Counselor's Corner

Q: Which agency governs the use of testimonials and endorsements for promotions? Are there any ground rules?

A: The Federal Trade Commission monitors testimonials and endorsements and requires the marketer to have scientific evidence to substantiate any claims it makes (indirectly) through such statements. Any consumer or spokesperson making a testimonial is speaking for the company marketing the product, so the claims are attributed to the company. Thus, it is not enough to defend a testimonial about an overwhelming health benefit by saying it "really happened" or it is the "honest opinion" of the endorser. Advertisers must also have appropriate scientific evidence to substantiate the underlying claim. According to the FTC's booklet Dietary Supplements: An Advertising Guide for Industry (1998), "[Dietary supplements] that include consumer testimonials about the efficacy or safety of a supplement product should be backed by adequate substantiation that the testimonial experience is representative of what consumers will generally achieve when using the product."

Q: Why might the Federal Drug Administration examine testimonials and endorsements?

A: The FDA may examine testimonials and endorsements for evidence of a product's "intended use." If the label contains only permissible structure/function claims—boosting the immune system, for example—but the testimonials refer to fibromyalgia or cancer treatment, the FDA could determine the supplement's intended use is as a drug. If in testimonials for a weight-loss product consumers claim to have lost 100 or 150 pounds, the FDA could view this as an implied obesity claim, which would be one factor in deeming the product an unapproved new drug.

Q: What basic advertising rules apply?

A: The FTC has well-established regulations for consumer testimonials and professional endorsements. These regulations are found in Title 16 of the Code of Federal Regulations, Section 255. The following apply most directly to supplements:

Q: When may an advertiser legally use consumer testimonials?

A: Companies may use testimonials when the consumer has been taking the supplement in the amounts recommended on the label for a reasonable amount of time and has experienced a benefit not attributable to other products or to lifestyle changes. Those giving the testimonials also must have signed a consent form (see sample on page 98).

Q: Is it enough to print "results may vary" for a disclaimer?

A: No. "Results may vary" is usually not sufficient, especially on weight loss products. For products that have not been scientifically studied, an accurate and nondeceptive disclaimer would be "There is no reason to believe you will achieve the same result as the consumer speaking in this testimonial. No studies have been conducted to support this result or conclusion."

Consider this testimonial for a weight loss product: "I lost 27 pounds in two weeks without dieting or exercising; now I fit into a size 4 dress." An acceptable disclaimer is: "These results are not typical. The average weight loss achieved in a clinical study was eight pounds in two weeks." (Another problem in this example is the advertiser's implied claim that the supplement can promote significant weight loss without a reasonable diet and moderate exercise.)

Q: Are there any rules or guidelines for printing disclaimers?

A: Yes, disclaimers must be clear and conspicuous. They must be printed in the same size type as the testimonial itself—never in what the FTC has called "micro print"—and must be placed adjacent to or at least on the same page as the testimonial.

Q: Are there any special rules concerning expert endorsements?

A: As always, misleading or deceptive aspects and claims are forbidden. The advertiser should make sure the endorser has the appropriate qualifications to be an expert and has conducted some examination or product testing sufficient to support the statement, as judged by others in the same field.

For example, if the endorser of a heart-health supplement is "Dr. X," the consumer may reasonably assume that X is a medical doctor, and probably a cardiologist. If X is actually a psychotherapist, this must be disclosed. In addition, if the endorser (whether consumer, expert or celebrity) has a "material connection" to the advertiser, this also must be disclosed. Thus, the advertiser's medical consultant, chief executive officer or mother may endorse the product provided each material connection (whether financial, political or personal) is disclosed.

Susan Brienza is an attorney in the Denver office of the Washington, D.C., law firm Patton Boggs LLP. She practices in the area of regulatory compliance, FDA law (including DSHEA) and FTC law. E-mail her at [email protected].

This column is not meant, and should not be construed, as a legal opinion or legal advice. It is intended to provide general principles and some examples of an aspect of FTC law.

Natural Foods Merchandiser volume XXIV/number 9/p. 98, 100