Substantiating Advertising Claims in Three Steps: A How-To Checklist for Advertisers
Apr 8, 2021, 09:00 AM by Katherine Armstrong, Deputy Director, and Laura Brett, Vice President, National Advertising Division
The goal of advertising substantiation is threefold:
- Assure that advertising is truthful
- Prevent consumers from being misled
- Level the playing field for competitors
Substantiating advertising claims is important, both to comply with the law and to avoid regulatory scrutiny or a potential challenge from a competitor in court or in a proceeding before BBB National Programs’ National Advertising Division (NAD). NAD is an independent self-regulatory forum established by the advertising industry that reviews advertising in response to competitor challenges or on its own initiative, to examine the fit between the challenged claims and the substantiation provided.
What follows is not legal advice but a basic one-two-three checklist for advertisers concerned about substantiating their advertising claims.
Step One: Consider the Product
Certain products are subject to specific regulations and guidance. If the product is a food, dietary supplement, drug, medical device, or cosmetic, Food and Drug Administration (FDA) regulations apply. Compliance with regulations is not the end of the story, though, because all advertising claims, whether for a regulated product or not, must be truthful and not misleading.
Advertisers should also consider potential Federal Trade Commission (FTC) or FDA guidance with respect to substantiating certain types of claims, such as for the health benefits of food or dietary supplements. Likewise, the FTC has issued guidance on certain environmental benefit claims as well as other specific topics, such as Made in USA claims. Valuable guidance from the FDA and FTC can help advertisers avoid being on the wrong side of truth-in-advertising principles.
Step Two: Examine All that the Advertising Conveys
Advertisers are responsible for all express and implied claims that reasonable consumers take away from their ads and must have substantiation for all claims before they begin advertising the product. Express claims include the words in the ad itself. Implied claims include claims reasonably inferred from express claims as well as from depictions and from what is omitted.
For example, an ad for a “Wonder Widget” that is described as both “durable and able to withstand the toughest conditions” makes an express claim about the product itself, but also may include an implied claim that the Wonder Widget is nearly indestructible. Consumers reviewing the claim would reasonably expect that the Wonder Widget holds up to bad weather, poor maintenance, and generally will withstand the ways in which the Wonder Widget can be used and even foreseeably misused. Advertisers must have substantiation for all messages consumers reasonably take away from the ad, even if the advertiser did not intend to make the claims.
In addition, ads that expressly or impliedly compare one product to another, including superiority claims, such as that the Wonder Widget performs better than competitors (named or unnamed), require substantiation as well. Accordingly, if the Wonder Widget ad also included claims about its low cost or superiority to other similar products, the advertiser would have to be able to substantiate those claims.
Step Three: Determine the Appropriate Level of Substantiation
There is no “one size fits all” when it comes to advertising but there are a few important rules of the road. In substantiating an ad claim, the support should be a good fit for the claim. An advertiser must have a reasonable basis for its express and reasonably implied claims. A reasonable basis can vary but generally means objective evidence that supports the claim. The appropriate level of substantiation is driven largely by the type of claim and product and what experts in the relevant field believe is reasonable.
The type of claim matters especially when it involves health or safety. Health and safety claims require a higher level of substantiation and must be supported by competent and reliable scientific evidence, which includes, “tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.”
If the claims are that the product can treat, prevent, cure, or mitigate a disease, then the required level of substantiation is randomized, controlled, clinical testing. The results of these studies must be statistically significant and consistent with any surrounding body of reliable evidence.
Because health and safety claims require a high level of substantiation, advertisers should take care to ensure that a wellness claim does not convey the message that the product provides a greater health benefit than the advertiser possesses evidence for. (Read our six tips to properly advertise a health and wellness claim.)
A claim that specifies a level of substantiation must be supported by at least that level of substantiation. For example, if the Wonder Widget ad indicated that “studies show that the Wonder Widget could pull an elephant,” then the advertiser must have reliable studies that show the Wonder Widget can indeed pull the weight of an elephant.
Further, ad claims should be supported by reliable, objective evidence that can take many forms depending on the claims, including consumer use tests, laboratory tests, or other studies conducted to reliably demonstrate the claimed benefit. The consequences of a false claim and the amount of substantiation that experts in the field believe is reasonable are additional important factors to consider in evaluating the fit between the claim and its support. In some situations, claims may need to identify relevant limitations associated with the substantiation.
Note that testing a product with different ingredients, properties, or composition from the advertised product is generally insufficient substantiation unless there is additional reliable evidence demonstrating that testing on a different product can substitute for testing on the advertised product. It may seem obvious, but it is worth a reminder that reviews from satisfied customers are not considered reliable evidence.
The appropriate level of substantiation for express or reasonably conveyed implied claims will depend upon a variety of factors including the type of product, the type of claims conveyed by the advertising, and what experts in the relevant field believe is reasonable.
The goal is to find a “good fit” between the claim and the support for the claim so that the advertising is truthful, consumers are not misled, and there is a level playing field for businesses. Appropriately substantiated advertising will not only prevent consumers from being misled but should keep the advertising off the radar of regulators and competitors.
If your competitors are not following the rules for substantiating advertising claims, you can level the playing field by challenging their advertising before NAD.