How Long Can Your Product Be New and Improved?

We thought we would take this opportunity to remind readers of the basics of “new and improved” advertising. In an oldie but goodie advisory opinion from 1967, the FTC opined that while it wanted to maintain flexibility to address particular situations (but of course!), that “it would be inclined to question use of any claim that a product is ‘new’ for a period of time longer than 6 months" (with a limited test market exception). The “6 Month Rule” was thus born and is still generally alive and well, although not the basis for recent enforcement activity. In addition to the general time frame, the FTC advised that the product in question must actually be entirely new or “has been changed in a functionally significant and substantial respect.” A package change alone, or some other insignificant or insubstantial change, does not support a “new” claim. There are more specific rules or guidance for new claims for refurbished products or for textiles.

- Amy Mudge