Remember those ads from the 80s where an actor would start a medicine endorsement with the disclaimer: “I’m not a doctor, but I play one on TV”? A recent Federal Trade Commission (FTC) settlement order relating to the marketing of the dietary supplements CogniPrin and FlexiPrin is a good reminder about the importance of using clear and conspicuous disclosures in advertising and ensuring that health-related claims are supported by competent and reliable scientific evidence.
Last February, the FTC and the Maine Attorney General filed a joint complaint against nine defendants for allegedly making false and misleading claims related to the dietary supplements CogniPrion and FlexiPrin that were not backed by reliable scientific evidence. The complaint also alleged that print and Internet ads featured fake testimonials about the products, radio ads gave the impression that they were educational segments rather than advertorials, one of the company’s expert endorsers failed to examine the products and disclose that he received a percentage of sales revenue, and the ads failed to disclose material conditions relating to a “free trial” period.
Six of the defendants settled with the FTC and the Maine Attorney General in March, and the remaining three (the marketing company, its owner, and its expert endorser) entered into a settlement on August 23. The most recent settlement order imposes a $6.5 million fine and prohibits the defendants from making health-related claims that are not supported by “randomized, double-blind, and placebo-controlled” testing. In addition, the defendants are required to disclose whether their endorsers receive compensation, and customers must give express consent before being enrolled in continuity programs.
The FTC has warned marketers and influencers about their obligation to clearly and conspicuously disclose their relationships when endorsing products, and has filed complaints against a number of businesses for lack of adequate endorsement disclosures. In addition, as we previously reported, the FTC recently sent warning letters to several influencers advising them about their obligations. As the recent settlements over the marketing of CogniPrin and FlexiPrin make clear, marketers should also ensure that all material terms of their offers are clearly and conspicuously disclosed and that any health-related claims are backed by reliable scientific evidence. Companies that fail to do so may find themselves subject to some strong medicine from the FTC.