Pivotal Moments for Ad Law in the 70s: Pfizer Factors and Comparative Advertising

Jun 16, 2021 by Katherine Armstrong, Deputy Director, National Advertising Division

As BBB National Programs’ National Advertising Division (NAD) celebrates its 50th anniversary, we are looking forward while also taking stock of the past, decade by decade. In NAD’s first decade (the 1970s), the industry experienced two pivotal legal developments that continue to impact advertising law and NAD cases today. 


The Pfizer Factors  

Many advertisers are familiar with “the Pfizer factors,” but most would probably say they do not know much about the facts of the case that created them. In 1972, one year after NAD and its appellate body the National Advertising Review Board were founded, the Federal Trade Commission (FTC) issued a seminal decision evaluating advertising for Pfizer, Inc.’s Un Burn, a sunburn product that claimed to anesthetize nerves in sensitive sunburned skin.

Interestingly, the FTC’s complaint did not challenge the truth or falsity of the express representations in the advertising but rather alleged that Pfizer violated Section 5 of the FTC Act because its advertising falsely implied that the claim to “anesthetize nerves” was substantiated by well-controlled scientific studies or tests. Although the FTC did not agree with the precise theory alleged in the complaint, it did agree that Section 5 requires advertisers to have substantiation for their advertising claims.    

In reaching its decision the FTC articulated the prior substantiation doctrine – that advertisers violate Section 5 if they lack a reasonable basis for their advertising claims at the time they disseminate the claims – as well as what have become known as the Pfizer factors, which help determine the appropriate level of substantiation an advertiser must have for objective advertising claims.

The FTC began by noting that consumers are often at a disadvantage concerning the reliability of a product and that it is more economic, rational, and imposes far less cost on society to require a manufacturer to confirm product claims than for consumers to attempt to ascertain a claim’s validity. The FTC concluded that consumers are entitled, as a matter of marketplace fairness, to rely upon the manufacturer to have a “reasonable basis” for making performance claims and that a consumer “should not be compelled to enter into an economic gamble” to determine if a product will or will not perform as represented.  

The FTC then went on to examine what constitutes a “reasonable basis” and determined that it is essentially a factual issue, to be determined on a case-by-case basis, by considering the interplay of overlapping factors that are now referred to as the Pfizer factors.

As subsequently re-stated in the FTC’s Policy Statement Regarding Advertising Substantiation, these factors are the:  

  • Type and specificity of the claim i.e., safety, efficacy, dietary, health medical, 
  • Type of product,
  • The possible consequences of a false claim i.e. personal injury, property damage,
  • The benefits of a truthful claim,
  • The cost of developing substantiation for the claim, and
  • The amount of substantiation experts in the field believe is reasonable.

 

The Pfizer factors provided a framework for deciding whether substantiation provided for an advertising claim was reasonable. The FTC’s opinion in the Pfizer case set forth a disciplined yet flexible approach that has strengthened the rigor in evaluating ad claims and the fit between the evidence and claim.  

Whether evaluating a claim that a product relieves pain, prevents odors, cleans better, or smooths skin, applying the Pfizer factors provides guidance on the level of support needed. The standard has been applied universally at the FTC and NAD. The resulting consistency in the standard for reviewing claim substantiation has made advertising industry self-regulation, as embodied by the work of NAD, more effective.    

 

Comparative Advertising 

In 1979, the FTC issued a one-page Policy Statement on Comparative Advertising. It was issued after the FTC investigated industry trade associations and the advertising media regarding comparative advertising policies and noted that many of these codes and standards contained language that could be interpreted as discouraging the use of comparative advertising.     

The Policy Statement articulated the FTC’s position that:

  • Industry self-regulation should not restrain advertisers' use of truthful comparative advertising, 
  • Truthful comparative advertising should not be restrained because it benefits both advertisers and consumers,
  • Disparaging advertising is permissible so long as it is truthful and not deceptive, and
  • Comparative advertising will be evaluated in the same manner as all other advertising.     

 

It is noteworthy that later in this first decade after NAD was founded, at a time when the two bodies were working out the bounds of their relationship, the FTC sent a strong message about the value of truthful comparative advertising. 

Comparative advertising that is both truthful and not misleading benefits both consumers and competition. Flurries of NAD challenges to comparative advertising follow when technologies evolve or disruptors enter a traditional industry. Other comparative advertising challenges are filed as the result of seasonal marketing, consumer trends, or regulatory gaps. The FTC’s Policy Statement on Comparative Advertising has fostered a healthy competitive advertising landscape that encourages innovation. It has also increased the industry’s reliance on NAD to resolve truth and transparency issues that arise in comparative ads, allowing industries to level the playing field using NAD’s challenge process.     

FTC Chairs and Commissioners have long referred to NAD as the gold standard of industry self-regulation. Chairman Janet D. Steiger praised it for providing “real benefits to businesses, consumers and government,” and Chairman Robert Pitofsky called it “the best example of self-regulation that I am aware of in American Industry.” The comparative advertising policy statement is an interesting footnote to the strong relationship that developed over NAD’s first decade between the non-profit self-regulatory body and the FTC.  

Suggested Articles

Blog

The 2010s – the Digital Advertising Frontier

In the 2010s, the confluence of social media and digital advertising generated two new issues in advertising law: the use of influencers for marketing and the propriety of native advertising. Both the FTC and NAD provided guidance on these emerging issues during NAD’s fifth decade of work in ad law.
Read more
Blog

Self-Regulation Is a Tool to Mitigate Litigation

Independent industry self-regulation, when developed and implemented properly, is a powerful tool for enhancing consumer trust in business and protecting consumers. And as we emerge from the reduced trust in government wreaked by the COVID-19 pandemic, it is time for independent industry self-regulation to help solve vexing business problems. In-house counsel can play an important leadership role in those efforts.
Read more
Blog

Is Your Business Ready for Consumer Data Privacy Requests?

Businesses face many common pitfalls as they prepare to handle consumer privacy requests. They may be referred to as “data rights,” “data subject rights” (DSRs), or “data subject access rights” (DSARs). No matter what they are called, there are consistent themes in the best practices and pitfalls inherent in these essential elements of any privacy program.
Read more
Blog

Three Strategies for Making the Most of a Mediated Settlement

Over the years, we have learned that success in mediation comes as much from utilizing emotional intelligence as it does from knowing the nuts and bolts – and the legalities – of the mediation process. This blog outlines three strategies for making the most of a mediated settlement.
Read more