Natural Products Insider

NOV-DEC 2018

INSIDER is the leading information source for marketers, manufacturers and formulators of dietary supplements, healthy foods and cosmeceuticals. Since 1997, INSIDER has been serving the needs of the global nutrition industry.

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naturalproductsinsider.com 45 for example, the physician owned a stake in the company or received a percentage of gross product sales, since those facts would likely impact the credibility of the endorsement from the perspective of consumers. Both infl uencers and brands share the responsibility to disclose their relationship, noted FTC attorney Lesley Fair. "Infl uencers should clearly let people know about that connection," she wrote in a 2017 blog, "and marketers have an obligation to make sure they do—usually by educating their infl uencers and monitoring what the infl uencers are doing on their behalf." Beyond the question of disclosures, marketers must closely follow what a celebrity or other endorser is saying about its products. That's because, according to FTC guidelines, "Advertisers are subject to liability for false or unsubstantiated statements made through endorsements." FTC raised the example of an advertiser who participates in a blog advertising service and asks a blogger to try a new body lotion. The advertiser does not claim the lotion can cure skin conditions, and the blogger doesn't ask the advertiser whether there is substantiation to support the claim. (According to FTC, health and safety claims require "competent and reliable scientifi c evidence" to meet the substantiation standard.) However, FTC guidelines stated the advertiser would be "subject to liability for misleading or unsubstantiated representations" if the blogger asserted in an endorsement that the product cures eczema, and the blogger recommended the lotion to her readers living with the condition. FTC regulations and guidelines are not the only considerations for marketers when relying on endorsements. Marketers must closely track their endorsers' statements to confi rm they are not running afoul of FDA regulations. In 2015, FDA sent a warning letter to a pharmaceutical company over statements made by reality TV star Kim Kardashian. On Facebook and Instagram, Kardashian spoke favorably of her use of DICLEGIS during her pregnancy, but she omitted certain information, including the risks associated with the drug. "The social media post is misleading because it presents various effi cacy claims for DICLEGIS, but fails to communicate any risk information," FDA explained in the letter. Companies also should be careful when adopting statements about their products made by everyday people even if consumers are not being compensated at all. For example, Prochnow cited ongoing confusion over customer reviews. He uses the following test to determine whether a company should publish a customer review. "If the company was making the statement, could they say it?" the attorney asked. "And if the answer is no, then the company can't use that review in their advertising." Consider a customer's statement published on a marketer's website that a dietary supplement treated a disease. Just because the customer made the statement doesn't excuse a marketer from the law's general prohibition against selling a dietary supplement to cure, diagnose, prevent or treat a disease, Prochnow said. Legal: Endorsements "Once you use it in your advertising, it's your statement," he explained. When republishing a statement by a third party, companies must consider myriad FDA and FTC regulations. Lewis raised the hypothetical of a cosmetic company republishing the statement of a woman who wrote she looked 20 years younger after applying the company's product. Is the woman's experience typical of what consumers generally would achieve from applying the cosmetic? FTC guidelines suggest that's a crucial question in the analysis. "Does that only apply if you're using it three times a day and drinking three quarts of water?" Lewis asked. While the woman has a First Amendment right to say what she wants, an advertiser becomes subject to various rules once it chooses to commercialize her statement, the lawyer pointed out. FTC guidelines suggested an endorsement would be misleading if it simply said a woman lost 110 pounds in six months by using a weight loss product accompanied with diet and exercise, when in reality she slimmed down from 250 pounds to 140 pounds through a specifi c regime of drinking two weight loss shakes a day, eating only raw vegetables and exercising six hours a day at the gym. In a sense, the guidelines are bittersweet. They are a reminder to marketers that celebrity endorsements and other testimonials could lead to an FTC investigation and possible lawsuit for deceptive practices. But they also offer many examples for companies to lawfully advertise their products through endorsements, helping to maximize their use of Instagram, Twitter and other social media platforms.

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