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FTC PREPARING INDUSTRY-WIDE "DECEPTIVE" ADVERTISING GUIDANCE

This article was originally published in The Tan Sheet

Executive Summary

FTC PREPARING INDUSTRY-WIDE "DECEPTIVE" ADVERTISING GUIDANCE with the expectation that the document will be ready for release within one year, Federal Trade Commission Assistant Director for Advertising Practices Anne Maher told a Food & Drug Law Institute seminar on Oct. 14 in Washington, D.C. Maher said she expects the guidance to be completed by the advertising practices staff "soon." Although the guidance will pertain to all industries, Maher said that its application to nutrition advertising would be coordinated with the FDA in the context of the Nutrition Labeling & Education Act. While FTC believes that its recent cases offer "pretty good guidance to the industry [and have] given them a good benchmark against which they [can] determine whether or not [ads] are lawful," Maher said that "with the specific prohibitions [and] specific requirements that the NLEA has . . . there's sort of a different field now . . . A case by case by case approach may not be enough." Maher outlined for the FDLI audience what she saw as the guiding principles for non-deceptive advertising: that ads be truthful; that ads not omit material information; that any ad claims be substantiated before they are made; and that implied as well as express claims be substantiated. She also said that advertisers could be held responsible for any misinterpretations "by reasonable consumers," and that advertisers can be held liable for misleading ads regardless of their intent. Regarding health claims for foods, Maher said that FTC would "want to make sure that food advertisers don't use advertising to avoid some of the NLEA requirements." Maher said she believed that "there are many areas in which it will be possible for the commission to develop a pretty clean approach to harmonization" with FDA's NLEA regulation, such as allowing certain descriptors as "low-fat" if the product fits FDA's definition of that term. But "there are other areas where it will be possible to develop a policy which won't be identical but I think will be consistent," she added. For instance, Maher said she believed "it's against the whole ethic of the commission and our case log that we could ban a truthful, non-misleading word [from an ad] simply because it hasn't been defined by the FDA officials." Advertising health claims that are sanctioned by FDA will probably fall under FTC's "safe harbor provisions, which maintain that if you follow the FDA regulations in your advertising, then you will be in compliance with the law," Maher explained. "The commission started doing that shortly after the proposed regulations came out, and I'm sure we'll continue doing it in the future." "A [health] claim that's out there that hasn't been approved by FDA is going to be a blip on my radar screen," Maher said, adding: "I'll pick up the phone and call [FDA], and see what they have to say." But she emphasized that FTC would also consult "experts outside FDA, too." A rule of thumb for nutritional advertising suggested by Maher is that "if you can't call your product 'low-fat' in the label, you shouldn't call it 'low-fat' in the ad." However, Maher said that FTC would also take "into consideration where [the agency] hasn't . . . approved [a claim], but where an advertiser goes out with a claim that was drawn from FDA's petition files. That's where I think it would be a difficult assignment." In determining the validity of an ad, "we really look at the whole mosaic," Maher told the group. Nevertheless, "requiring all those [comprehensive] disclosures in advertising, even those that are not necessary to prevent deception, may be beyond the mandate of FTC, and more, may become impractical and confusing in advertising," Maher maintained. One "important concept" that has emerged in FTC cases is "that you have to look at the science that's supporting the substantiation for your claims in the context of the surrounding body of evidence. If [the claim] is vastly different than the surrounding body of evidence, the commission is going to look at that suspiciously," Maher told the group. In addition, "you can't misrepresent the applicability of your study to your product, or generalize those results in an unqualified manner to the population," Maher said. "And this is true even if it's a healthy product." "As a practical matter," NLEA "restrictions that tell us about the label, size, type . . . really demonstrate that they are label regulations, that they weren't written to apply to advertising, and in some instances, [are] impossible to apply to advertising," especially shorter TV spots, Maher said. At the same time, "we look at a lot of copy testing and consumer research at the FTC, so we've seen instances where people will see a claim like that, with qualifications -- 'It was only one study, jury's still out,'" Maher said. "But many times consumers take a broader claim from that kind of language, and that would be one thing that we focus on. I don't think I could say that it is impossible to truthfully qualify a claim," but the commission would need to "understand the nature of the evidence," she concluded. The commission's "role is not to establish a health policy, or nutrition policy, or decisions based on what we think the policies should be," Maher stated. "Under the NLEA, the food label has been made into a powerful education tool about diet and health. In contrast, while advertising can serve an educational purpose, it doesn't have the [same] educational mandate that the NLEA does."

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