Preface

xi

PREFACE

What is advertising claim substantiation?

In a way, it’s all fairly simple. Claim substantiation refers to the

obligation of advertisers to ensure that the messages they communicate

about their products or services are truthful and not misleading. In

practice, meeting this obligation can be very challenging for marketers

and their legal counsel. There are several reasons for this. First, the law

that governs advertising claim substantiation is drawn from a variety of

different legal practice areas and disciplines. Regulatory enforcement

(under the FTC Act and state consumer protection statutes), litigation

(Lanham Act cases and consumer class actions) and industry self-

regulation (ASRC self-regulatory programs) each contribute to the

growing body of advertising law and approaches to claim substantiation.

Additionally, the obligation to substantiate claims is driven by a

threshold inquiry: What is the claim? Because advertisers are legally

responsible for both express and implied claims, this question of

communication and perception can be a crucial first step. The changing

nature of digital media poses a further challenge. Finally, claim

substantiation is complicated by the very flexibility of the legal standard.

As a general matter, advertisers are required to have a “reasonable basis”

for their claims. What kind of evidence, and how much evidence, is

needed to form a “reasonable basis,” can be highly fact -specific. But

there are signposts and sources of guidance if the practitioner knows

where to look.

The purpose of this handbook is to provide legal practitioners with

an introduction to the law, principles and challenges of claim

substantiation. Although the emphasis is on the law, a theme that

emerges is the idea that claim substantiation entails the interplay between

law, science and communications. The guide provides legal principles,

examples and numerous suggestions for further research. The question of

what constitutes adequate claim substantiation is often a scientific one

and many of the answers come from science, from product testing and

scientific expertise, rather than from law. Proper evaluation of claim

substantiation does require attorneys to consider the larger world of

advertising and consumer protection law. Topics such as privacy and

promotions are sometimes touched upon, but the handbook’s focus is on

the legal issues that relate to claims—the express and implied statements

made in advertising about a product or service. The handbook draws

upon the experience of some of the nation’s leading experts in