Take Care of Your “Health-Lite” Claims

Now more than ever consumers are paying attention to their health and wellness and in the last year the Federal Trade Commission (FTC) has proven that they are paying attention too. Their focus is on advertisers touting the benefits and unique health-related features of their products.

Some advertisers believe they can avoid the scrutiny of regulators and the National Advertising Division (NAD) when making health-related claims by making their claim “softer.” An example would be trying to use ingredient claims instead, such as “Formulated with X” or adding that the product “helps” to treat a health-related condition.   

But context is key. If this claim is associated with health benefits, then advertisers must be mindful of the FTC’s Health Products Compliance Guidance, which was updated at the end of 2022 to replace the FTC’s 1998 Dietary Supplements. 

The substantiation bar is not lowered by changing the approach to the health-related claim. If you tout the presence of an ingredient in your product as providing a health benefit, consumers may understand that your product confers that benefit so you must have competent and reliable scientific evidence to support that implied takeaway.  

Similarly, if you qualify your claim to state that the product “helps to” or “may” confer a benefit, consumers understand the claim to mean that the product will provide some benefit, rather than understanding the qualifying language as a substantial disclaimer. 

Shortly after the updated Health Products guidance was released, the FTC put advertisers on notice, warning that claims about the health or safety benefits of a product must be truthful, not misleading, and most importantly substantiated with scientific evidence. 

When it comes to reliance on research, the guidance recommends that advertisers ensure that:

• The research is both internally valid but also relevant to their specific product and to the specific advertised benefit. 
• The research reflects the dosage and formulation of the advertised product as well as how well the outcomes tested in the study relate to the specific benefits advertised.
• If there are significant discrepancies between research conditions and the real-life use being promoted, advertisers have evaluated whether it is appropriate to extrapolate from the research to the claimed effect.
• The claims accurately reflect what the research shows.

Claims that don’t match the research results, no matter how sound that research is, are likely to be found as deceptive. The Health Guidance’s Example 23 is particularly instructive: 

“An advertiser conducts a literature search and finds several abstracts summarizing clinical studies about the association between a nutrient and the ability to perform better on memory tests. The advertiser relies on these summaries to support a claim that its supplement, which contains the same nutrient, aids memory. However, without looking carefully at the specifics of the study design, implementation, and results, there is no way for the advertiser to ascertain whether the research substantiates the product claims. (For example, did the research use a comparable formulation of the ingredient? Was the study adequately controlled? Did the study yield between-group results that are statistically significant?) Thus, the advertiser should carefully review the underlying science with the assistance of an expert before drafting advertising claims.”

These guiding principles inform health-related claims such as “our product lowers blood pressure” as well as “softer” claims. 

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