Workshop B — Social Media Claims Substantiation Master Class: Formulating a Playbook for Making Compliant Claims on Social Media in a Time of Evolving Agency Guidance

Jun 24, 2024 1:30pm – 05:00 PM

David Mallen
Co-Chair, Advertising Disputes

Loeb & Loeb LLP

Kat Dunnigan
Davis Wright Tremaine LLP

Jennifer Fried
Partner, Advertising Practice Lead
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

Ensuring proper claims substantiation for a dietary supplement product is often a complex, fact-specific process – and one which is drawing increased scrutiny from both regulators and the plaintiff’s bar alike. 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 workshop, we will closely examine how dietary supplement companies can effectively utilize the latest marketing methods while ensuring that claims about their products are thoroughly substantiated, appropriate disclosures are made, and advertising practices are in line with the latest regulatory guidance. Topics of discussion will include:

  • Determining how to compliantly promote your product and win consumer confidence while staying out of trouble with the regulators
  • Examining how the latest FTC substantiation guidance, endorsement disclosure guidelines, and enforcement activity around use of consumer reviews are impacting social media and other online marketing by supplement companies
  • Examining FTC’s final set of revised Endorsement Guides
    • What has changed in terms of substantiation requirements and what areas of focus are on the horizon for the Commission?
    • What are the implications for industry?
  • Understanding the implications of the FTC’s new Proposed Rule on the Use of Consumer Reviews and Testimonials
  • Determining the scientific evidence necessary to meet FTC claim substantiation standards
  • Examining how the latest regulatory guidance and enforcement activity impacts influencers and advertisers on platforms like TikTok, Instagram stories, Snapchat, and online retailers like Amazon
  • Developing best practices for:
    • 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
  • Influencing your influencers: preventing rogue influencers from touting unsubstantiated claims and implementing safeguards against influencer campaign liabilities