How do we maintain trust in advertising in a time of increased skepticism of the media? One way is through claim substantiation. During the 2017 ERSP Self-Regulation Summit held in conjunction with the Government Affairs Fly-In in Washington, D.C., our panel of advertising lawyers weighed in on how to navigate the complex world of claim substantiation.
We were joined by moderator Jeffrey Greenbaum, managing partner, Frankfurt Kurnit Klein & Selz PC, and panelists Linda A. Goldstein, partner, Baker & Hostetler, Edward F. Glynn, Jr., partner, Locke Lord LLP, and Ivan Wasserman, partner, Amin Talati Upadhye.
Our panel of experts touched on some big questions in claim substantiation:
Q: Do you have reasonable basis for the claims you’re making?
Wasserman says it’s important to look at your claim in the context of your marketing ads as a whole. What’s the nature of your product and the nature of the claim?
Glynn says that the biggest challenge comes with health/medical types of claims, such as dietary supplements. For example, the FTC in May sent additional refund checks totaling almost $2 million to people who bought Pure Health or Genesis Today green coffee bean extract supplements under false pretenses from Walmart and other retailers.
Be sure to spell out that you are not making a claim that requires a “five star review.” Don’t forget, when all is said and done, you are responsible for the claims you make!
According to Goldstein, the Federal Trade Commission (FTC) wants fairly robust human clinical studies to prove results. What are the benefits you’re touting? Most important of all, studies need to be able to match the claim. You’re not going to be able to make claims you can’t support. Simple as that. If studies show significance, but the ads don’t match study results, that’s a big problem.
And of equal importance, make sure the people in your marketing department are communicating with the people running the study to have the most accurate information.
Q: Are clinical studies enough to back up your claim?
According to Wasserman, you need to be absolutely aware of the entire body of research/evidence out there relating to your claim. And this of course means going beyond your research in clinical studies. The FTC may already know of alternative evidence out there and as a direct marketer, you need to be just as informed.
Goldstein says to take a look at the specifics of your study. One way to examine this is by bringing in an expert in the field to review the findings from your study. When your claims are being reviewed by the FTC, they will take your study to their experts to verify and it will become the “battle of the experts.” You will have peace of mind knowing you’ve done your homework.
About the Author
Bill McClellan serves as ERA's Vice President of Government Affairs. Prior to joining the association, Bill worked as a lobbyist at the Georgia Automobile Dealers Association, covering the state legislature and Georgia's congressional delegation. Before working for the GADA, Bill managed political campaigns at both the congressional and state constitutional levels.