In-Person Workshop B — Claims Substantiation Working Group for the Dietary Supplement Industry: Developing a Playbook for Compliant and Effective Social Media Usage

Jun 28, 2022 1:30pm – 5:00pm

Thomas Cohn
Global Head Of Regulatory & Product
Cronos Group

Greg Fortsch
Associate General Counsel for Regulatory Affairs
Nestle Health Science

Amy Ralph Mudge
Partner
Baker & Hostetler LLP

Eric Unis
Senior Attorney
National Advertising Division (NAD)® – BBB National Programs, Inc.

Ensuring proper claims substantiation for a dietary supplement product is often a complex, fact-specific process. Even with substantial, well-designed, studies, claims and their support may still draw scrutiny from regulators and increasingly, plaintiff’s attorneys. If that were not, enough, the changing nature of advertising to use more non-traditional marketing, such as influencers, endorsements, and consumer reviews, and emerging social media platforms, presents new challenges for ensuring claims are communicated in a manner that the substantiation supports.

In this working group, we will take a closer look at the use of influencers, consumer reviews, and new forms of social media used to promote products – all with the goal of determining how to compliantly promote your products, stay out of trouble, and win consumer confidence. Points of discussion, include: 

  • Exploring how COVID-19 has changed claims substantiation for dietary supplements and understanding how this impacts direct and implied claims through various social media platforms
  • Predicting how anticipated updates to FTC advertising guidelines (e.g., environmental, endorsements/ testimonials) will impact the supplement industry
  • Determining the scientific evidence necessary to meet FTC claim substantiation standards
  • Examining the role of claims’ language, disclosures, and images in advertising on class action risk and how a claim should be substantiated to reduce class action risk
  • Taking a closer look at how the FTC and FDA view product claims made via social media and influencers
  • Exploring recent FTC enforcement activity in the dietary industry space regarding false and misleading social media claims and endorsements
    • Understanding the significance of this activity in view of the landmark Supreme Court case AMG Capital Management, which significantly limited the FTC’s ability to collect monetary penalties for deceptive advertising
  • Examining how regulatory guidance and enforcement activity impacts the influencers and advertisers on newer social media platforms like TikTok, Instagram stories, Snapchat, etc.
  • Developing best practices relative to:
    • Consumer endorsements and consumer reviews
    • Expert, celebrity, and influencer endorsements
    • Reviews on third-party websites
    • Repurposed reviews
    • Disclosures of material connections to the brand or seller of the advertised product
  • Preventing rogue influencers from touting unsubstantiated claims
  • Implementing safeguards to ensure that influencer campaigns do not create legal liabilities for your company