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