The marketers of products as diverse as dietary supplements, mobile apps, cosmetics, and apparel may not think they have much in common. But if they make health-related representations, they all need sound science to support what they say. Here are five principles to help keep your practices in line with the law.
1. Claims about serious medical conditions call for serious science. Support objective product claims with (at minimum) competent and reliable scientific evidence. For example, a $1.35 million FTC settlement with Tommie Copper focused on allegedly misleading pain relief claims for the company’s copper-infused compression wear. A pending action against the marketer of Elimidrol – announced last month as part of a joint law enforcement sweep with the Department of Justice, FDA, and others – challenges representations that the supplement substantially reduces symptoms from opiate withdrawal. Earlier this year, the FTC announced settlements with two companies that said their apps could detect symptoms of melanoma. Regardless of the nature of your product, it boils down to this: Before promising a health benefit, have appropriate proof in hand.
2. Testimonials may trigger a triple-barrel substantiation requirement. Consumer endorsements are an advertising staple for health-related products, but before featuring glowing testimonials from “Tina in Tonawanda” and “Tom in Tuscaloosa,” consider these points:
- Prudent marketers take steps to ensure the consumer endorser is a bona fide user of the product who actually achieved the advertised results. And if there’s a material connection between Tina or Tom and the advertiser – a link that might affect the weight or credibility of the endorsement – disclose it. Consult The FTC’s Endorsement Guides: What People are Asking for more information.
- A statement from a consumer endorser (“ABC Product cured my xyz!”) likely conveys the implied claim that the advertiser has proof to support the underlying efficacy representation. If you don’t have that evidence, don’t attempt the end-around of conveying the claim through a testimonial.
- According to the Endorsement Guides, consumer testimonials “will likely be interpreted as representing that the endorser’s experience is representative of what consumers will generally achieve” in similar circumstances. If that’s not the case, “clearly and conspicuously disclose the generally expected performance in the depicted circumstance.”
3. Savvy marketers heed words of warning. Have you read the warning letters FTC staff recently sent to 20 marketers of weight loss products? The letters don’t mince words: “It is unlawful to advertise that a product causes weight loss unless you possess well-controlled human clinical studies of the product, or a substantially similar product, substantiating that the claims are true. Such studies must be randomized, double-blind, and placebo-controlled, and conducted by researchers who are qualified by training and experience to conduct such studies.” Even if you didn’t get a letter, is it time for a compliance review? Questionable pound-shedding or inches-off promises are liable to attract law enforcement attention tout de suite.
4. Bandwagons can be dangerous vehicles. It’s a common phenomenon. A certain ingredient du jour attracts attention – often without much scientific support – causing some advertisers to rush to market. Take green coffee bean extract, for example. After the substance was touted on TV as a weight loss remedy (including on The Dr. Oz Show), the FTC says some companies jumped on the advertising bandwagon without proof for their claims. The FTC’s recent settlement with NPB Advertising demonstrates the risks of bandwagon jumping.
5. “Oops! I Did It Again” isn’t on the FTC’s playlist. A recent settlement with Crystal Ewing, a familiar name in enforcement circles, demonstrates the importance of complying with existing orders. When the FTC sued her in 2007, she agreed to a $1.4 million settlement and a ban from sweepstakes promotions. Then there was the $9.5 million contempt settlement earlier this year for violating that order. The most recent action, addressing her involvement in the sale of diet pills, imposes a $2.7 judgment and lifetime ban from the weight loss business. The good news for consumers is that the FTC will use every tool at its disposal to pursue recidivists. The bad news for scofflaws is that things aren’t likely to go well the second (or third) time around.
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