Advertising Claims Substantiation

Setting the stage for this year’s conference, a panel of cross-industry in-house counsel will address the most challenging advertising and claims substantiation developments of the last year, as well as predictions for the year ahead.

Points of discussion will include:

• An analysis of key recent cases and enforcement actions by the FTC, NAD, state attorneys general, and private litigants that have shaped advertising and claims substantiation practices
• What the Supreme Court’s decision in Loper Bright Enterprises might mean for the future of FTC rulemaking
• New and upcoming regulatory guidelines expected to influence claims substantiation in the next year

As AI is revolutionizing the advertising industry, it is also bringing new challenges around ad claims accuracy, substantiation, and regulatory compliance. This panel will explore how brands can harness the potential of AI and ensure claims are transparent, truthful, and substantiated to avoid scrutiny. Join leading advertising counsel as they discuss:

• The latest trends in regulatory enforcement related to AI-generated claims, and what brands need to know to stay compliant
• The specific AI products, platforms, and practices that the FTC is closely watching and how to leverage them while avoiding scrutiny
• How to sufficiently document the creative process used to create ads when using AI, and ensuring AI-generated claims are backed by reliable data and clear evidence
• The dangers of “hallucinations” or misinformation in ads created in whole or in part by AI
• Ethical considerations of AI in advertising, including misleading personalization and bias
• Some of the most notable AI campaigns of the past year and key takeaways for maintaining compliance with evolving standards

In an era where consumer reviews, endorsements, and testimonials heavily influence purchasing decisions and brand reputation, companies face increasing pressure to ensure transparency and compliance with ever-evolving regulations. With recent new rules from the FTC reshaping how businesses can utilize influencer partnerships, customer feedback, and testimonials in their marketing strategies, this panel will dive into:

• How businesses can effectively avoid misleading or unsubstantiated advertising claims while managing endorsements and influencer partnerships
• Developing contractual parameters on what influencers and endorsers may say
• Implementing safeguards against influencer campaign liabilities, including rogue influencers who might tout unsubstantiated claims
• Evaluating the protections offered by various types of disclosures for endorsements made across different platforms and mediums (social media, websites, TikTok, podcasts, etc.)
• An overview of new state-specific laws governing child influencers and influencer compensation
• Examining specific consumer review practices that the FTC is now targeting for enforcement activity and penalties under the new final rules
• Understanding the different requirements and best practices relative to incentivized reviews, insider reviews, hijacked reviews, reviews on other third-party websites, reposted or repurposed reviews, review platforms and algorithms, etc.
• Avoiding FTC penalties: Real-world examples of how companies have navigated the gray areas of the new rules to ensure compliance

As e-commerce continues to grow, tactics like junk fees, negative option marketing, and dark patterns are drawing increased scrutiny from regulators, enforcers, and consumer advocates alike. With the FTC and other regulatory bodies cracking down on these practices, navigating the blurred lines between persuasive design and deceptive marketing is more important than ever. This panel will explore:

• The FTC’s new Negative Options Rule and their latest rules on junk fees
• How to determine when your website design and advertising practices cross into deceptive territory, and the specific tactics that are triggering enforcement activity
• How regulators are addressing junk fees, hidden costs, and sneaky add-ons and what companies must do to ensure fee transparency
• Developing a compliance plan for subscription models and automatic renewals to stay on the right side of the latest enforcement trends
• Strategies for avoiding dark patterns and implementing consumer-friendly, transparent advertising and marketing techniques

In today’s data-driven advertising landscape, in-house marketing lawyers must be equipped with the tools to confidently interpret and evaluate statistical evidence used to back advertising claims. In this session, legal practitioners and statistical experts will discuss:

• The fundamentals of reading and understanding study results
• Common statistical pitfalls to avoid in the substantiation process
• How to translate complex data into clear, defensible language for regulatory review
• How to align legal strategies with the scientific accuracy needed to substantiate claims and avoid regulatory scrutiny

As the post-pandemic health and wellness market continues to boom, consumers increasingly rely on scientific claims to make informed decisions. But with heightened scrutiny from regulators, brands must ensure that their advertising claims are not only persuasive but also scientifically substantiated. Failure to back claims with credible evidence can lead to regulatory penalties, reputational damage, and consumer mistrust.,/p>

This panel will explore:

• The heightened legal and ethical responsibilities associated with substantiating health and wellness claims
• The latest standards and guidelines from the FTC, FDA, and other authorities on making wellness claims
• Building a robust substantiation strategy: gathering and presenting sufficient scientific evidence that withstands scrutiny
• Common pitfalls and risk areas: avoiding misleading or unverified claims that could trigger enforcement actions
• Lessons from companies that have successfully (and unsuccessfully) navigated scientific validation of health/wellness claims in their advertising

Through a series of first-hand accounts, this panel will share real-world examples of marketing campaigns that went sideways, including critical lessons learned from claim substantiation failures. Benefit from hearing about common (and not-so-common) pitfalls in advertising endeavors, unforeseen challenges, regulatory missteps, and the consequences of insufficient evidence backing product claims. Attendees will gain valuable insights into how to avoid these errors and develop robust, compliant marketing strategies that protect both their brand and bottom line.