Claim Substantiation: Common Issues in Study Design That Trip Up Advertisers
Experts from Proskauer Rose LLP reviewed issues in substantiation as they related to product claims, including common problems with the test designs used to achieve substantiation and the types of tests different claims might require to stay on the right side of the law.
Key Takeaways
When it comes to substantiation, one of the more difficult aspects is understanding exactly which products need to be tested. To stay in the good graces of the National Advertising Division (NAD), it's important to remember to conduct testing on the following:
- The advertised product
- Any other products your brand's ad refers to, even implicitly, such as when comparing against the total market
- An appropriate control product
- A representative sample of the relevant products
Additionally, it is key that tests replicate real-world conditions for how the product exists or is used and that those tests follow the product usage instructions that appear on the packaging, both for your own product and for a competitor's. Ideally, tests will be conducted independently and use blind study participants, including covering up logos and not disclosing the company conducting the study. Taking all these steps will help your tests to reasonably avoid bias.
Health Claims Testing
Earlier this year, Pamprin was challenged on some of the claims that it made about its dietary supplement, called Botanicals, which is designed to provide women relief when experiencing their period. Pamprin claimed that study participants experienced a 30 percent improvement in PMS symptoms when taking Botanicals, while also experiencing no significant increase in body inflammation. NAD ruled that the study used to make these claims was not sufficiently reliable for the following reasons:
- Subjects were permitted to take over-the-counter pain relievers during phase one of testing.
- The study relied on survey results of the subjective reactions of study participants but had no control group to determine if the results were due to a placebo effect.
- Objectively measurable results from blood tests failed to show statistically significant results for biomarkers tied to inflammation.
Sensory Claim Testing
A sensory claim is a claim about how consumers themselves react to, perceive, or sense a product. For such claims, sensory testing or consumer opinion testing is appropriate. However, when a claim is about the tangible, objective results that a consumer can expect a product to provide, more objective testing is appropriate.
In an example of a case in which NAD ruled that a sensory claim was not adequately substantiated, Amope advertised that it's GelActiv shoe insole improved comfort. In its testing, 70 percent of participants agreed that the GelActiv improved comfort. However, NAD took issue with the study because there was no indication as to why 70 percent, as opposed to any other figure, should be dispositive. One way to avoid this outcome would have been to note that 70 percent of consumers said the product improved comfort, rather than leaving the claim without a specific percentage of respondents.
CLE Materials
Source
"Claim Substantiation: Common Issues in Study Design That Trip Advertisers Up." Jeff Warshafsky, partner at Proskauer Rose LLP; Jennifer Yang, senior counsel at Proskauer Rose LLP. ANA 1-Day Conference: Advertising Law, 3/20/24.