What marketers need to know about the FTC’s updated guidelines on health claims

Some experts say the guidelines are a significant update to previous iterations. They stress that marketers should provide more concrete grounds for their claims, making it clear that brands cannot make vague claims to circumvent the rules. Others say the guidelines could make marketing more difficult for direct-to-consumer and other small businesses, who may not have the budget to conduct the types of research required for certain health claims. increase.

The guidelines also serve as an important reminder that advertising agencies, professional advocates, and others involved in marketing products that make health claims have a responsibility to follow the rules. Practitioners and other companies in the health industry.

Under FTC guidelines, all parties directly participating in marketing and promotion, or having authority to control those practices, must ensure that these claims are presented truthfully and with full support. He said he has a duty to ensure that

Although it states that the new guidelines have no force or effect of law and are intended as business guidance, the FTC intends to help advertisers comply with the basic principles of agency law. says there is.

Here’s what marketers should know about the new guidelines and what they mean for the industry.

What is covered by the new guidance publication?

In its document, the FTC clarified that the change to the title of the publication made it clear that its guidance applies fully to all health-related claims, not just supplements, as the old title implied. He said he intended to

Since 1998, the agency has filed over 200 cases involving false or misleading advertising claims about the benefits or safety of dietary supplements and other health-related products, including foods, homeopathic products, health devices and health-related apps. resolved or adjudicated the case.

Chris Cole, partner and chair of advertising, marketing and promotions at Katten Muchin Rosenman LLP, said the broader range represents a large category of products that includes everything from nutritional supplements to air filters. .

“They consider health products to be anything that is claimed to have some benefit to human health,” he said. The FTC has attempted to apply some of the same standards to other types of products. [beyond supplements]And I think this just formalizes the fact that it does. ”

What basis is required for health claims?

The FTC’s updated guidelines include an expanded section highlighting rules that companies expect to support health-related claims in “high-quality, randomized, human clinical trials.” increase.

Some experts say the change is the most important and controversial part of the updated guidance, given that brands may need to do additional work to make their claims. said there is a possibility.

“It is very expensive to do this. It is difficult to do. [like] It’s overkill for many of the more mundane types of claims … and I’m not sure it will necessarily help in really all cases,” Cole said. “The FTC is very strict here. I was trying to force my opinion on you.”

Robert Freund, an attorney focused on advertising and e-commerce issues and founder of Robert Freund Law, said the FTC’s previous position was more flexible. For example, claims that vitamin C drinks boost immunity may not have justified human clinical trials so far. “But under the new guidance, their position is ‘what we expect across the board for health claims of all kinds,'” he said.

Also, testing methods are scrutinized. The FTC said the revised guidance takes advantage of its lengthy legal battle with POM Wonderful to dig deeper into quality investigations. In 2013, the FTC found that POM and its directors falsely advertised that their products could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction, and that such benefits were clinically proven. have been found to be empirically proven. This ruling was ultimately upheld by the DC Circuit Court and then the Supreme Court. declined to reconsider its ruling in 2016.

Can marketers make so-called vague claims?

Some marketers have resorted to vague claims, such as saying that a product “may” achieve a claimed benefit or “help” achieve something. clarifies that “Qualifications” is inappropriate. It adds that consumers are more likely to interpret qualifiers like “promising” and “pilot” as positive attributes rather than substantive disclaimers about the state of scientific evidence behind a claim. .

This may change how some marketers interpret liability for making certain claims.

Cole said many advertisers have made a habit of prefixing claims such as “helps reduce depression” with the word “helpful” to protect against drug claims rules. I believe that

“Not necessarily,” he said. “I think the FTC has made that clear. [it is] I’m not going to give you a free pass just because I put the word “helpful” in front of it. This should send shivers down the spine of many marketers. ”

What does this mean for the industry?

Cole said the new guidelines are important, but what happens will depend on how the FTC enforces them.

“Usually when you see these new guides coming out, it brings in some enforcement cases pretty quickly. It’s like sending a message. [to say]”Hey, we’re serious about this. And I wouldn’t be surprised to see it,” he said.

Yadim Medore, founder and CEO of nutritional supplement-focused consulting firm Pure Branding Inc., said the new guidelines raise the bar for the kind of research companies need to make health claims. I was. He said it would help strengthen the integrity of the industry.

Attorney Freund said all companies and marketers operating in this space should examine all claims in their ads to see if they need to update their language or basis. I was.

What does this mean for industry competition?

Experts said clarified rules on proof could make it more difficult for start-ups trying to market products in the health sector.

Medre said the updated guidance suggests that companies may need to invest in clinical trials of finished products rather than relying on claims from studies conducted by individual brand ingredients. It said it could create a barrier to entry for emerging brands with multiple ingredients.suppliers.

According to Freund, that kind of research is often difficult for smaller companies that may not have such funding. It will affect smaller businesses more than anything else,” he said.

Email to Megan Graham megan.graham@wsj.com