Businesses making health claims about their products (e.g., foods and dietary supplements) or services (e.g., apps) should take note of new guidance that the Federal Trade Commission (FTC) released at the end of December 2022. The FTC’s Health Products Compliance Guidance replaces and updates Dietary Supplements: An Advertising Guide for Industry, issued in 1998. The new guidance (1) applies more broadly to all health-related claims, not just those related to dietary supplements; (2) builds on the FTC’s enforcement experience in this area in the last two decades; and (3) provides more detailed discussion on a variety of topics (e.g., the FTC’s “clear and conspicuous” standard and the “competent and reliable scientific evidence” standard). This alert provides a summary of the key parts of this new guidance and some takeaways for companies that are making health-related claims in their advertising.
Regulatory Framework
The FTC’s authority to prevent “unfair or deceptive acts or practices” extends to all advertising and marketing claims for health-related products. Broadly, the FTC has a mandate to ensure that 1) advertising is truthful and not misleading, and 2) advertisers have adequate substantiation for their express or implied product claims. Although advertising in this context certainly refers to more traditional forms of advertising, such as TV and internet ads, it covers all marketing techniques designed to increase consumer demand for particular products, including...
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