Though customer testimonials and reviews can be great marketing tools, it’s important for companies to understand the guidelines for compliant posts, said Jeni Lamb Rogers, attorney at PSL Law Group, during an SFA webinar, Wednesday.
The Major Players
Both the FDA and the FTC share jurisdiction over online and social media advertising related to food products, said Rogers. This includes website and social media posts, as well as endorsements and reviews from consumers or experts. Generally, the FDA handles labeling, while the FTC regulates advertising; though social media posts can be regulated by both.
Allowed and Prohibited Claims
According to Rogers, any claim which expressly states or implies that a product may be used for the diagnosis, treatment, or cure of a disease, symptoms of a disease, or a diseased organ is prohibited from labeling and advertising.
Rather than making a disease claim, food companies can make a structure/function claim about a substance and its impact on a healthy and non-diseased structure of function of the human body, she said. However, this claim must be related to a nutrient that has an established recommended daily intake.
Examples of prohibited disease claims include saying a product "improves joint mobility and reduces inflammation," claiming it acts as a substitute for a prescription or non-prescription medication, or claiming the product has properties that fight a precursor to disease.
If the FDA or FTC finds a company in violation of these regulations, it may issue a warning letter, which explains the violations and provides the company with 15 days to respond with how it will fix this violation. Fixes can be costly and could damage a brand's reputation and buyer relationships, so it’s always wise to closely monitor and remove any content that may be misleading, Rogers advised.
Moderating Claims
Whether a product claim comes from a company or a consumer makes no difference to the FDA; consumer testimonials and reviews are held to the same standard of FDA compliance, said Rogers. The FDA expects that you will moderate consumer claims and will not share those which are false or misleading or make express or implied disease claims.
Additionally, the FTC can prohibit deceptive and unfair advertising. The FTC states that a representation, omission, or practice is deceptive if it is likely to mislead consumers and affect consumer’s behavior or decisions about the product or service, Rogers said. Additionally, the product is unfair if the injury it causes, or it's likely to cause, is substantial, not outweighed by other benefits, and not reasonably avoidable.
Substantiating Claims
Under FTC regulations, an advertisement employing endorsements by one or more consumers about the performance of the product will be interpreted as representing that the product is effective for the represented purpose, said Rogers. This means a company must have adequate substantiation for these claims, including competent and reliable scientific evidence that you would use if you made that claim directly.
For endorsements from doctors, healthcare providers, nutritionists, and other experts, Rogers noted the expert must have performed an evaluation of the product at least as extensive as someone with the same degree of expertise would need to perform to make the endorsement. You can’t say anything in an expert endorsement that would be misleading for the advertiser to say directly, and if an expert was compensated for the endorsement, that must be disclosed, she said.
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