DSSRC Administrative Closure #316

The Direct Selling Self-Regulatory Council (DSSRC) contacted, a direct selling company (“Company”) that sells a variety of nutritional and wellness products including skin care, weight-loss and energy products. The DSSRC inquiry involved 13 product performance claims identified on Facebook and Instagram. DSSRC expressed concern that the claims communicated to consumers that the Company’s products could treat a number of health-related conditions including attention deficit hyperactivity disorder (ADHD), asthma, depression, arthritis and joint pain, among other conditions.

After commencing the inquiry, the Company immediately responded by taking corrective measures to rectify the flagged social media posts. More specifically, the Company contacted the salesforce members responsible for the posts, directing them to promptly delete any non-compliant content or modify it to ensure compliance. Consequently, the Company was successful in removing 11 of 13 social media posts brought to its attention by DSSRC. The two remaining posts (which DSSRC determined included claims that the Company’s products were effective against COVID-19 and HIV) were disseminated in 2020 by individuals who are no longer active with the Company.

With respect to the post that referenced COVID-19, the Company attempted to contact the individual responsible for the post using the most recent contact information that was on record. Unfortunately, attempts to communicate were unsuccessful as the correspondence was returned. The Company then reported a trademark claim with Facebook and the platform responded that there was not sufficient evidence of such a claim, potentially due to the fact that the word mark at issue remained trademark pending. The Company subsequently submitted a second trademark claim providing more information and a more detailed description of the infringed trademark and is currently awaiting Facebook's response. In addition, the Company addressed the issue in the comments section of the post, clarifying that the post was unauthorized and highlighting its unsuccessful attempts to contact the responsible individual.

Regarding the social media post alluding to the efficacy of the Company’s products to address HIV, the Company informed DSSRC that salesforce member cancelled its account with the Company on February 4, 2022. Despite the individual's lack of response to the Company's request to remove the unauthorized post, the Company proceeded to file additional trademark claims with Facebook (initial reports potentially being denied due to the pending status of the word mark in question) and has once again provided more detailed information and description of the infringed trademarks. Additionally, the Company addressed the issue in the comment section of the post, clarifying that the post was not authorized by the Company and highlighting its unsuccessful attempts to contact the individual responsible for the posts. The Company again provided remarks in the comment section of the post, noting that the post was not authorized by the Company and despite its attempts to contact the individual responsible for the posts, the individual has not responded to its request to remove the post.

The Company expressed optimism to DSSRC that once the trademark is no longer pending, the platform will remove both of the remaining posts.

DSSRC acknowledged that the Company's actions were necessary and appropriate. As outlined in the Federal Trade Commissions (FTC) Health Products Compliance Guidance, in addition to conveying product claims clearly and accurately, marketers need to ensure that there is adequate support for their claims. Under FTC law, advertisers must have a reasonable basis for their product claims before they are disseminated. What constitutes a reasonable basis depends greatly on what claims are made, how they are presented in the context of the entire ad, and how they are qualified. The FTC’s substantiation standard is a rigorous one, particularly when claims relate to health. It is designed to ensure that consumers can have confidence in the accuracy of information presented in advertising. A number of factors determine the appropriate amount and type of substantiation required, including the type of product, the type of claim, the benefits of a truthful claim – the cost and feasibility of developing substantiation for the claim, the consequences of a false claims and the amount of substantiation that experts in the field believe is reasonable.¹

When applied to claims regarding the efficacy or safety of health-related products, the factors described above make up the FTC’s rigorous substantiation standard of “competent and reliable scientific evidence.” The FTC has more specifically defined that standard as “tests, analyses, research, or studies that (1) have been conducted and evaluated in an objective manner by experts in the relevant disease, condition, or function to which the representation relates; and (2) are generally accepted in the profession to yield accurate and reliable results.”²

Accordingly, in the absence of reliable and competent scientific evidence to support the claims at issue, DSSRC concurred with the Company’s decision to facilitate removal of the posts.

In conclusion, DSSRC found that the Company made a bona fide, good-faith effort to address its concerns by promptly disabling 11 of 13 identified posts and using its best efforts to have the two remaining posts removed. The inquiry was administratively closed based on the Company's demonstrated good faith actions in addressing the concerns brought to its attention.

(Administrative Closure #316, closed on 5/07/24)
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