Long time readers of this blog may remember my Subway Series, where I would share my thoughts about interesting ad law issues triggered by ads I'd see on my morning commute. During the pandemic lockdown, this series morphed into the Not On The Subway Series, where I talked about digital ads that intrigued me and, then, once I started commuting again, morphed again to the Back on the Subway Series. Admittedly, the subject of today's blog post is not an ad I saw on the subway, but a newsletter I read while commuting on the subway. (Seems like a good enough excuse to re-launch the series, which this ad law nerd enjoys writing.)
So, today, I read a piece in a newsletter published by one of the ad monitoring organizations (hint: not NAD). The article took aim at an advertiser because it failed to provide information about its substantiation in the ad itself or on its website.
Was it required to do so?
Not to bury the lede, the answer is generally no. An advertiser must have competent and reliable evidence that provides a reasonable basis for its claims. What evidence suffices as substantiation depends on a number of factors, including the type of claim, the product, the consequences of a false claim, the benefits of a truthful claim, the cost of developing substantiation for the claim, and the amount of substantiation experts in the field believe is reasonable. But the advertiser doesn’t -- as a general rule -- have to state its proof, or describe its substantiation, in its...
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