The U.S. Food and Drug Administration (FDA), the Federal Trade Commission (FTC), and the National Advertising Division (NAD) have been warning companies to avoid making fraudulent claims or implying that their products will protect them from the Novel Coronavirus Disease 2019 (COVID-19).
Section 43(a) of Lanham Act prohibits literally false, false by necessary implication, and impliedly false advertising. Lately, implied claims have been attracting the attention of regulators who are carefully evaluating whether advertisers are implying their products can help protect consumers against COVID-19. As part of its routine monitoring program, the NAD initiated action in a series of cases where they found impliedly false advertising (See cases #6371, #6380, and #6381).
In case #6371, Your Superfoods, Inc. promoted their Immunity Bundle through video advertising. In the video, the company owners referenced COVID-19 as a reason for why taking supplements to boost immunity is so important. Although the company never stated that their supplements could prevent COVID-19, the NAD believed the video may communicate a false or misleading message that it can prevent COVID-19. The advertiser agreed to discontinue the video.
In Case #6380, the NAD took issue with an Instagram post made by Provezza Health, Inc. about their Elderberry Syrup. In particular, the company stated that their syrup provides “Potent Immune Support During a Severe Season” and that “Provezza is highly concentrated to deliver antioxidant action for immune defense.” Although COVID-19 was never mentioned in the Instagram post, consumer reviews on Amazon.com touted the product’s benefit in treating COVID-19. The Instagram post was permanently discontinued, but the NAD also encouraged the advertiser to engage with the Amazon.com reviews to ensure that consumers do not take away the false impression that their syrup will protect users against COVID-19.
In case #6381, the NAD also took issue with a social media post made by INID Research Lab, LLC for its Continual-G Glutathione Enhancer. In the post, a woman wore a face mask with accompanying text that read “Strong IMMUNITY Needs Glutathione” and “Building your immunity during these times in more important than ever.” The NAD expressed concern that the imagery in the post may communicate a false or misleading message that taking Continual-G Glutathione Enhancer protects users against COVID-19. The advertiser agreed to remove all suggestive imagery.
These decisions highlight the importance of considering consumer take-away when creating advertising. When in doubt about what an advertisement communicates to consumers, consider hiring a false advertising survey expert to conduct a false advertising survey. Courts almost uniformly hold that the most common and generally accepted means of establishing consumer take-away is through surveying actual consumers (as long as the false advertising survey is a product of reliable principles and methods). Additionally, advertisers should be especially cautious of making health-related claims given the current environment.
Applied Marketing Science (AMS) has extensive experience conducting false advertising surveys. Our false advertising surveys have been submitted and accepted as evidence in litigation matters involving a broad range of products and services.
To learn more about AMS false advertising survey experts and our Litigation Support services, please contact Jason Och at joch@ams-inc.com.