A claim, or statement about a product or service, often compares that product or service to a competitor or to an entire category of competitors.
Advertising substantiation is important, but risky if not managed well. This post draws upon MMR Strategy’s experience to answer some frequently asked questions (FAQs) about advertising substantiation. Some of these questions come from attorneys, but others are asked by marketers who wish to include claims in their marketplace communications.
Q: Why is advertising substantiation necessary?
A: Advertising substantiation is necessary because it provides a factual basis that underlies statements made in advertisements, packaging, and other types of marketplace communications.
Q: When is advertising substantiation necessary?
A: The substantiation must be in place before the claim is made in the marketplace. Guidelines published by the Federal Trade Commission (FTC) their 1984 Policy Statement Regarding Advertising Substantiation requires that “… advertisers and ad agencies have a reasonable basis for advertising claims before they are disseminated.”
Q: How do authorities such as the Federal Trade Commission evaluate advertising claims?
A: The phrase “reasonable basis” in the prior question is the key test. The substantiation must be reasonable in relationship to the claim. The FTC’s Policy Statement indicates that “reasonable basis” depends on the type of claim, the product or service involved, the risks inherent in a false claim, the benefits claimed, the cost of claim substantiation, and standards in that particular field.
Q: What about implied claims?
A: According to the FTC’s Policy Statement, marketers are responsible for claims that are made expressly, as well as claims that could reasonably be implied from marketplace communications.
Q: Who is in charge of advertising substantiation?
A: Nobody, and everybody, is in charge. There are a variety of authorities who potentially could be involved in a claim substantiation matter, including the Federal Trade Commission, the National Advertising Division (NAD) of the Better Business Bureau, federal courts, state courts, and others.
Q: How is the process of advertising substantiation evaluated?
A: Each authority may have its own processes, rules, and expectations for matters involving advertising substantiation. For example, the NAD is a voluntary body with extensive experience with advertising matters; compared to other venues such as federal court, the NAD process can be relatively quick and less expensive. However, NAD decisions are not enforceable. No matter which venue is used, the authorities will want to see reliable evidence that closely matches the claims made.
Q: What is a substantiation survey?
A: Some claims involve consumer perceptions, such as which peanut butter tastes the crunchiest, which lotion leaves skin feeling smoothest, or which bank is most trusted. A substantiation survey typically gathers data on the perceptions of customers and prospects for the purposes of advertising substantiation.
Q: Why is survey evidence important in advertising substantiation?
A: The advertiser has the burden of proof to identify the messages and impressions that a reasonable consumer takes away from an advertising message. These messages can be expressly communicated, or implied. A survey is often viewed as a reliable and scientific method to substantiate a claim, or to show whether an advertisement is truthful or false/misleading.
Q: What are the standards for advertising substantiation surveys?
A: As my colleagues at MMR Strategy have pointed out in other posts, a survey conducted for advertising substantiation has different standards and methods than survey research conducted for other purposes, such as market research. Surveys used in advertising substantiation are typically held to a more stringent set of standards and practices intended to make sure that the substantiation survey is reliable.
Q: OK, but how exactly are substantiation surveys different?
A: There are a variety of ways in which a survey for advertising substantiation can differ from other types of surveys. Without going into too much technical detail, the substantiation survey is likely shorter and more focused with fewer questions. Questions will be more focused on specific concepts, the survey will generally (but not always) be more likely to use controls, the substantiation survey will be more likely to validate responses and to employ a host of other specific operational elements.
Q: Where can I learn more about the standards for litigation surveys?
A: There are a variety of places you can turn, including some of the other posts on MMR Strategy’s website. For something a bit more technical, the ASTM’s Standard Guide for Sensory Claim Substantiation is an excellent resource as well.