The FTC requires all advertising to be truthful and backed up, meaning that all claims in the advertising must be substantiated. How do they assess this? They have a variety of ways. Just like we discussed with the California regulations before, the FTC will consider whether information omitted from an ad will mislead or deceive consumers. The FTC looks at claims that are “implied” as well as explicitly stated in the advertising. The FTC will also judge whether the claims in the ad are supported by evidence.

This is a key concept as it relates to FTC oversight of healthcare advertising. Anecdotes or testimonials from customers and clients are not sufficient evidence to support a claim, nor is offering a money-back guarantee. The FTC actually imposes a higher standard on claims in health advertising than it does on claims in other advertising, and in general health claims must be substantiated by competent and reliable scientific evidence. We saw an example of this just earlier this year, when the FTC issued a warning letter to two companies who claimed their supplements could treat cancer and Alzheimer’s. Quite predictably, the FTC took the position that these claims were false advertising and began its enforcement action accordingly.

Now here’s one positive aspect to keep in mind, and that is the FTC allows so-called “puffery” in healthcare advertising. “An exaggerated… and boasting statement” or a statement that makes a non-specific claim of superiority over the other options or the other competitors, is okay if it’s commonly understood as an expression of opinion. But this exemption is not an excuse to get complacent about the legal risks your business could be facing. It always pays to have your website and marketing materials reviewed by an experienced healthcare attorney, and our legal team is here to assist.