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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48 INSIDER November/December 2018 advertising material makes it false and misleading. Having endorsements from celebrities, such as entertainers or sports fi gures, can raise additional concerns. In an obvious commercial, a disclosure of a connection would not be required. In such situations, it is generally understood that celebrities are compensated for their endorsements. On social media, however, in many instances, because a signifi cant portion of followers might not realize that a post is a paid endorsement, it is usually best practice to disclose the relationship. A disclosure is also generally a good idea when it may not be obvious the celebrity has a relationship with the marketer. For example, if a celebrity discusses a product that she is paid to endorse on a talk show, the relationship may not be obvious and, therefore, the connection should be disclosed. On the other hand, if a celebrity mentions a product or is seen using the product, and the company does not have a relationship with the celebrity, the marketer can't post about the celebrity on its social media without the celebrity's permission. Companies are not generally permitted to use people in their marketing without permission. Most celebrities are paid for their endorsements and may not agree to have their name or likeness associated with a product, even if they have talked about it or are seen using it. As a case in point, actress Katherine Heigl sued New York drugstore chain Duane Reade for $6 million after the store posted on its Twitter and Facebook accounts a paparazzi photo of her leaving a store with the chain's shopping bags. The suit was settled under confi dential terms, but reportedly with a donation to a charity of the actress's choosing. Finally, whenever an advertiseme nt represents that an endorser is an expert or has expert knowledge, the endorser's qualifi cations must provide the level of expertise being conveyed. Moreover, the endorsement must be supported by an actual exercise of that expertise in evaluating the product. For example, if a doctor or scientist is represented as endorsing a dietary supplement, her evaluation prior to making the endorsement must have included an examination or testing of the product that would be typical for a person with her level of expertise to support any conclusions offered in the endorsement. For example, it would be insuffi cient for an "expert" endorsing a dietary supplement to base his conclusions on nothing more than a review of testimonials from satisfi ed customers in the same way that it would be unacceptable for a company to support product structure/function claims on nothing more than the reports of satisfi ed customers. If a company is considering using endorsements in marketing or engaging in social media advertising, it needs to make certain to review the information available on the FTC website and consider consulting with qualifi ed legal counsel. Steven Shapiro (steven.shapiro@rivkin.com, 212-455-9542) is of counsel to Rivkin Radler LLP (rivkinradler.com) and a partner of Ullman, Shapiro & Ullman LLP (usulaw.com). His pr actice focuses on the dietary supplements/natural products industries with an emphasis on FDA and FTC compliance issues including labels, labeling, marketing and advertising practices. Legal: Endorsements If a company is considering using endorsements in marketing or engaging in social media advertising, it needs to make certain to review the information available on the FTC website and consider consulting with qualified legal counsel. Absolute Quality, from Seed to Shelf. Since 1988 Absolute Absolute Absolute ayushextracts.com 425.637.1400 customerservice@ayush.com www.ayush.com Over 125 Products Grown on our Own Farms in a Pristine Himalayan Environment

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