Are paid search terms about to receive a lot more Federal Trade Commission (FTC) attention? That’s the question you could be asking after the FTC last week announced a settlement with Nourish Life LLC. Defendants marketed a dietary supplement called Speak that contains among other things omega-3 and omega-6 fatty acids, vitamin E and vitamin K. According to the FTC, defendants lacked adequate substantiation for the claim that Speak would help children develop and maintain normal speech, including children who suffer from autism and verbal apraxia (a speech disorder).
The FTC’s complaint cites claims made on websites and social media as well as in direct mail, brochures, and displays at medical conferences. In addition, the complaint makes reference to paid search terms and sponsored links as one of the mechanisms by which the defendants marketed their product. The paid search terms cited included “toddler speech problems,” “help my child talk,” “autism treatment,” and “verbal apraxia treatment.”
Does this mean that paid search terms and sponsored links are now fair game for FTC scrutiny? Well like any good lawyer, we think the answer is “it depends.” The FTC in its complaint was careful to cite not only the paid search terms but also the text of the sponsored links, and the landing page consumers were brought to if they clicked on the link. In the FTC’s view, both the sponsored links and the landing pages contained false or deceptive claims. (The FTC took a similar approach in the Beiersdorf case.)
So are paid search terms going to be subject to a strict claims and substantiation standard? While everything in advertising review is context specific; in most cases, we believe the answer is likely no.
As all of us know from our own search engine experiences, consumers often do not attempt narrowly drawn and clearly defined searches. A consumer whose transmission just died might search for “transmission repair” though more likely they need “transmission replacement” or someone looking for digestive relief might search under “constipation” even though they may not fall within the strict medical definition of the term. It seems to us that advertisers should still be free to use paid search terms that attempt to capture the many different and imprecise ways consumers might search for their product or even to tempt consumers with a better, albeit different alternative. If a consumer searches for rapid and substantial weight loss, shouldn’t an advertiser be able to buy that paid search term and instead offer the consumer slower, safer, more sustainable weight loss as an alternative without having regulators accuse it of having offered “rapid weight loss?”
Of course, this means that advertisers need to pay attention to what comes next. Once you’ve put yourself in front of a consumer through a paid search term, what claims do your sponsored link make or your landing page? And perhaps, be mindful of claims that may seem ambiguous as a paid search term might be used against you in resolving any ambiguity (see the FTC’s warning here about using paid search terms to help evaluate “net impression”). Following on the example above, it will be harder to argue that an ad doesn’t promise dramatic weight loss if the search term that drove a consumer to the ad in question was “dramatic weight loss.” All of this means that in evaluating any ad campaign, it is important to review the entire consumer experience to understand how consumers and the FTC may be interpreting your claims.