Avoiding False Advertising When Making Health-Related Claims

Jun 9, 2022 by Laura Brett, Vice President, National Advertising Division

Advertising a new product to help consumers achieve better health? Our “Six Tips to Properly Advertise your Health and Wellness Claims” provides guidance on how to avoid false advertising that can bring scrutiny from regulators and potentially a challenge at BBB National Programs’ National Advertising Division (NAD). In this article, we build on those initial six tips with insights from recent NAD cases. 

NAD cases provide critical insight to advertisers. Understanding what went wrong with the advertising that NAD reviews and evaluates can help prevent future mistakes. Follow these tips to prevent misleading advertising that could interfere with the successful launch of a new health or wellness product. 

  

1. Pay attention to ALL claims that your ads reasonably imply. 

Rule #1 is to understand that you must have a reasonable basis for all messages reasonably conveyed by your advertising, even messages you did not intend to convey. An ad may deliver those messages in a variety of ways, including through visual depictions. 

NAD recently reviewed advertising for three-month, six-month, and one-year survival food kits that provided calories that would allow consumers to “survive” for the claimed duration. NAD identified that the calories provided in the replacement meals might not meet the needs of all consumers and the actual portion sizes of the product did not match the depictions in the advertising of heaping amounts of food. Advertising for the “survival” food kits claimed that consumers would not only have sufficient food to survive for the duration claimed, but by showing generous portions and families enjoying large meals together, implied that consumers would have the generous portions depicted for the claimed duration. As a result, NAD recommended that the advertising be modified to better match what the product delivers.  

Advertisers must make sure that both the express advertising claims and images used in the advertising creative are a good fit for the evidence that supports them.  

 

2. Ensure wellness claims that cross over into health or disease claims are properly substantiated. 

All advertising claims must be substantiated by a reasonable basis, but if your claims are communicating a health or disease benefit, you need competent and reliable scientific evidence to support those claims.

A recent case evaluating advertising for essential oils provides guidance on the line between health-related and non-health-related claims. Claims like “calming aroma” tell consumers that the product creates a sensory experience, which is not a health-related claim. In contrast, a claim such as “helps relieve feelings of anxiety” conveys a message to consumers that the product confers a benefit to physical or mental health. For a health-related claim, the advertiser must provide a higher level of support. 

 

3. If your scientific support is limited, disclose the limitations, or change the claim. 

You may still be able to use reliable scientific evidence as support for a health claim, even if it has some limitations, if you include proper clear, conspicuous disclosures that outline the limitations and do not contradict the claim itself. If you cannot disclose the limitations properly, change or discontinue the claim. 

Advertising for probiotic supplements claimed that the product was clinically proven to help IBS symptoms based on a large-scale study that showed promising results. However, the study lacked controls associated with clinical testing like placebo, blinding, and randomization, leaving it not sufficiently reliable to support unqualified health benefit claims. Claims based on emerging evidence need to be carefully qualified to indicate the state of the science, so NAD recommended that the advertiser discontinue the claims. 

 

4. Adherence to regulatory guidelines is only half the substantiation battle.

All advertising must be truthful and not misleading, but many products in the health and wellness space are also subject to specific regulations by the FDA, EPA, and other federal regulatory bodies. Advertisers should adhere to regulatory requirements as well as provide reliable support for all advertising claims.  

In 2021, an advertiser relied on FDA approvals that its pain relief patch could treat mild to moderate pain, while other pain patches were approved to treat only minor pain, to support comparative claims that its pain patch was the strongest on the market. Generally, however, FDA approvals do not support comparative superiority claims so comparative head-to-head testing is usually necessary for such claims. 

 

5. Comparative claims must be truthful and substantiated. 

Advertisers are required to substantiate all comparative claims made for the product they are advertising, including messages they did not intend to convey.   

The claim “Ultimate Energy Bar” was reviewed in a recent case and NAD concluded that standing alone it may convey a message of hyperbole or non-provable opinion, however, when it is followed by measurable product attributes (i.e., an optimal blend of protein, fat, and carbs) it communicates to the consumer why the product is the “ultimate” energy bar and renders it an objectively provable claim requiring substantiation. 

Specific, tangible, factual assertions that are tied to laudatory claims can be understood by consumers to be an objective comparison that is measurable and, as a result, must be supported by a reasonable basis.  

 

6. Use consumer-relevant conditions to test products. 

To evaluate an advertising claim, ensure that the conditions used for the test are in line with the advertising claims made or the product specifications. If the environment is not relevant to the conditions in which the product will be used in the real world, the test will not be adequate to substantiate the product.

In a case reviewing advertising for a new aspirin product, which can be taken as a preventive therapy for heart disease or stroke, NAD concluded that comparing speed of efficacy based on three days of data is not a consumer-relevant endpoint for a product intended for long-term use. Testing must be designed to reflect how consumers will use a product.  

Following these rules should help keep your advertising off the radar of the FTC and your competitors. If your competitors are not following these rules, consider bringing a challenge to NAD. It can be effective at leveling the playing field and promoting truthful advertising practices across an industry. Learn more about the various case tracks for an NAD challenge. Questions about advertising challenges? You can always reach out to NAD@bbbnp.org.  

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