Advertising Substantiation

You Must Have a Reasonable Basis for All of Your Advertising Claims

Advertising lawyers, including in-house counsel and outside counsel, help their clients comply with the requirements of advertising substantiation.

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.

Past Articles

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:

Issue #608
(Tab #5, Substantiation, Article #125):

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.



Additional Information

Advertising Substantiation
For additional information about advertising substantiation, please visit our sister site at

Advertising Substantiation Program - Paper
Paper examines effects of FTC's Advertising Substantiation Program.

FTC's Ad Substantiation Program - Abstract
FTC's Ad Substantiation Program - Abstract of Article.

Advertising and the Law
Guide to Selected Government Information Available at WIU's Government Publications Library, including advertising substantiation.

Dietary Supplement Health and Education Act (DSHEA) of 1994
Includes discussion of advertising substantiation aspects of the DSHEA.

Guides for Use of Environmental Marketing Claims
Guides include Interpretation and substantiation of environmental marketing claims. (From the 'Lectric Law Library's stacks.)

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="">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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