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

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