The Federal Trade Commission (FTC) requirement to support product claims cuts across many areas. Unsupported product claims can lead to private lawsuits, governmental intervention and problems in self-regulation. The advertiser and its agency share the obligation.
When an objective, provable claim is made, the advertiser must have adequate substantiation for the claim, before the advertisement is published or the commercial is broadcast. It is illegal to publish or broadcast a claim which you later intend to substantiate, in the belief, misguided or not, that you’ll be able to prove it. The law takes the position that consumer interest mandates that the advertiser have the proof in hand before it makes the claim.
Evaluate the overall or net impression of the advertising. Although a claim may be literally true, it may still be illegal if the consumer may reasonably draw a false inference from the advertising. The “net impression” is what counts. Any ambiguity will be construed against the advertiser.
Get support, review tests and clinical trials; make sure surveys are statistically valid and properly carried out. Support must be secured prior to publishing the claim. There must be a reasonable basis for any claim.
Under current law, subjective statements and opinions that cannot be verified nor measured are generally defensible as puffery because reasonable consumers would not take them seriously.
