Advertising Claims Substantiation

In this panel, State Attorneys General will discuss their focus on the evolving advertising and consumer protection landscape, identifying emerging areas of concern, and offering insights into the enforcement priorities for 2027.

How do you substantiate and defend advertising claims when AI is both the product and the marketer?

Artificial intelligence is transforming not only how advertising is created, but also how claims are substantiated, communicated, and challenged.

This session explores the evolving standards for AI-related claims, the risks associated with AI-generated content, and practical strategies for developing defensible marketing practices in an increasingly automated advertising ecosystem.

• Exploring how AI is reshaping claim development, testing, consumer research, and substantiation
• Determining how much reliance on AI is too much when supporting advertising claims
• Assessing when human expertise, independent testing, and traditional evidence remain necessary
• Evaluating disclosure and transparency expectations when AI is involved in the substantiation process
• Preparing to defend claims developed with AI before regulators, NAD, competitors, and courts

Consumers do not read advertising claims the way lawyers do. As courts, regulators, and NAD increasingly focus on net impression and consumer takeaway, advertisers must evaluate not only what a claim says, but what consumers are likely to understand it to mean.

In this session, attendees will gain valuable insights on protecting their brands in an environment where unsupported claims can spread rapidly and reappear just as quickly.

• Assessing how regulators, courts, and NAD evaluate net impression, consumer takeaways, and implied messages beyond the express words used in advertising
• Identifying when superiority, market leadership, and performance claims cross the line from puffery into objective claims requiring reliable substantiation
• Responding to misleading claims from marketplace sellers, Amazon vendors, influencers, and emerging brands that can quickly reappear under new identities after enforcement efforts
• Leveraging NAD challenges, platform reporting mechanisms, and monitoring technologies as resources to combat bad actors
• Balancing competitive risk, enforcement costs, and business objectives when confronting smaller challengers and fly-by-night sellers that threaten established brands

When every consumer may see a different price, what does it mean to advertise a “deal,” “discount,” or “exclusive offer”?

AI, consumer data, and algorithmic pricing models are enabling businesses to tailor prices in real time. But these practices also raise advertising law questions about whether pricing messages are truthful, substantiated, and presented in a way that consumers can understand.

Regulators are increasingly scrutinizing whether consumers know that an advertised price or promotion has been personalized based on their data and behavior. Advertisers must now consider whether savings claims, price comparisons, and limited-time offers convey an accurate overall impression when the underlying price is not the same for everyone.

This session will examine how to structure, qualify, and disclose personalized pricing claims without undermining marketing effectiveness or consumer trust.

• Understanding how regulators are evaluating personalized, surveillance, and algorithmic pricing as advertising claims
• Navigating disclosure and transparency expectations for personalized prices, discounts, savings claims, and promotional offers, and drip pricing involving mandatory fees disclosed later in the transaction
• Determining when data-driven pricing may affect the truthfulness, substantiation, or qualification of an advertising claim
• Developing practical review strategies that support personalized pricing objectives while strengthening compliance and maintaining consumer trust

During lunch, find attendees whose name badges display the same colored dot. Introduce yourself, learn who is in your group. You’ll reconvene with your group for the 2:30pm roundtable discussion.

As brands look to connect with the next generation of consumers, legal and marketing teams must determine whether advertising claims, disclosures, endorsements, and promotional techniques are appropriate for audiences at different stages of development.

This session will provide practical guidance for developing engaging youth-focused campaigns while reducing advertising, consumer protection, and enforcement risk.

• Recognizing when younger consumers may interpret product, performance, popularity, or lifestyle claims differently from adults
• Creating disclosures that younger audiences can notice, understand, and connect to the relevant advertising message
• Navigating advertising claims and endorsement risks when influencers, creators, avatars, or virtual personalities promote products to younger consumers
• Assessing how personalization and algorithmic delivery may change who receives a claim, how it appears, and the overall message it conveys
• Developing practical review strategies to create defensible youth advertising campaigns

• Addressing evolving regulatory expectations for influencer disclosures, endorsements, and material connections
• Deciding when to require pre-approval, rely on post-publication monitoring, or impose additional controls based on the creator, campaign, and claim risk
• Establishing practical guardrails for talking points, product claims, discount codes, affiliate links, and unscripted content
• Sharing best practices for monitoring creator and affiliate content at scale and escalating noncompliant, misleading, or off-message claims
• Assessing disclosure, transparency, and accountability obligations and liabilities for virtual influencers, digital avatars, synthetic endorsements, and AI-generated content

Rejoin the group you connected with during lunch for a peer-driven discussion on how companies are translating influencer disclosure requirements into workable, consistent practices across campaigns, platforms, and content formats

• How does your company vet influencers and establish claim and disclosure guardrails?
• When do you require content preapproval, and when do you rely on post-publication monitoring?
• Who owns monitoring, and how do you address noncompliant content?

• Distinguishing between subjective sensory claims and objective performance claims and determining when consumer perception testing is sufficient versus when clinical or instrumental testing is required
• Evaluating recent NAD challenges involving odor elimination, taste superiority, texture, appearance, and other sensory-based claims to understand where advertisers are getting into trouble
• Incorporating updated ASTM E2943-26 (Standard Guide for Acceptance and Preference Testing with Consumers) and E1958-25 (Sensory Evaluation Standards) guidance while identifying when additional claims substantiation is needed
• Designing consumer sensory studies, home-use tests, and preference testing that can withstand scrutiny from NAD, competitors, regulators, and plaintiffs’ lawyers
• Understanding how implied claims, net impression, and advertising context can transform seemingly subjective sensory messages into claims requiring stronger substantiation
• Avoiding common pitfalls when claims promise consumers will “taste better,” “smell fresher,” “feel softer,” or “eliminate odors,” and ensuring the evidence is a good fit for the takeaway message

• Defending PFAS-free, non-toxic, and chemical-free claims amid increasing scrutiny
• Mitigating litigation and enforcement risks surrounding recyclability, recycled content, and sustainable packaging claims
• Differentiating aspirational sustainability messaging from substantiated environmental claims
  • ESG
  • carbon-neutral
  • net-zero claims
• Adapting to evolving state, federal, and international requirements amid continued uncertainty surrounding the FTC Green Guides
• Assessing the impact of the EU’s new Empowering Consumers for the Green Transition Directive (EmpCo) on environmental claims and global marketing strategies
• Strengthening environmental marketing claims through effective disclosures, claim qualification strategies, and robust substantiation practices

• Defending Made in USA, Assembled in USA, and other American-origin claims amid heightened FTC enforcement priorities
• Avoiding misleading consumer takeaways created by complex sourcing, manufacturing, assembly, and supply chain arrangements
• Reconciling competing origin standards and disclosure requirements across U.S., state, and international jurisdictions 
  • Evaluating the impact of USMCA on country-of-origin claims
• Verifying country-of-origin claims in online marketplaces, digital advertising environments, and third-party seller ecosystems
• Responding to competitor challenges, consumer class actions, and regulatory scrutiny involving origin representations
• Building origin claim compliance programs that support business objectives while reducing enforcement and litigation risk

Consumer protection class actions and state-law claims continue to increase, while AI-related and green claims have emerged as significant areas of risk.

This session examines the advertising claim categories attracting the greatest regulatory scrutiny, highlights recent litigation and enforcement developments, and explores key lessons from campaigns that became the focus of investigations, competitor challenges, and class actions. Gain practical insights into identifying risk, strengthening substantiation, and avoiding the pitfalls most likely to trigger legal and regulatory action.

• Examining how plaintiffs, regulators, and competitors are leveraging consumer protection laws to fill perceived enforcement gaps
• Analyzing emerging litigation, regulatory, and NAD challenge trends, including recent case outcomes and enforcement activity
• Assessing why technically compliant claims continue to face scrutiny based on consumer takeaways
 
• Identifying common breakdowns in claim development, review, and substantiation that can lead to investigations and litigation
 
• Applying practical lessons and risk-mitigation strategies from recent cases

This session will provide a strategic overview of the changing health claims landscape and identify where companies may face the greatest exposure as consumer expectations, scientific evidence, and regulatory priorities evolve.

• Examining emerging claims involving longevity, immunity, gut health, mental well-being, metabolic health, weight management, and functional benefits
• Identifying the types of messages and marketing practices attracting increased scrutiny
• Assessing how consumer perception and the overall advertising context can affect how a health claim is interpreted
• Exploring the impact of evolving science, consumer expectations, and regulatory uncertainty on claim development

As advertising becomes faster, more personalized, and increasingly supported by agencies, influencers, and AI-enabled tools, companies are reconsidering how claims move from concept to approval. This session will examine how Legal, Marketing, agencies, and other business partners can collaborate more effectively, determine when legal review is necessary, and establish scalable processes that protect the company without slowing creative development.

This panel will address:

• When should Legal become involved in campaign and claim development?
• What requires individual legal review, and what can be managed through preapproved guardrails?
• Evaluating the role of AI and automated review tools in flagging potential claims, applying approved language and preserving an audit trail
• How should teams manage changes to approved content across channels and executions?
• What privilege and confidentiality issues arise when third parties participate in legal review?
• How can Legal protect the company without becoming a bottleneck?