Advertising health products online? Check FTC endorsement guides for dos and don’ts

Advertising health products online?

Check FTC endorsements guides on testimonials and endorsements, as FTC enforcement action can come with huge penalties.

FTC Endorsement Guides Apply to Online and Mobile Health Advertising

The basic principle of FTC action is that advertising – whether in print, online, or mobile – cannot be false or misleading.

Unfortunately, many companies naively insert product testimonials, not realizing that in the health and wellness space, claims must be support by “competent and reliable scientific evidence.”  Testimonials and endorsements can be considered as part of the claims companies make for their products.  If these are not crafted carefully, they can trigger FTC enforcement action.

The best way to gauge the extent to which endorsement and testimonials are legally compliant, or legally risky, is to review the FTC guidance and look to both the principles and the examples.

A new, modern FTC guidance document

FTC has now updated its endorsement guides to include online and social media, such as You Tube.

FTC explains in The FTC Endorsement Guides: What People are Asking that endorsements:

at their core, reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading. An endorsement must reflect the honest opinion of the endorser and can’t be used to make a claim that the product’s marketer couldn’t legally make.

This requires total transparency in terms of informing the consumer about connections between the endorsement and the company (which FTC refers to as “the marketer”).

For example, if a blogger gets paid to market a vacation to Dubai, that financial interest should be disclosed in a way that is clear and conspicuous to the viewer.

FTC makes clear in its Q&A that the Endorsement Guides apply to “all media, whether they have been around for decades (like, television and magazines) or are relatively new (like, blogs and social media).”  The guidance “is the same as for websites or blogs.”

As to whether FTC will go after the company or the blogger, FTC says that it typically goes after the company; however, FTC retains discretion to take enforcement action against an individual endorser.

Some of “2.0” points FTC makes include:

  • If an association hires you to be its “ambassador” and you promote the association online, you must disclose the financial connection.  (FTC goes into specifics such as saying that if you post the conference’s badge on your Twitter profile, a disclosure on your profile page isn’t sufficient to inform consumers of your financial interest.)
  • You can be engaged in promoting a product whether you use words, images, or otherwise communicate that you like and approve of the product.
  • Think common sense.  Even if your Facebook page shows your employment, you should make the disclosure if you promote one of your company’s products on the page.
  • If you’re a celebrity, you may or may not need to post your financial affiliation on every Tweet.  FTC says that making the call could be “tricky” so FTC recommends disclosure.

Good news for bloggers

Some limited good news:

  • “If you write about how much you like something you bought on your own and you’re not being rewarded, you don’t have to worry.”
  • But there are situations where you should disclose – for example, if you’re getting a discount on a future purchase as consideration for making the mention, that’s a reward.

The “Like” Button: An FTC hot button

FTC even addresses use of the LIKE button.

LIKING something is not as innocent as it seems.  FTC believes that using the LIKE feature to endorse a company’s products or services “probably requires a disclosure.”  FTC recognizes that some LIKE buttons do not allow a disclosure, so FTC encourages companies to develop LIKE buttons that allow disclosures.

FTC Guides incorporate general principles of advertising law

As to the disclosure itself, what FTC cares about is the fact of disclosure.  The words can be very simple, such as “Company X gave me this product to try….”

Also, remember that disclosures, even if couched in simple language, must be clear and conspicuous. This means disclosures must be:

  • close to the claims to which they relate;
  • in a font that is easy to read;
  • in a shade that stands out against the background;
  • for video ads, on the screen long enough to be noticed, read, and understood;
  • for audio disclosures, read at a cadence that is easy for consumers to follow and in words consumers will understand.

Another general principle that FTC emphasizes here is that an endorsement must represent the accurate experience and opinion of the endorser.  (Think, for example, about Linked In endorsements.  How many people mindlessly click when asked to endorse someone they don’t know for something that is associated with that person due to an algorithm?).

FTC also covers such things as:

  • online review programs
  • soliciting endorsements
  • an advertiser’s responsibilities for what others say in social media – especially, others who are members of a company’s “network”
  • an advertiser’s responsibility for what its PR firm says about the advertiser online
  • intermediaries and “influencers”
  • affiliate or network marketing (for example, a “buy now” button is not a disclosure
  • expert endorsers who make claims outside of traditional advertisements (for example, on a television show)
  • employee endorsements

“Results not Typical” isn’t good enough anymore

‘Added to the list is an endorsement that many health and wellness companies utilize: testimonials “that don’t reflect the typical consumer experience.”

Here, “results not typical” or individual results may vary” is not sufficient.  The advertiser must:

  • have adequate proof to back up the claim that the results shown in the ad are typical, or
  • clearly and conspicuously disclose the generally expected performance in the circumstances shown in the ad.

For example, if an ad shows a woman touting that she lost 50 pounds in 6 months with WeightAway, and consumers can’t generally expect to get those results, FTC says that the ad should say how much weight most consumers can expect to lose in similar circumstances.

More to review

The FTC FAQs above are only part of the picture.  It’s also important to read the guides, as they contain concrete examples of common scenarios that get healthcare companies in compliance trouble.  The WeightAway example showcases how precise FTC can be around language.

We regularly counsel companies on marketing language and ways to reduce legal risks during a careful websites review.  Call us for an in-depth review or more streamlined spot-check of your testimonials and endorsements.

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Michael H Cohen Healthcare & FDA Lawyers

Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.

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