Advertising Claim Substantiation Library

At the heart of any advertising claim is an appeal to a buyer to purchase a product or service based on some type of evidence–objective or subjective–that makes a product or service more attractive than its competitor. Claims are a tool of marketing communications and product advertising, designed to align you with the intended audience for a product or service. Advertising claims in the form of visuals, written messaging, or broadcasting play a critical role in choosing certain products or services, but they can be misleading.

Do you notice yourself making choices based on what is most comfortable or familiar? This is known as the mere exposure principle. Advertisers use this principle and others to gain trust in their product or service claims. Employing spokespeople to represent products, using language to imply superiority of their product over a competitor, implying that a user is superior for using the product or service, or claims of fact are all ways that advertisers and marketers look to gain trust with an audience. When certain claims are deemed deceptive, businesses may face federal, state, and civil consequences. These consequences are designed to protect consumers and penalize companies who publish unfair, misleading, or deceptive claims. To read more on Advertising claims substantiation, see our featured white paper.

Because the law requires it and because your past, present, and future customers deserve it. Not only is claims substantiation a critical part of the advertising legal compliance process, but it is also a critical part of launching your business, product, or service. Advertising claims substantiation and legal compliance protect your company and also–when conducted as part of a product marketing roadmap–help you refine your target audience.

You need to substantiate claims–objective or subjective, express or implied. Failure to substantiate claims may result in federal, state, or civil penalties. If you are launching a product, brand, or service, and you make claims that are unsubstantiated or publish unfair or misleading advertisements online, in print, via broadcast, or otherwise, you can be brought to federal or state court or a voluntary dispute resolution forum by competitors. Claims regulatory compliance is important and failure to comply can cost you your business. Here are some ways in which an unsubstantiated ad could cause problems.

• Federal Trade Commission: The FTC has the authority to investigate, file a formal complaint, and put the advertiser into administrative proceedings that function as a court case. Additionally, The FTC may sue advertisers in federal court without first going through its administrative process, when a party “is violating, or is about to violate” a law enforced by the FTC.
• Competitors may sue advertisers in federal or state court, depending on the jurisdiction of the claim, or they may go through a non-court alternative dispute resolution forum called the National Advertising Division (NAD) of the Better Business Bureau. The NAD functions as both a mediator of disputes brought by others and an enforcement agency, bringing cases without a consumer complaint if it believes an advertiser is violating the law.
• Consumers may join cases in a class-action false advertising suit brought in federal court.
• State Regulatory Agencies: State consumer protection offices and attorneys general may bring a lawsuit under their own states’ consumer protection, false advertising, or unfair competition laws.

If you are launching a business or facing an investigation of your claims, and require research to substantiate your advertising claims, contact MMR to discuss how we can help.

Prior to publishing claims in broadcast, visual, written, or online form, you should have all claims substantiated, whether you make objective or subjective claims. An objective claim is one that can be verified by data and facts. Subjective claims must be verified by opinion–most often a survey. For example, a claim that the Z Real Estate Team sold more homes in New Orleans than any other team in 2022 is easily substantiated by sales records. But if you altered the statement to say Sellers prefer Z Team in New Orleans in 2022, this would require a survey representative of all people who sold real estate in 2022 in New Orleans. In either case, you should have an advertising compliance strategy.

An express claim is directly stated, while an implied claim is one that can reasonably be interpreted from the ad. Both types of claims need to be substantiated.

X product cleans toilets better than any in the Galaxy! or We are the best! claims are “puffery,” because they make claims that no reasonable consumer would believe. These types of claims do not require substantiation, because there is no objective way of measuring the claim. Whereas, a claim that a protein supplement has more protein than any product on the market would require substantiation because it is not exaggerated or unverifiable. Even if you think your claim is “puffery”, consulting your legal department, and possibly an advertising claim substantiation firm should be on your product launch roadmap.

Part of making advertising claims that are “reasonable” is ensuring that the audience you are targeting will understand the meaning you intend. To find this audience and determine if it understands your claim as you intend, you may need a survey. Reputable consumer research firms, whose research adheres to standards established by regulatory agencies and governing bodies, conduct surveys based on accepted design and methodologies. These surveys typically include controls, survey methods appropriate to the claim and product, clearly worded questions, a statistically adequate number of respondents, and adherence to legal or regulatory precedents.

If you would like more information, we offer complete information on advertising claims in our white paper. MMR Strategy Group has worked with companies in nearly every industry, and we would be happy to speak with you about your project and your needs.