Make Sure You Can Support Your Advertising Claims

I’ve been discussing the truth-in-advertising rules included in the Federal Trade Commission Act, which provides that unfair or deceptive acts or practices with respect to advertising are unlawful.  In order to comply with the various requirements, advertisers must be prepared to provide the Federal Trade Commission (“FTC”), as well as state regulators, with proof to support all express and implied claims made in advertising materials.  Specifically, this means that advertisers must have "reasonable basis" for the claims, which means objective evidence that supports the claim.  The FTC follows different guidelines, and requires different kinds of evidence, based on the nature of the claim.  Obviously an advertiser must have the level of evidence that it actually says it has in the wording of the advertisement.  For example, if an advertiser claims that it product is recommended by three out of four physicians than it must have a reliable survey that provides support for that particular statement regarding the popularity of the product.  When the advertisement is not as specific, the level of proof required by the FTC will depend on several factors including what experts in the applicable field believe might be necessary to support the claim. Not surprisingly, health or safety claims that appear in an advertisement must be based on "competent and reliable scientific evidence", which means tests, studies, or other scientific evidence that has been evaluated by people who are actually qualified to review it and pass on its validity and completeness. In addition, when tests or studies are used to provide support the record must show that they were carried in accordance with methods deemed accurate by recognized experts in the field.  Advertisers must have the proof to support a claim in hand before they run the advertisement.

The content in this post has been adapted from material that will appear in Business Transactions Solutions (February 2008) and is presented with permission of Thomson/West.  Copyright 2008 Thomson/West.  For more information or to order call 1-800-762-5272.

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