Food Marketing, Advertising and Promotion Essentials: Ensuring Claims Compliancy and Meeting Substantiation Standards Relative to Health, Nutrition, Structure and Function

July 19, 2023 1:45pm

Miriam Guggenheim
Covington & Burling LLP

Andrew Lustigman
Olshan, Frome, Wolosky LLP

  • Examining the relationship between the food product label and advertising and promotion
  • Distinguishing “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
  • When are 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 Department of Better Business Bureau (NAD)
  • Exploring Lanham Act challenges relative to false and misleading claims for competitor products
  • Assessing when health claims for a food product which have been cleared through FDA’s pre-market clearance procedures can be deemed unauthorized under the FDCA
  • Identifying circumstances under which disease prevention claims for a food product may relegate that product to the status of an unapproved new drug