When making “clinically proven” claims in an advertisement, companies have learned that they must be able to offer reliable and well controlled clinical testing that can be readily verified to substantiate the claims. Meanwhile, CFOs have instructed companies that clinical testing can be very expensive. Relying on tests conducted—and funded—by third parties on similar products can seem like an attractive and cost-effective alternative. However, a recent case decided by the National Advertising Division (“NAD”) focuses on challenges related to reliance on this approach.
In In re MEDA Consumer Healthcare, Inc., Case # 5598 (June 3, 2013), the NAD determined that the advertiser’s reliance on clinical trials and other studies conducted by third parties was insufficient to support the advertiser’s performance claims. As a result, the NAD directed the advertiser to discontinue certain claims based on third party testing.
That case involved a dietary supplement containing a number of different ingredients. To supports its claims, the advertiser did not rely on studies concerning the specific dietary supplement. Instead, it relied on numerous studies related to individual ingredients in the supplement.
After reviewing the clinical trials and other studies submitted by the advertiser, the NAD found that “ingredient studies alone are insufficient to support the advertiser’s exclusivity claims” that its product was the “only” product that delivered the promised results. Additionally, the NAD found that other ingredient studies were not directly relevant or supportive of the advertising claims made. Further, the NAD determined that methodological flaws prohibited the advertiser from relying on other ingredient study results.
A choice to rely on ingredient tests instead of testing the whole product can be cost effective. However, advertisers relying on ingredient tests as substantiation for advertising claims might consider the impact of that choice on the strength of the advertising claims that can be made and substantiated.