You Must Have a Reasonable Basis for All of Your Advertising Claims
When you prepare your ads, you should be aware of the underlying legal requirement of advertising substantiation. This means that you need to have a reasonable basis for your advertising claims before they are disseminated.
As a first step, you should thoroughly familiarize yourself with the FTC Policy Statement Regarding Advertising Substantiation (Appended to Thompson Medical Co., 104 F.T.C. 648, 839 (1984), aff’d, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086 (1987).)
This is true whether you're an advertiser or an advertising agency. Moreover, it's true if the product you advertise is food (e.g., health claims), cosmetics, drugs (e.g., doctor recommended claims), or virtually any other product or service. If your product is regulated by the Food and Drug Administration (FDA), you ought to also familiarize yourself with that agency's rules concerning advertising.
The Main Point
The main point is that you need advertising substantiatiation for the claims in your advertisements (utilizing expert testimony, extrinsic evidence, tests, studies, etc.). And this is so whether the type of claim that you're making - or plan to make - is express or implied. Yes, you should be aware of what your advertisement may imply. Accordingly, you should review your ads carefully - preferably with an attorney who has expertise in this area - and be sure that you can back up your ad claims.
However, learning the policy of the Federal Trade Commission, while important, is simply not enough. As an advertiser - or advertising agency - you should have an ongoing advertising substantiation program. Optimally, this program should include regular discussions with a law firm that has attorneys specializing in advertising law. And, it should include keeping pace with the many FTC decisions and rulings, NAD/NARB self-regulatory rulings, court decisions, and other important developments. The reference service, Advertising Compliance Service already does exactly that - and has been doing so for all of its 26-year history. This web page provides brief summaries of several recent articles that have appeared in Advertising Compliance Service and explored this critical advertising substantiation topic, specifically in this publication's Tab #5, Substantiation:
(Tab #5, Substantiation, Article #125):
- "FTC Targets Claims For Pill Advertised To Make Kids Taller."
This article describes an FTC case where a business and its owner marketed purported height-enhancing pills for kids and young adults. That business and owner recently agreed to pay $375,000 to settle charges that their ad claims were deceptive. FTC charged these defendants with making false and unsubstantiated claims for HeightMax, as well as for two other supplements, Liposan Ultra Chitosan Fat Blocker and Osteo-Vite.
(Tab #5, Substantiation, Article #124):
- "Spanish-Language Weight-loss Claims Are False And Unsubstantiated: FTC"
This article describes an FTC case where the Commission charged the sellers of the "Centro Natural de Salud Obesity Treatment" with making false and unsubstantiated claims that their product causes rapid, substantial and permanent weight loss. The "treatment" consists of three different pills, taken with breakfast, lunch and dinner, and a bar of "special soap" to "reduce dress sizes."
(Tab #5, Substantiation, Article #123):
- "Court Orders Defendants To Pay Up To $87 Million In Bracelet Case"
This article describes an FTC case where a federal district court ruled in FTC's favor in its case against the marketers of the Q-Ray ionized bracelet following a bench trial earlier in the summer. On September 8, 2006, the federal district court found that advertising by a company official and his companies was false and misleading in claiming that the bracelet provides immediate, significant and/or complete pain relief, and that scientific tests proved that it relieves pain.
(Tab #5, Substantiation, Article #122):
- "Large Weight-loss Marketers Agree To Pay $3 Million"
This article describes an FTC case where sellers making "questionable" weight-loss and fat-loss claims to market skin gels and diet supplements agreed to pay $3 million to settle FTC charges. This settlement bars (1) future unsubstantiated claims, and (2) the marketers from misrepresenting studies or endorsements.
(Tab #5, Substantiation, Article #121):
- "Can You Prove It?" By Stephen R. Bergerson
[Note: Here's a brief excerpt from that article:]
"The Federal Trade Commission - known to some as the national nanny of advertising - enforces Section 5 of the Federal Trade Commission Act, which prohibits "unfair or deceptive acts and practices in commerce."
THE DOCTRINE OF SUBSTANTIATION
When creating the Federal Trade Commission, Congress gave the agency the power to define both "unfair" and "deceptive." The most far-reaching concept to emerge from FTC's effort to do that is its Doctrine of Substantiation.
The doctrine of substantiation emerged in 1971, when FTC instituted a program that allowed it to require advertisers to submit documentation to support advertising claims.
(Tab #5, Substantiation, Article #120):
- "Dietary Supplement Maker Settles FTC Charges"
This article describes an FTC case where an operation had marketed dietary supplements that were sold at Whole Foods Market, GNC, the Vitamin Shoppe and on the Internet. Garden of Life, Inc. - a dietary supplement company - and its founder and owner, Jordan S. Rubin, settled FTC charges that they made deceptive ad claims about their supplements.
FTC charged that this dietary supplement marketer made unsubstantiated claims that their supplements treated or cured ailments ranging from colds to cancer - and also made false claims of clinical proof.
NOTE: Consent agreements are for settlement purposes only and do not constitute an admission by the defendant of a law violation. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of $11,000.
Advertising Substantiation Program - Paper
FTC's Ad Substantiation Program - Abstract
Advertising and the Law
Dietary Supplement Health and Education Act (DSHEA) of 1994
Guides for Use of Environmental Marketing Claims
Linking to the Advertising Law Resource Center Web site:
You are welcome and encouraged to link from your Web site to the Advertising Law Resource Center Web site. To link to this specific page, feel free to use your own accurate description or simply copy the following code:
<a href="http://www.lawpublish.com/substantiation.html">Advertising Substantiation</a> - Discussion.
JLCom Publishing Co., LLC is the publisher of Advertising Compliance Service. For over 30 years, Advertising Compliance Service has been the authoritative and comprehensive source of information for advertising law practitioners, advertisers and advertising agencies -- and their attorneys. In-house counsel and outside counsel alike routinely rely on Advertising Compliance Service. One of the 27 advertising law-related topics regularly covered by this newsletter/reference service focuses on laws, rules and cases pertaining to substantiation.
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