Food Marketing, Advertising, and Promotion Essentials: Ensuring Claims Compliancy and Meeting Substantiation Standards Relative to Health, Nutrition, Structure, and Function
Adam Ekonomon
Vice President and Deputy General Counsel, Marketing & Advertising
The J.M. Smucker Company
Kristen R. Klesh
Partner
Loeb & Loeb LLP
Andrew Lustigman
Partner
Olshan, Frome, Wolosky LLP
- Examining the relationship between the food product label and advertising and promotion
- Differentiating “claims made” from “claims substantiated”
- Understanding what you can and cannot say in food advertising and promotion
- Overview of food product claims and the regulatory requirements for making each:
- Nutrient and health
- Structure/function – dietary supplements vs. conventional foods
- Mental performance and focus
- Disease
- Comparative
- Calories/ingredients
- Distinguishing FDA and FTC jurisdiction and authority relative to claims substantiation in food advertising and promotion
- Identifying proofs required to substantiate product claims under FDA and FTC expectations
- Clinical studies
- Scientific evidence and testing
- Consumer surveys
- Taste and internal expert panels
- Market research firms
- Avoiding puffery
- When social media and websites can be viewed as a means of advertising and promotion
- Understanding what recent enforcement actions reveal about food and beverage marketing and advertising vulnerabilities
- Monitoring of food advertising by National Advertising Division of the Better Business Bureau (NAD)
- Children’s Advertising Review Unit (CARU)
- Exploring Lanham Act challenges relative to false and misleading claims for competitor products
- Assessing when health claims for a food product that have been cleared through FDA’s pre-market clearance procedures can be deemed unauthorized under the FD&C Act
- Identifying circumstances under which disease prevention claims for a food product may relegate that product to the status of an unapproved new drug