Since the SARS-CoV-2 pandemic began, many companies have continued to develop antimicrobial products and devices to address health and safety concerns. Many of those companies are surprised to learn that the way in which they are marketing their products may subject them to regulation by EPA under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
It’s April, which means it’s time for Earth Day. But for so many consumers, sustainability is top of mind all year. Consumers are constantly seeking out products and services that they can feel good about using and purchasing. And marketers want to tout what their company is doing to be good to the environment. As a result, the marketplace is flooded with claims that our household cleaners are “non-toxic” and our packaging is “recyclable” along with many other environmental benefit statements for products and services.
To avoid what’s commonly known as “greenwashing,” marketers need to ensure that statements made about the environmental benefit of their products or services are clear, truthful, and evidence-based. A top resource in this area is the Federal Trade Commission’s “Green Guides,” which can help companies avoid making environmental benefit claims that can attract regulators and mislead consumers. While the Green Guides are not FTC regulations, they provide detailed guidance on the types of claims that the FTC considers deceptive under Section 5 of the FTC Act, which broadly prohibits “unfair or deceptive acts or practices in or affecting commerce.” (15 U.S.C. § 45(a)(1).) Although these Guides have not been updated in almost 10 years, they remain instructive when it comes to a review of environmental benefit claims.
Even before COVID-19 had turned each of us into an amateur epidemiologist, companies in nearly every industry had begun to recognize the magnetic appeal of health and wellness claims in consumer advertising. Marketers of everything from cleaning products to apparel to furniture to homes were suddenly making claims touting the health and wellness benefits of their products. It wasn’t just better, it was better for you and your family. It will surprise no one to learn that the pandemic year of 2020 only intensified this trend, as consumers focused as never before on the ways that their purchases might not only help them live better lives, but perhaps even keep them alive.
Predictably, competitors, regulators and the plaintiff’s bar have all taken notice of this trend, and moved aggressively in response. In 2020, for example, the BBB National Programs’ National Advertising Division (NAD), the nation’s premier forum for competitor initiated advertising challenges, recorded an extraordinary 50% uptick in challenges to health-related advertising. Similarly, the Federal Trade Commission (FTC), Food and Drug Administration (FDA), Environmental Protection Agency (EPA), and state regulators across the country have focused intense scrutiny on companies claiming to offer health benefits to consumers often desperate for help. It is natural to predict that class actions and Lanham Act activity will soon reflect these trends as well.
So with the undeniable power of these claims balanced alongside the risks of a misstep, how should brand messaging communicate the health and wellness benefits of a product in the “right” way? And what are the red flags to look for in the advertising of your competitors? Here are a few hints:
- Identify the Claims. Advertisement and marketing claims are intended to communicate characteristics of a good or service designed to entice a purchase. Claims are present in all forms of branded communication, from TV commercials, to print ads, radio announcements, pop-up ads, and social media influencer posts. Keep in mind it isn’t just about what you are saying, but what can be implied from the images, graphics and pictures.So whether looking to substantiate your own claims, or to challenge the claims of a competitor, the first step is to systematically identify the statements that actually qualify as a “claim.” For many marketers this can seem daunting, but in fact this initial analysis involves asking just a simple question: what exactly are you promising? Claims are promises and comparisons presented as facts: you should buy this product because it will improve your memory. You should buy this chair because it will reduce your back pain. You should use this cleaning product because (unlike the products sold by our competitors) it does not contain toxic chemicals. Performance claims, superiority claims, comparative claims – all of them are, in the end, statements which are either true or false, accurate or misleading. And it isn’t enough to say “everybody knows X is true” – all claims must be substantiated before you make them. And remember, it isn’t just what you say directly: you can be held accountable for what your spokesperson or influencer says, too.
- Substantiation. What kind of evidence would substantiate the claim? How much data is necessary? Do I need a clinical trial? Is my evidence enough?The simple answer is…it depends. The level of scientific evidence necessary to support a claim always depends on the claim that is being made. Moreover, specific regulatory requirements may apply depending on the claim. If the product claims to ‘sanitize,’ for example, then it is possible that EPA approval may be necessary or it must meet certain FDA requirements. Of course, if the product is not regulated, the standard may differ. This is where talking things through with your counsel is most critical: the same type of claim on a different kind of product may not be subject to the same requirements. In any event, the science must closely match the requirements of the claim language. Don’t let your claim outpace the science – anecdotes from happy customers, or enthusiasm for your product, can never substitute for systematic evidence.
- Magic Language. We all love puffery – and we all think we know it when we see it. But, that isn’t always the case. Statements that are specific, quantifiable or purport to describe objective facts may not constitute puffery, regardless of how over the top the language may seem. Claims about the ‘safest’, ‘best’, ‘highest quality,’ can all require substantiation under certain circumstances. Perhaps it is just enough to merely offer the “finest” of all puffery….
- Is this a Regulated Claim? Is it possible that the product “sanitizes”, has “antimicrobial” properties, or somehow prevents or reduces the likelihood of contracting COVID-19?These statements are important ones as they may transform the product from an ordinary consumer product to a regulated product. Sanitizing and antimicrobial properties may trigger EPA review and treatment or prevention of a disease may render a product a ‘drug’ regulated by the FDA. Of course, the FTC may also assert its authority particularly if these statements are disseminated on a product website or in other forms of advertisement. It is possible that the mere existence of these words invite enforcement activity.
- Is this a Comparative Claim? The most, the best, the mostest, the bestest, the… mostest bestest? We all want to be on top, but sometimes that means a “head-to-head” comparison is necessary to substantiate the claim. Even then, it is necessary to understand that an unqualified comparison may trigger a greater level of substantiation because consumers may understand it to mean “as compared to all leading products nationwide.” Our advice: “Think before you compare” and determine the basis for your comparison – don’t just assume that everyone will understand it in the same way.
While health and wellness claims are subject to an increasingly intense level of scrutiny by competitors and regulators alike, there is little question that consumers want to know whether the products they buy are in alignment with the health and wellness goals they have set for themselves and their family. A well-crafted campaign supported by properly substantiated claims is not only a way to stay out of trouble, but a way of building deeper and more lasting engagement with educated consumers.
The global COVID-19 crisis has created dynamic shifts in how businesses source and sell goods and services. Whether those shifts are temporary or will solidify into more permanent structures ushering in a “new normal” era of consumerism, remains to be seen. As I write this, it is the weekend after Memorial Day 2020. Just yesterday, my home state of Virginia commenced phase I of a graduated reopening of the state economy, while last weekend’s headlines focused on widespread defiance of stay-at-home orders and social distancing guidelines as the U.S. death toll climbed towards 100,000 (a milestone it has now passed). It is clear that there are limits to our willingness to stay home, and that bodes well for the survival of some brick-and-mortar retailers. But brick-and-mortar retail and business in general may look significantly different in a post-pandemic world. The companies emerging stronger will likely be those that use this time to rethink who they are, what they do, and how they do it — and the ways in which they convey that message to consumers.
Faegre Drinker Biddle & Reath LLP (Faegre Drinker) launched global operations on February 1, 2020. Faegre Drinker is the combination of Faegre Baker Daniels, an international law firm with deep roots in the Midwest, and Drinker Biddle & Reath LLP, a full-service national law firm with storied East Coast origins.
With more than 1,300 attorneys, consultants and professionals in 22 locations across the U.S., U.K. and China, Faegre Drinker is one of the nation’s 50 largest law firms based on size and projected gross revenue.
We are very excited to introduce TCAMToday, Faegre Drinker’s successor to the DB®anding Blog. Our newly expanded team of over 30 T-CAM professionals will continue to provide fresh commentary on Trademark, Copyright, Advertising and Media topics ranging from anticounterfeiting to sweepstakes and promotions. Watch this space!
The Federal Trade Commission (FTC) is not hitting “like” on your influencer engagement campaign, and is down-voting your disclosures.
Earlier this month, the FTC released important new guidance targeted at social media influencers, in language designed to be read by non-lawyers, framing an often confusing legal issue for the people who need to understand it the most: the influencers themselves. These new guidelines, “Disclosures 101 for Social Media Influencers,” were accompanied by a video “Do you endorse things on social media?”, and are designed to show influencers how and when they must disclose material connections to brands to their followers.
The ability of any individual, without access to sophisticated technology, to decipher the “authenticity” of any experience is diminishing daily. Moreover, this threat to the integrity of the law goes beyond digital impersonation and “deep fake” software driven by artificial intelligence. The famous Marx Brothers line, “Who ya gonna believe, me or your own eyes?” was once funny because it was ridiculous. Soon, it will be a description of our jobs and our lives.
As we mentioned last month in our kickoff post on this topic, we are excited to dive deeper into the world of sweepstakes and promotions law. This post explores several key elements to keep in mind when formulating the official rules and abbreviated rules for a promotion.
The main goal of the official rules in any promotion is two-fold: (a) to inform participants and the public regarding the details of the promotion, and (b) to comply with a series of federal and state laws and regulations. Both of these goals are critical – no company wants to face either disgruntled participants or angry regulators.
The rules must be in place and finalized before the promotion begins. If you are running a U.S.-based sweepstakes with a total prize value of over $5,000, you may also be required to register and bond the promotion with various state agencies up to thirty days before the promotion begins. Registration will require you to submit a copy of the promotion rules, so keep in mind that in those cases, the rules must be finalized at least thirty days before the beginning of the promotion. That means the clock is ticking! Depending on the type of promotion, other state laws and regulations may also be implicated, so be sure to check well before the beginning of the promotion. Continue reading
As we proudly admit on this blog’s “About Us” page, we’re passionate about all things brand related – and what better way to promote your brand than by running a sweepstakes or contest? At a time when we are seeing the “gamification” of every part of our lives, it should come as no surprise to see that many brands now include prizes and rewards as a significant component of their consumer outreach. Where once upon a time this was a niche explored by only a handful of large companies or fly-by-night operators, today, prize promotions are seen by many of our clients as among their most effective forms of advertising.
The concept is wonderfully simple: in a prize promotion, someone enters the promotion, and someone wins a prize. Yet this basic formulation encompasses a nearly endless number of variations, including sweepstakes, contests, games, trade promotions, sales incentives and viral engagement. Some of these variants are legal; some are not. And because we have been so passionate about sweepstakes and contests for so long, we’ve decided to explain the basics in a helpful, multi-post series on the topic. There’s a lot of nuance, and it would be impossible to cover it all in one place, but we think that once we’re done you’ll be as excited about this area of the law as we are. Continue reading
This past weekend, the Brand Activation Association (BAA), a division of the Association of National Advertisers (ANA), held its 38th Annual Marketing Law Conference in Chicago, Illinois. The author, along with two other members of Drinker Biddle’s branding team, attended the conference, which is widely regarded as one of the top conferences on marketing and advertising law, with deep practical legal content. The conference was co-chaired by legal counsel from Coca-Cola, Wells Fargo, and Twitter, and speakers included representatives from Airbnb, American Express, Buzzfeed, Expedia, Facebook, Intel, Lyft, MasterCard, McDonalds, Procter & Gamble, VISA, AT&T, WPP, Mondelez, Sears and at least 30 other companies. Continue reading