The guides were last updated in 1980 and had recently been under a comment period. NBJ’s May issue, which focused on direct selling in the nutrition industry, cautioned direct sellers that new guidelines would likely include several important changes, including the removal of the “Results Not Typical” disclaimer. In general, the new guidelines require the disclosure of more information to the public and cut down on the ways in which testimonial ads can deceive consumers.
Ivan Wasserman, regulatory expert and attorney with the Washington, D.C.-based law firm Manatt, Phelps & Phillips, spoke to NBJ about the new guidelines and the effect they will have on the dietary supplement industry.
NBJ: Can you comment on the implications for the dietary supplement industry on the final FTC testimonial guidelines? How have things changed, and was there anything unexpected in the final guides? What should dietary supplement marketers be aware of?
Ivan Wasserman: Dietary supplement marketers need to be aware that things will change significantly when the new guidelines go into effect on December 1, 2009. The main change, of course, is that no longer will the disclaimer “Results Not Typical” be a guaranteed safe-harbor when a specific performance claim is made in a consumer testimonial that is not typical of what consumers will generally achieve.
Under the revised guidelines, when such a testimonial is used the generally expected performance with the product must be disclosed. If a marketer does not have data demonstrating the generally expect performance, they must either develop the data or not use the testimonial.
Some other changes have to do with new media, and they include the guideline that in certain circumstances any relationship material connection between someone who blogs about a product and the marketer must be disclosed—and that can include something as minor as providing a free sample of the product. Finally, and this is new to the final guides, the FTC has made it clear that if a marketer was the sponsor of a study, that fact must be made clear in any advertising that discusses the study. In short, marketers must review all of their current advertising and promotional practices to ensure that they comply with the revised guidelines.
Related NBJ links:
FDA Increases Enforcement Efforts, Warns Internet Marketers About Swine Flu Claims
Direct Sales: A Breeding Ground for Bad Claims?
50 Named in Oprah/Oz Lawsuit, Many Açai Companies on the List
Related NPICenter links:
FTC Publishes Final Guides Governing Endorsements, Testimonials