At yesterday’s Roundtable Breakfast Series program on false advertising disputes hosted by Arnold & Porter LLP, Mary Engle, the FTC’s Associate Director for Advertising Practices, outlined the FTC’s plan to tighten up the substantiation requirement the agency includes in consent orders related to health claims. This comes after the FTC has suffered setbacks in its attempts to enforce such consent orders because courts have found that the advertisers were meeting their obligations to have competent and reliable scientific evidence substantiating their claims. Our analysis of one of these cases, Lane Labs, can be found here.
Mary Engle noted that the current substantiation requirement was meant to be tough while at the same time providing defendants flexibility in how they met it. However, some courts have not interpreted the standard in the manner intended by the FTC. She set out three primary goals for the new, tighter substantiation requirement that the FTC will roll out in future consent orders:
- It will be easier to enforce as a result of its greater specificity, which will also provide defendants greater clarity on what substantiation they need to possess.
- It will better harmonize with the laws and regulations of other agencies, such as FDA.
- It will address situations where the results of a single study relied upon by the advertiser are inconsistent with the weight of scientific evidence in the field.
We will monitor the FTC’s implementation of this new substantiation requirement for health-related claims and keep you up to date on developments.
Also presenting at the Roundtable program were David Mallen, Associate Director of NAD, who talked about current advertising issues in NAD cases, Michael Mazis, Professor Emeritus of Marketing at American University’s Kogod School of Business, who talked about methodological issues in consumer advertising surveys, and Randy Miller, a partner at Arnold & Porter LLP, who talked about Lanham Act false advertising litigation.