Advertising Review Attorney
Navigate the FTC chaos.
As advertising review attorneys, our clients include marketers of nutraceuticals, skin care products, weight loss products, and a wide range of consumer products and services, and we routinely review and vet their advertising for compliance with federal and state law.
- Section 5 of the FTC Act declares unfair or deceptive acts or practices unlawful.
- Section 12 specifically prohibits false ads intended to induce the purchase of food, drugs, devices, or cosmetics.
- Section 15 defines a false ad for purposes of Section 12 as one that is “misleading in a material respect.”
Certain necessary elements undergird all deception cases.
- There must be a representation, omission, or practice that is likely to mislead the consumer.
- The practice must be examined from the perspective of a consumer acting reasonably in the circumstances. If the representation or practice affects or is directed primarily to a particular group, the Commission examines reasonableness from the perspective of that group.
- The representation, omission, or practice must be a material one.
- The basic question is whether the act or practice is likely to affect the consumer’s conduct or decision with regard to a product or service. If so, the practice is material and the consumer injury is likely because consumers are likely to have chosen differently but for the deception.
The FTC regards marketing claims and consumer testimonials about nutraceuticals, skin care, and weight loss products as “health and safety claims.” They’re also called establishment claims. Establishment claims require a lot of substantiation – “competent and reliable scientific evidence” – even if the ad does not expressly suggest such a level of support.
Competent scientific evidence consists of “tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.”
Where health and safety/establishment claims are involved, these tactics are inadequate:
- Anecdotal evidence
- News articles
- Sales materials
- Low return rates
- Money-back guarantees
Instead, FTC normally takes the position that an advertiser must have a minimum of two controlled clinical studies demonstrating the claimed benefits of the exact product formulation marketed – as opposed to certain ingredients – in order to support the claims.