Honesty is the Best Policy
The FTC's truth-in-advertising law can be boiled down to two requirements: 1) advertising must be truthful and not misleading; and 2) before disseminating an ad, advertisers must have adequate substantiation for all objective product claims. A deceptive ad is one that contains a misrepresentation or omission that is likely to mislead consumers acting reasonably under the circumstances to their detriment. When evaluating claims about the efficacy and safety of foods, dietary supplements and drugs, the FTC applies a substantiation standard of competent and reliable scientific evidence (www.ftc.gov
To determine whether an ad complies with FTC law, the FTC reviews all express and implied claims that the ad conveys to consumers. Once the claims are identified, the scientific evidence is assessed to determine whether there is adequate support for those claims.
Identifying Claims and Interpreting Supplement Ads
Advertisers must make sure that whatever they say expressly in an ad is accurate. Often, however, an ad conveys other claims beyond those expressly stated. Under FTC law, an advertiser is equally responsible for the accuracy of claims suggested or implied by the ad.
When identifying claims, advertisers should not focus just on individual phrases or statements, but rather should consider the ad as a whole, assessing the "net impression" conveyed by all elements of the ad, including the text, product name, and depictions. When an ad lends itself to more than one reasonable interpretation, the advertiser is responsible for substantiating each interpretation.
Depending on how it is phrased, or the context in which it is presented, a statement about a product's effect on a normal "structure or function" of the body may also convey to consumers an implied claim that the product is beneficial for the treatment of a disease. If elements of the ad imply that the product also provides a disease benefit, the advertiser must be able to substantiate the implied disease claim even if the ad contains no express reference to disease.
Example: An ad for an herbal supplement makes the claim that the product boosts the immune system to help maintain a healthy nose and throat during the winter season. The ad features the product name "Cold Away" and includes images of people sneezing and coughing. The various elements of the ad - the product name, the depictions of cold sufferers, and the reference to nose and throat health during the winter season - likely convey to consumers that the product helps prevent colds. Therefore, the advertiser must be able to substantiate that claim. Even without the product name and images, the reference to nose and throat health during the winter season may still convey a cold prevention claim.