelliarigidula, chaparro prieto, or blackbrush, and will be referred to in the rest of this letter as A. rigidula.
As an extract of an herb or other botanical, A. rigidula extract is a dietary ingredient under section 201(ff)(1)(F) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. § 321(ff)(1)(F)]. Further, as a dietary ingredient that was not marketed in the United States before October 15, 1994, A. rigidula extract is a “new dietary ingredient” under section 413(d) of the Act [21 U.S.C. § 350b(d)].
Under section 413 of the Act (21 U.S.C. 350b), a dietary supplement that contains a new dietary ingredient shall be deemed adulterated under section 402(f) of the Act [21 U.S.C. § 342(f)] unless it meets one of two requirements:
1.The dietary supplement contains only dietary ingredients that have been present in the food supply as an article used for food in a form in which the food has not been chemically altered; or
2.There is a history of use or other evidence of safety establishing that the dietary ingredient when used under the conditions recommended or suggested in the labeling of the dietary supplement will reasonably be expected to be safe and, at least 75 days before being introduced or delivered for introduction into interstate commerce, the manufacturer or distributor of the dietary ingredient or dietary supplement provides FDA with information, including any citation to published articles, which is the basis on which the manufacturer or distributor has concluded that a dietary supplement containing such dietary ingredient will reasonably be expected to be safe.
To the best of FDA’s knowledge, there is no information demonstrating that A. rigidula or its extract was lawfully marketed as a dietary ingredient in the United States before October 15, 1994, nor is there information demonstrating that this ingredient has been present in the food supply as an article used for human food in a form in which the food has not been chemically altered. In the absence of such information, A. rigidula extract is subject to the notification requirement in section 413(a)(2) of the Act [21 U.S.C. § 350b(a)(2)] and 21 CFR 190.6. Because the required notification has not been submitted, your product is adulterated under sections 402(f)(1)(B) and 413(a) of the Act [21 U.S.C. §§ 342(f)(1)(B) and 350b(a)].
Even if the required notification had been submitted, we know of no evidence that would establish that your product is not adulterated. In the absence of a history of use or other evidence of safety establishing that A. rigidula extract, when used under the conditions recommended or suggested in the labeling of your product, will reasonably be expected to be safe, Achieve Energy is adulterated under sections 402(f)(1)(B) and 413(a) of the Act [21 U.S.C. §§ 342(f)(1)(B) and 350b(a)] because it contains a new dietary ingredient for which there is inadequate information to provide reasonable assurance that such ingredient does not present a significant or unreasonable risk of illness or injury. Introduction of such product into interstate commerce is prohibited under section 301(a) and (v) of the Act [21 U.S.C. §§ 331(a) and (v)]. To the best of FDA’s knowledge, there is no history of use or other evidence of safety establishing that A. rigidula extract will reasonably be expected to be safe when used as a dietary ingredient.
We request that you take prompt action to correct the violations cited above, as well as any other violations associated with your Achieve Energy product or other dietary supplement products marketed by your firm, including any that contain A. rigidula or A. rigidula extract. We also remind you that the new dietary ingredient notification requirement applies to all dietary supplements that contain new dietary ingredients that have not been present in the food supply as articles used for food in a form in which the food has not been chemically altered. It is your responsibility to ensure that your firm complies with all requirements of federal law and FDA regulations.
Failure to immediately cease distribution of your product Achieve Energy and any other products you market that contain A. rigidula or A. rigidula extract could result in enforcement action by FDA without further notice. Sections 302 and 304 of the Act provide for seizure of violative products and injunction against the manufacturers and distributors of violative products [21 U.S.C. §§ 332 and 334].
We request that you advise us in writing, within 15 days of receipt of this letter, as to the specific steps that have been or will be taken to correct these violations, including any steps taken with respect to product currently in the marketplace. Your response should also include an explanation of each step taken to ensure that similar violations do not recur, as well as documentation to support your response. Your written reply should be directed to Marjorie Davis, United States Food and Drug Administration, Center for Food Safety and Applied Nutrition, 5100 Paint Branch Parkway, Office of Compliance (HFS-608), Division of Enforcement, College Park, Maryland 20740-3835. If you have any questions, please contact Ms. Davis at Marjorie.Davis@fda.hhs.gov.