WASHINGTON, DC — Recent debates about the Dietary Supplement Safety Act of 2010 highlighted the idea that supplement retailers could be held liable in the event of litigation. Although that legislation was abandoned, many club owners still wonder how much liability they face if they sell supplements in their facilities.
The liability insurance that club owners purchase to cover accidents on their property doesn't cover supplement exposure, says Jennifer Urmston Lowe of Sports & Fitness Insurance Corp., Lexington, SC.
“Most general liability policies specifically exclude the sale of nutritional supplements and vitamins,” Urmston says.
To obtain liability coverage, owners can ask to be named as an additional insured on the policy of the supplement distributor and/or manufacturer, which some operators choose to do, often at no cost.
Another option is to purchase a separate products liability policy to cover the sale of supplements, she says, but those policies often are expensive, so few club owners choose this option.
To protect themselves from potential liability, club owners should sell only prepackaged supplements, says Cheryl Meyers, underwriting manager for K&K Insurance Group Inc., Fort Wayne, IN.
By selling prepackaged supplements, a club is more likely to be considered a seller and not a manufacturer if a product liability lawsuit is filed, says Lance C. Brenn, claims litigation analyst for K&K Insurance Group.
“Provided the club is not manufacturing, revising, mixing or producing a product, and not rendering ‘professional services,’ then coverage would be applicable and a defense given,” Brenn says. “In the event of litigation, the club would most likely be a defendant in a products liability type action and be considered in the ‘chain of commerce.’ If the product was somehow defective or faulty, then liability should fall on the manufacturer.”
However, if employees recommend supplements to members, a club can be more at risk in the event of a liability suit, says Donald Ornelas Jr., attorney at law for Agajanian, McFall, Weiss, Tetreault & Crist LLP of Los Angeles. Such was the case in the 1999 lawsuit filed against Crunch Fitness and a personal trainer who recommended an ephedra-containing supplement to a woman who later died because of interactions between the supplement and her prescription medication.
Fabio Comana, exercise physiologist for the American Council on Exercise, says, “It's a very slippery slope when you give a supplement recommendation. In Ohio, for instance, they have very strict rules about making dietary recommendations, including supplements, and trainers need to be aware of what the laws are.”
If clients ask about a supplement, Comana recommends that personal trainers provide them with information on potential side effects before telling them to make their own informed decisions about choosing a product.
Jasmine Jafferali, health and well-being director for Proactive Partners, Chicago, says club owners should educate all staff about promoting rather than recommending supplements, then have staff members sign an agreement saying they won't make specialized supplement recommendations to clients. This can offer some protection for club owners and staff, she says.
“Fully educate staff about promoting versus recommending supplements,” Jafferali says. “I'd hire a dietician to give an educational seminar to trainers, fitness staff and pro shop people and have them sign an agreement saying we'll not make specialized recommendations to clients when it comes to supplements, so there is some sort of protection for club owners and staff.”