The Federal Trade Commission exercises jurisdiction over “deceptive” advertising claims. A deceptive claim is a “misrepresentation, omission, or other practice that misleads the consumer acting reasonably in the circumstances, to the consumer’s detriment.” All advertising claims—both express and implied—must be truthful and substantiated, and the substantiation must exist before the claim is made in advertising. Much of the time spent in the legal review of advertising focuses on these issues.

Substantiation is evaluated using a “reasonable basis” test, and the level of substantiation that will suffice to establish a reasonable basis is determined based upon the following factors: (i) the type of product; (ii) the type of claim; (iii) the benefits of a truthful claim; (iv) the cost of developing substantiation for the claim; (v) the consequences of a false claim; and (vi) the amount of substantiation that experts in the field believe is reasonable. Viewing these factors as a type of sliding scale, it is easy to see that certain claims, e.g., how smoothly a pen writes, will generally require a lower level of substantiation than others, such as health claims, where the consequences of falsity could be grave for the consumer.

Indeed, in the area of health, the FTC’s current standard for substantiation is: “competent and reliable scientific evidence,” meaning: “tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.” Designing a legally compliant campaign requires a thorough understanding of the FTC’s requirements, the advertiser’s desired claims, and the substantiation available to support those claims.