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.
These rules were illustrated in a recent recommendation by the National Advertising Division, a voluntary advertising self-regulatory body administered by the Better Business Bureau. The product in question was VitaPulse, a nutrition supplement manufactured by Princeton Nutrients LLC. VitaPulse combines several fairly well-known antioxidants—including NAC, PQQ, and CoQ10—to purportedly help maintain healthy cardiovascular function.
Princeton’s website contained several customer testimonials on their experiences with VitaPulse. These testimonials were not solicited or paid testimonials—they were either unsolicited feedback or were responses to an online survey. It is assumed that the customers were accurately representing their experiences with VitaPulse in their testimonials.
Some of these testimonials, however, contained claims that could not be supported by competent and reliable scientific evidence. For example, two testimonials claimed that VitaPulse reduced their blood pressure, which suggests to would-be customers that VitaPulse will lower their blood pressure too. Princeton lacked competent and reliable scientific evidence supporting the implied claims in the testimonials, and thus the NAD recommended that Princeton discontinue the offending testimonials. Princeton accepted and agreed to the recommendation.
Here’s the bottom line for those selling products or services in health- and fitness-related fields: carefully evaluate any testimonials you plan to publish, and make sure that you have competent and reliable scientific evidence (i.e., credible scientific studies) to support the precise health-related claims made in the testimonials. If you cannot support the claims made in the testimonial, you should not publish the testimonial and risk opening yourself up to a deceptive advertising claim under the Federal Trade Commission Act or its equivalent state law counterparts.
