The benefits of powerful advertising claims are numerous, but often powerful claims require substantiation. Innovations in technology platforms have encouraged many companies to approach claim substantiation like they approach traditional market research (with a DIY attitude). However, the standards for claim substantiation are different than the requirements for traditional market research.
Attempting to substantiate advertising claim(s) internally has led many organizations to make fatally flawed decisions where the risks are high (e.g., discontinuation of effective advertising claims, the expense of repackaging expensive goods, legal expenses, and potentially the loss of goodwill with an ever-changing consumer landscape) and the savings are minimal. Below we provide some guidelines on why you should hire a third party to substantiate your advertising claim(s).
Courts favor independent research: Courts look favorably upon research conducted by third parties. Why? The simple answer is that you are invested in the outcome. Hiring a third party ensures that the claim substantiation survey is developed without biases accidentally creeping into question-wording or research design. Additionally, a third party will ensure the claim substantiation survey is conducted in a double-blind manner and that data is analyzed objectively. There is simply face validity to hiring a company that does not benefit from the outcome.
Claims expertise: When it comes to advertising, claims must be supported by “competent and reliable scientific evidence.” As such, research for claim substantiation surveys often requires an in-depth understanding of ASTM guidelines for substantiation, NAD case law, and section 43(a) of the Lanham Act to anticipate possible weaknesses and problems. When choosing a third party to partner with, ensure that they will conduct valid research that complies with both legal and regulatory guidelines.
Expert testimony: If you are making a claim that is likely to ruffle your competitors and you expect the claim will get challenged, it is important to work with an experienced expert witness who can conduct and defend the claim substantiation research in the event of a challenge. Ideally you want to hire an expert with good credentials and deposition or testifying experience.
Why AMS: At AMS, our litigation experts are experienced at designing and executing claim substantiation research surveys and studies that comply with legal and regulatory guidelines designed to withstand potential challenges from competitors. To learn more about AMS and our claim capabilities, browse our claims development and substantiation resource guide.
