The dispute between the Federal Trade Commission (FTC) and German company Bayer Corp. over claims made concerning Bayer’s probiotic supplement Phillips’ Colon Health has taken one more step towards full-fledged litigation as a New Jersey federal court has order both sides to file briefs and enter into court-mandated mediation as a final step before formally entering the court system.

The FTC claims that Bayer failed to demonstrate any sort of “competent and reliable scientific evidence” to substantiate its claims that the supplement would prevent unwanted gastrointestinal symptoms such as bloating, gas, diarrhea and constipation.

The issues at stake go far beyond Bayer’s product.  Currently supplements such as Phillips’ Colon Health, which are made using ingredients defined as “natural” under U.S. law do not have to show the same level of scientific and medical research as pharmaceuticals, including human trials.  The FTC seems to be moving towards requiring this, with lawsuits such as this used to establish precedent.

Representatives of the supplement industry believe this is an overreach by the FTC, arguing that if the Commission believes this level of testing is necessary, it should follow the usual procedure and propose it formally and allow the usual governmental organs to work through the concept.  Instead, they believe the FTC is attempting a “backdoor” litigation strategy to achieve its goals without oversight.

The current dispute stems from a previous dispute in 2007, which ended in a consent decree against Bayer, which the FTC claims Bayer has since violated.