Many health and fitness companies know that federal and state laws prohibit unfair or deceptive practices, including false advertising. But many still have the mistaken impression that they can freely post testimonials from their products’ users without running afoul of false advertising laws. After all, the thought goes, the company is merely relaying its customers’ opinions and experiences, not making general statements of a product’s effects.
Although facially plausible, this view is not consistent with false advertising law. By way of background, Section 12 of the Federal Trade Commission Act prohibits “false advertisement” for food, drugs, devices, services, or cosmetics. “False advertisement” is defined as an advertisement that is “misleading in a material respect.” 15 U.S.C. 55(a)(1). “Misleading” includes not only misrepresenting a product, but making claims about a product that are not supported by credible evidence. This is especially true of health claims, where federal law requires supporting “competent and reliable” scientific evidence.
These same standards apply to testimonials; an endorsement or testimonial cannot convey an express or implied representation that the advertiser itself could not make. 16 C.F.R. 255.1(a). More colloquially, an advertiser cannot make unsubstantiated claims by hiding behind testimonials making the same claims. If the advertiser has no competent and reliable scientific evidence that its product cures cancer, it cannot publish a testimonial by John Doe stating that the product cured his cancer. Continue Reading