Advertising Law Tool Kit - Ninth Edition | 2021

Venable / 13 12 / Venable Advertising Claim Substantiation If you are making health claims to sell your product or service, you should ask yourself the following important questions: • Does your ad contain numerical or comparative claims (e.g., “contains 20% fewer calories than the leading brand”)? • Does your ad contain express statements (e.g., “studies prove” or “two out of three doctors recommend”) about the amount or type of support you have for your product or service? If so, do you have the amount or type of support claimed? • Are you relying on studies of your product to substantiate your claims? If you are relying on studies of other products, do those products contain the same ingredients, in the same quantity and of the same quality, as your product? • Are there studies of the product about which you are making claims that contradict the study or studies you are relying on for substantiation? Claudia A. Lewis calewis@Venable.com +1 202.344.4359 Objective advertising claims require prior substantiation. Claims can be express or implied and generally relate to tangible characteristics of a product or service. If an ad contains claims about a product or service that can be measured or otherwise proved true or false, marketers must ensure there is a “reasonable basis” for those claims. A good rule of thumb for what constitutes a “reasonable basis” is the amount and type of substantiation experts in the field believe are reasonable to support the claim. Special care is required for health and other claims that consumers cannot evaluate on their own, such as “reduces cholesterol levels.” Advertising that includes health claims generally must be substantiated by well-controlled, double-blind human clinical studies. Todd A. Harrison taharrison@Venable.com +1 202.344.4724