Electronic Retailer - July 2011 - 12

INDUSTRY REPORTS

FTC Forum

Proof Positive
BY LESLEY FAIR There’s a reason companies feature science and statistics so prominently in their ads. When used accurately, they can be powerful tools for distinguishing your product from the competitors. But scientific claims – especially healthrelated ones – need solid proof. The recent legal dust-up between the FTC and a major seller of household appliances illustrates that point. Through print media, online marketing, short-form TV ads and infomercials, the company touted its products’ ability to fight disease-causing bacteria, viruses, mold and germs. One infomercial claimed the company’s vacuum cleaner “has killed up to 99.9 percent of bacteria exposed to its light in one second or less,” and that its light chamber “has been tested and shown to kill up to 99.9 percent of certain common germs, plus dangerous pathogens like E. coli and MRSA.” An infomercial for the company’s air cleaner touted the product as an effective way “to protect your family from exposure to colds and flu this season in your home” because

FTC law is clear: Fine print disclaimers can’t “undo” claims prominently featured elsewhere in an ad.
the product “can capture and destroy many airborne viruses like the flu.” According to the FTC’s complaint, the company didn’t have adequate proof to back up those promises and others. To settle the lawsuit, the company agreed not to make certain claims about its vacuums and air cleaning products unless it has competent and reliable scientific evidence. That same standard will apply to future claims about the health benefit of any other product it sells. In addition, the order requires the company to pay $750,000 in redress. What messages should marketers take from the recent settlement? • Reliance on science. Advertisers wouldn’t tout technical data if they didn’t think prospective buyers found it persuasive. That’s why companies have to back up objective product claims with appropriate scientific evidence. Don’t play the disclaim game. Ads at issue in the FTC’s lawsuit featured statements linking the presence of household pests such as dust mites to asthma and allergies. Yet the ads included fine print “disclaimers” that the products are “not intended for use in the cure, mitigation, treatment or prevention of any disease or medical condition, including asthma or allergies.” FTC law is clear: Fine print disclaimers can’t “undo” claims prominently featured elsewhere in an ad. Living in the real world. Laboratory studies can be a key part of substantiation, but it’s important that clinical results translate into real-world benefits for consumers who use a product in an advertised day-to-day setting. Heed the warnings. According to the FTC, the company was aware of concerns raised by the National Advertising Division of the Council of Better Business Bureaus. When wellrespected self-regulatory groups such as NAD or the Electronic Retailing Self-Regulation Program (ERSP) wave red flags, it’s wise to re-evaluate your representations. The cost of deception. As this settlement and other recent actions demonstrate, in appropriate cases, the FTC will seek financial remedies for violations of the law.

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Lesley Fair is an attorney with the FTC’s Bureau of Consumer Protection. 12

electronicRETAILER | July 2011

Electronic Retailer - July 2011

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