When making product performance claims concerning drugs, health, and health aids, companies recognize that they must be able to provide reliable evidence that supports those claims. Amassing a body of evidence to substantiate performance claims can be costly in terms of money and time. Rather than paying for product testing or delaying the launch of an advertising campaign, relying on ingredient studies can seem like a cost-effective option. However, a recent case decided by the National Advertising Division ("NAD") focuses on challenges related to that approach.
In In re: New Nordic USA, Inc., Case #5606 (June 23, 2013), the NAD determined that the advertiser's reliance on ingredient studies was insufficient to support the advertiser's product performance claims. As a result, the NAD directed the advertiser to discontinue and modify certain claims based on ingredient studies.
That case involved a dietary supplement containing a number of different ingredients. To support its claims, the advertiser did not conduct any product testing on the advertised product. Instead, it relied on studies and printed scientific publications related to individual ingredients in the supplement.
After reviewing the submitted material, the NAD found that certain studies were not specifically relevant to the claims made in the advertisement and involved sample sizes that were too small. Additionally, the NAD declined to consider the advertiser's submission of a study abstract, noting that abbreviated format precluded evaluation of the study's reliability. Finally, the NAD declined to follow the published scientific opinions of a European regulatory body, finding those opinions differed from the advertising claims and were more lenient when compared with the "far more guarded position" and "considerably more negative view" of the U.S. National Library of Medicine, part of the National Institutes of Health.
Despite the conclusion in this case, the NAD did not determine that companies are prohibited from using ingredient studies to support product performance claims. Nonetheless, relying on those studies can invite challenges based on relevance and methodological flaws, among others. Companies might consider those potential costs when assessing costs related to product testing and launch activities.