MMR Strategy Group » Claim Substantiation

Don’t Cry Over Spilled Milk: Lessons for Claim Substantiation Surveys from the NAD’s Malt-O-Meal Cereal Decision

Dominique Romanowski — Tue, 07 Jul 2015 22:38:55 +0000

In a recent decision, the National Advertising Division of the Better Business Bureau (NAD) recommended that the Malt-O-Meal Brands Company discontinue advertising relating to certain claims for breakfast cereals. The challenger was Post Foods. Although the two companies have since merged, the NAD decision still illustrates the importance of who to survey in claim substantiation surveys, and where the interviews should be conducted.

Background for the Claim Substantiation Survey

In advertising for several of its cereals, the Malt-O-Meal Brands Company (MOM) claimed that in national taste tests, some of its cereals were preferred over the comparable Post cereals. Among other claims, MOM used substantiation surveys to support claims such as, “National Taste Test WINNER Fruity Dyno-Bites preferred over Post Fruity Pebbles” and “Malt-O-Meal Dyno-Bites Cereal Preferred Over Post Pebbles Cereal.” The claims in question were used on packaging, and on television, Internet and point-of-purchase advertising.

Post challenged the claims, maintaining that, (among other issues) the preference claims were unsupported, despite MOM’s substantiation survey. Post maintained that the survey did not meet industry standards for taste test superiority claim substantiation, as outlined in the American Society for Testing and Materials’ (ASTM) Guide for Sensory Claim Substantiation. Among other flaws, Post alleged that the survey did not interview the correct universe of consumers and was not conducted in the correct geography. NAD agreed with Post and recommended that MOM discontinue its national taste preference claims. Among other issues, NAD considered who was interviewed and where the survey was conducted.

Who to Interview in Claim Substantiation Surveys?

When it comes to research in support of claims about product performance, typically, interviews focus on the user. For preference or liking claims, the ASTM Guide states in paragraph 5.1.1 that, “Hedonic (liking and preference) claims should always apply to the user population.”

Post objected to the test methodology used to support MOM’s claims, saying that results did not accurately reflect the demographics of those who consume the product. MOM’s taste preference claims involved brands such as Fruity and Cocoa Dyno-Bites, Fruity and Cocoa Pebbles, Honey Buzzers and Honey Comb. The taste test interviewed men and women between the ages of 30 and 64 years old. Post claimed that consumers under the age of 35 make up a large percentage of users, between 38% and 82%, depending on the brand. NAD agreed with Post and found that the survey sampled the population to whom the ad was targeted and not the population that uses the products.

What could MOM have done differently? They could have included younger users in their survey. Young adults are easily recruited in mall for research such as taste tests and there are companies specialized in recruiting teens and tweens. While the costs might be higher to survey a younger audience, it is usually feasible to recruit enough respondents.

Is there a scenario where MOM may not have had to survey younger users? MOM might have changed the claim to one that would say, “Shoppers prefer Cocoa Dyno-Bites over Post Cocoa Pebbles”? Perhaps in that case, the substantiation survey could have been conducted among a universe of shoppers of relevant cereals. If a large percentage of this universe is older, such as between 30 and 64 years old, this would possibly have lessened the need to interview younger consumers. While this alternative claim may have been more or less impactful with consumers, the phrasing for this new claim might have been closer to the actual survey that was conducted.

For some types of litigation surveys, shoppers instead of users are the appropriate universe. For example, for likelihood of confusion surveys, research often measures confusion between brands or packaging and involves actual and potential purchasers seeing products or advertising. In that case, shoppers may be among the target audience.

Where to Conduct Claim Substantiation Surveys?

When it comes to surveys to substantiate preference claims, it is important to consider the scope of the claim and the geographic distribution of the target sample. The ASTM Guide states in paragraphs 5.2.8.1 and 5.2.8.2 that preference may vary by region. When geography is relevant to a claim, it says, “A national claim should be based on a sample representing major geographic regions (North, East, Midwest, South, West, etc.). A minimum of two markets in each of the four regions should be included.”

Post objected to MOM’s test methodology because in the Northeast, MOM conducted the claim substantiation survey in only one market, rather than two. NAD agreed. It stated that MOM’s claims were based on a national taste test, referring to the preferences of the overall population of all sweetened breakfast cereal consumers and that the Northeast should have been represented by two markets.

Might claims research be run in fewer regions or markets? This could be the case if the scope of the claim is regional or if product usage is regional. However, when it comes to product usage, it is important to consider the users of the category, not of a specific brand. In this case, MOM explained that for their survey, using one market in the Northeast was appropriate given the lower distribution of their product in that region. However, in NAD’s opinion, the survey geography should have included two markets in the Northeast to represent the preferences of the population of category consumers, not just MOM cereal users.

What if the Who and Where of Users are Unknown?

This case illustrates that in claim substantiation research surveys, the demographics and geographical distribution of users is important. Large consumer goods companies, such as MOM and Post, often have detailed information about user demographics, which they may use for marketing.

What about the company that wants to do research to support claims in a product category where user demographics are not readily available? How would they know who and where to survey?

One way is to use an Omnibus study. This is a quantitative study where questions on many subjects are asked at the same time among a panel of respondents with a demographic profile representative of the U.S. population.

Let’s say you wanted to do claims research with users of sunscreen but don’t know their age or geographic breakdown. In the Omnibus study you could ask respondents if they use sunscreen. Results would include a profile of respondents answering yes they use sunscreen, including information such as their age, gender, income, and geography. This might indicate who and where to conduct your claims survey.

This NAD decision provides insight about the importance of selecting who and where to survey for claim substantiation research. The decision illustrates how the survey universe should reflect users along key demographics such as age, gender, and geography. There must be a good reason for leaving out a key group, or you might find yourself with the survey equivalent of crying over spilled milk!

Dominique Romanowski
Vice President
MMR Strategy Group

The post Don’t Cry Over Spilled Milk: Lessons for Claim Substantiation Surveys from the NAD’s Malt-O-Meal Cereal Decision appeared first on MMR Strategy Group.

[White Paper] Critical Research Steps and Core Principles of Claim Substantiation

Bruce Isaacson — Tue, 24 Mar 2015 19:54:30 +0000

Claims are the foundation to convey the benefits of products and services in today’s crowded marketplace. Advertising substantiation provides supporting evidence for claims made in locations such as ads, point of sale materials, brochures, and packaging.

This paper discusses how such evidence must be gathered for claim substantiation when consumer perceptions are involved.

You’ll learn the core steps involved in claim substantiation, and the principles that help guide each step, including how to:

Decide which claims to test

Select which products or services to test

Conduct claim substantiation research and analyze claim substantiation data

Select claims to use in the marketplace

Click here to access white paper.

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Do Food Labels Cause Consumer Confusion About Expiration Dates?

Bruce Isaacson — Tue, 18 Feb 2014 07:47:05 +0000

Have you ever thrown away milk because the “sell by,” “use by,” or “best before” date on the carton expired? Did it smell bad? Taste bad? If it seemed fine but you were confused about what a date meant, you may not be alone. A survey was conducted in September, 2013 by the Harvard Food Law and Policy Clinic and the Natural Resources Defense Council (NRDC) that led to the report, “The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America.” This report suggests that many consumers are confused by expiration dates on food labels.

The authors describe consumer confusion over the meaning of terms such as “sell by,” “use by,” and “best before” on food products. For example, the authors discuss “sell by” dates, which are a tool for retailers to use in stock control. “Sell by” dates indicate the date by which a grocery store should no longer sell an item, so that the item can have shelf life after a consumer purchases the product. In reality, “sell by” dates are not meant to communicate with consumers, nor do they indicate the food is bad on that date. (Speaking from personal experience, I’m sure I have thrown food out on a “sell by” date.)

By contrast, the report also discusses dates labeled “best before” or “use by,” which are often the manufacturer’s estimate of the date after which food will no longer be at peak quality, rather than a date on which the food has become spoiled or unsafe.

This topic raises some of the same issues involved in claim substantiation because dates on food labels provide a type of claim about the shelf life or longevity of a food item.

Food Waste and Consumer Confusion Over Expiration Dates

The report cites sources indicating that about 40% of food in the United States goes uneaten, with Americans wasting 160 billion pounds of food each year. The report also points out that the production of wasted food has a variety of negative consequences – it costs American households money, adds to landfills, wastes fresh water, and diverts food that could have gone to families who are “food insecure.”

It also suggests that better policies and practices for date labeling on food could help reduce waste and improve food safety.

As Americans have moved away from farms and become used to buying food from sources such as supermarkets, they have become less knowledgeable about their food. According to the authors, the current system of expiration dates does not sufficiently distinguish between dates that are related to food quality (whether the food is of good quality) versus food safety (whether the food is safe to eat). At the same time, the dates do not provide feedback about the conditions under which the food was kept.

Regulating Expiration Dates on Food

The report describes a patchwork of federal and state regulations that govern food labeling, involving the Food and Drug Administration, the Federal Trade Commission, the U.S. Department of Agriculture, as well as a host of state agencies and the U.S. Congress.

It describes how labeling regulations can vary across states. Here are a few examples using milk:

Florida: All milk and milk products “shall be legibly labeled with their shelf life date,” but shelf life date is never defined.
California: Milk is required to have a date that the processor decides is the date “to insure quality, such product is normally removed from the shelf” but sale after that date is not restricted.
Montana: Milk must have a “sell by” date within 12 days of pasteurization, while Pennsylvania requires it within 17 days.
New Hampshire: A “sell by” date is required for cream but not milk.
New York, Texas, and Wisconsin: Among many other states, these states have no requirements for date labels on milk or dairy.

Possible Actions to Reduce Consumer Confusion on Food Labels

The report offers several recommendations to help standardize and clarify the food date labeling system across the U.S.:

Make “sell by” dates invisible to consumers, as they are business-to-business communications and may be mistakenly interpreted by consumers as safety dates.
Establish a more uniform, easy to understand date label system that communicates clearly with consumers. Such a system might use more standard and clear language, include “freeze by” dates, remove or replace quality-based dates on (non-perishable) shelf-stable products, place date labels in a predictable location on packages, and use more transparent methods to select dates.
Increase the use of safe handling instructions and “smart labels” that use technology to provide additional information on the product’s safety.

Consumer Behavior and Confusion Over Food Expiration Dates

In my opinion, this is obviously a very complex problem, one that involves a wide range of federal and state authorities, as well as food manufacturers and consumers. Some pundits have interpreted the report as suggesting that manufacturers are intentionally misleading consumers into throwing away food so they will buy more, but I think the issue is far more complex than that.

While there may appear to be incentives for manufacturers to get consumers to throw away food and buy new items, there are also incentives for manufacturers to keep consumers safe by maintaining a risk-averse approach to dates on food labels.

When considering expiration dates on food labels, as with any advertising claim or with any statement made on consumer products, consumers are an inherent element that must be considered in any potential solution. Consumer behavior in regards to food tends to be driven by attitudes and habits. As the report discusses, consumers should be educated, and should educate themselves, about food safety and expiration dates. Information on food labels is only useful to the extent that consumers take the time to read it, and have sufficient background to know what it means.

Dr. Bruce Isaacson
President
MMR Strategy Group

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Don’t Miss! Advertising Claims Support: Case Histories and Principles

Elesia Kreinces — Thu, 07 Mar 2013 07:47:43 +0000

Many of MMR Strategy Group’s clients increasingly find that claim substantiation and advertising substantiation are important areas of focus for their marketing communications.

Dr. Bruce Isaacson, President of MMR Strategy Group, will be speaking at the Advertising Claims Support: Case Histories and Principles conference presented by The Institute for Perception, April 8 – 10, 2013, at The Greenbrier in White Sulphur Springs, WV.

At the conference, Dr. Isaacson will discuss how surveys are used to substantiate advertising claims and what is required to substantiate or refute a claim.

Other speakers at this multi-day conference include a host of experienced attorneys, researchers, and industry authorities, including:

David Bernstein, Litigator – Debevoise & Plimpton, LLP
Chris Cole, Litigator – Crowell & Moring
David Mallen, Deputy Director – National Advertising Division (NAD) of the Better Business Bureau
Kat Dunnigan, Senior Staff Attorney – National Advertising Division (NAD) of the Better Business Bureau
Nancy Felsten, Advertising & Marketing Lawyer – Davis Wright Tremaine, LLP
Don Lofty, former Internal Counsel – S. C. Johnson & Son, Inc.
Lawrence Weinstein, Litigator – Proskauer Rose, LLP

Dr. Daniel Ennis, President of The Institute for Perception has stated that, “How a survey or product test is planned, executed and interpreted is often the persuasive element in an advertising claim dispute.” This conference will help attendees understand how to design, implement, and analyze surveys for claim substantiation and advertising substantiation.

The post Don’t Miss! Advertising Claims Support: Case Histories and Principles appeared first on MMR Strategy Group.

When It Comes to “Up To” Claims, Make Sure You Have the Right Substantiation

Bruce Isaacson — Mon, 11 Feb 2013 06:18:55 +0000

We’ve all heard ads that make “up to” claims, such as “save up to 50%,” or “lose up to 10% of your body fat.” This post describes what these claims mean and how claim substantiation is conducted with these types of claims.

What are “up to” claims?

“Up to” claims, like other types of claims, are governed by the Claims Substantiation Principles set forth by the Federal Trade Commission. These principles for claim substantiation dictate that companies must be able to substantiate statements made in their advertising. In other words, if your company makes a claim about your product, it must be able to back up the claim.

An “up to” claim is a statement used to advertise a product containing the phrase “up to” in reference to an outcome generated by the product. Like other types of claims, the FTC’s position on “up to” claims is that before a company can make a statement about its product, the company must have a “reasonable basis” to support the claim.

What does the FTC say about “up to” claims and advertising substantiation?

The FTC’s definition of a “reasonable basis” depends on several factors relevant to claim substantiation. For example, the product, the type of claim, the cost of developing substantiation for the claim, the benefits of a truthful claim, the consequences of a false claim, and the definition of “reasonable” by experts in the field are some of the factors taken into consideration in claim substantiation (or advertising substantiation) matters.

The FTC’s position references a published study they commissioned in May 2012 examining how consumers responded to “up to” claims. The study was conducted in conjunction with an FTC matter involving five home window replacement companies who claimed their product would save homeowners “up to 47%” in energy costs.

According to the FTC, the study shows that when a company makes “up to” claims, many consumers are likely to expect that they personally will achieve the maximum “up to” results. This FTC ruling led the commission to implement a new standard on “up to” claims. As of today the FTC’s position is that marketers “who advertise these claims should be able to substantiate that consumers are likely to achieve the maximum results promised under normal circumstances.” In a future post, we will provide information about how the study was done and give our opinion.

Why is claim substantiation important to advertisers?

The FTC released the “up to” study to provide guidance to companies regarding how to make claims. They also sent out a clear message to advertisers to expect some scrutiny when using “up to” claims. Companies who use “up to” claims should proceed with caution and make sure that they have evidence to fulfill the “reasonable basis” requirement. Among other sources, such evidence can come from advertising substantiation surveys.

Dr. Bruce Isaacson
President
MMR Strategy Group

The post When It Comes to “Up To” Claims, Make Sure You Have the Right Substantiation appeared first on MMR Strategy Group.

FAQs About Advertising Substantiation and Substantiation Surveys

Cheryl Jaffe — Thu, 11 Oct 2012 06:40:54 +0000

Advertising substantiation (also known as claim substantiation) describes a process intended to provide supporting evidence for claims made in advertising, point of sale materials, brochures, packaging, and other types of marketplace communications.

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.

Cheryl Jaffe
Director of Client Development
MMR Strategy Group

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How Many Industries are Affected by Claim Substantiation?

Bruce Isaacson — Tue, 19 Jun 2012 07:20:28 +0000

In past posts about claims substantiation, such as this post entitled “Why Claim Substantiation Matters“, I have written about industries that are currently involved in debates over claim substantiation.

This is the start of what will eventually be a running list of places where claim substantiation is affecting consumers, businesses, and industries.

Battles over claim substantiation are particularly complex because they touch two contradictory goals: protecting consumers in the marketplace from deception and confusion, while protecting marketers’ rights to market.

An Update on Sunscreen

I’ve written about the FDA’s efforts over sunscreen, trying to establish a consistent set of rules and labels to govern terms such as sunblock (to be banned entirely) or water-resistant (to be allowed but only with information about how long the sunscreen works). The new requirements, which were to take place in June of 2012, are now delayed to December. You can read about it at NPR here, or at BusinessWeek here.

Pizza and Labeling

Many of you have no doubt heard about efforts to establish and/or strengthen requirements that chain restaurants indicate caloric and/or nutritional content of their menu items. This item concerns a more complex item: pizza. On the one hand, a 12” medium pan pizza at Pizza Hut has 2,000 calories and 4,720 mg of sodium. On the other hand, perhaps it is unlikely that a single person would eat all 8 slides in the medium pan pizza. Also, efforts to label pizza are made much more complicated by the fact that pizza is an item that is customized by the consumer, and customization can substantially change nutritional content. As reported by Nation’s Restaurant News, the pizza industry has recently started The American Pizza Community to address menu labeling requirements. Stand by for more as it happens.

Dr. Bruce Isaacson
President
MMR Strategy Group

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Lessons in Claim Substantiation from the Pom Wonderful Decision

Bruce Isaacson — Thu, 31 May 2012 09:39:45 +0000

As far as claim substantiation is concerned, I think this case should be filed under, “Can they really say that?”

You may have read in the news recently that Pom Wonderful, a marketer of pomegranate juice, was recently ordered by the Federal Trade Commission to cease from certain types of claims in its advertising. The judge, in a 335-page ruling, found that Pom Wonderful did not have adequate substantiation for claims that their pomegranate juice can prevent or treat ailments including heart disease, prostate cancer, and erectile dysfunction.

In a highly unusual response, Pom Wonderful quoted sections from the judge’s ruling, using that text in advertising. You can see the ads and a summary of the case in this article from the New York Times. You can also see the ruling, the ads, and a press release from Pom Wonderful at a site set up by Pom Wonderful, pomtruth.com.

This case has a long history. The owners of Pom Wonderful have had impressive success with marketing companies such as Fiji Water and the Franklin Mint. According to the ruling, they bought a 100 acre pomegranate farm in 1987, and now have 18,000 acres of pomegranates under cultivation.

In September of 2010, the FTC charged Pom Wonderful with making false and unsubstantiated claims that their pomegranate juice will prevent or treat heart disease, prostate cancer and other illnesses. Although the owners of Pom Wonderful have invested heavily in scientific research, the FTC concluded that the research was insufficient to substantiate the claims.

The judge’s decision was long in part because the volume of evidence on both sides was voluminous. The owners of Pom Wonderful have spent $35 million on a host of medical experts, some quite famous and distinguished. The matter also involved marketing experts on both sides, a linguist, and even a survey.

Pomtruth.com shows selected statements from the ruling, such that those that discuss the health benefits of pomegranate juice, or Pom Wonderful’s scientific evidence. Marion Nestle, a Professor at New York University who studies food and nutrition issues, has provided an interesting analysis comparing the statements that Pom displays side by side with text in the judge’s decision that immediately followed the sections quoted by Pom.

Professor Nestle believes that the ads quote the ruling out of context. I’ll leave you to judge for yourself.

This matter has likely not yet reached a final conclusion, as appeals are likely. In the meantime, there are some lessons to learn for matters involving claim substantiation and false or misleading advertising:

Advertisers must have substantiation in place before they make a claim.
The level of substantiation for a claim must closely match the message or messages that the average consumer would take away from the ad.
The standards for survey research in these types of matters are far different than the standards for commercial research. Surveys for claim substantiation or false/misleading advertising must be designed and conducted in a way that will withstand close scrutiny from highly qualified experts.
Government agencies, such as the FTC, take seriously their role to protect consumers from claims they view as false or misleading. However, the question of exactly what a company can say, and exactly what should be done to prevent an unsubstantiated claim, is complex, combining elements of the law, marketing, and science.

Dr. Bruce Isaacson
President
MMR Strategy Group

The post Lessons in Claim Substantiation from the Pom Wonderful Decision appeared first on MMR Strategy Group.

Standards for Claim Substantiation Surveys

Bruce Isaacson — Fri, 11 May 2012 10:18:40 +0000

“What are the standards for a claim substantiation survey?” Clients often ask this question when they are contemplating a claim substantiation survey in general. The question comes up during discussions about advertising claim substantiation or about claims used in packaging, on point of sale materials, or during sales presentations. I am also asked this question when discussing litigation matters involving issues such as false or deceptive advertising.

Often, the question is asked in search of a clear standard that will describe exactly how to conduct a claim substantiation survey or a litigation survey. This article presents some of the sources I consult more commonly for matters involving claim substantiation, substantiation surveys, and litigation surveys on topics such as deceptive advertising.[1] After listing the sources, I will provide some general thoughts regarding the standards for designing and executing claim substantiation surveys and litigation surveys.

The Federal Trade Commission

The FTC has issued a number of policy statements relating to claim substantiation. For example, see the “FTC Policy Statement Regarding Advertising Substantiation.” This statement, among other things, states that advertisers must “…have a reasonable basis for advertising claims before they are disseminated.” The “reasonable basis standard” is well-known and depends on a variety of context specific factors, such as “the type of claim, the product, the consequences of a false claim, the benefits of a truthful claim, the cost of developing substantiation for the claim, and the amount of substantiation experts in the field believe is reasonable.” The FTC has also published other materials relevant for claim substantiation. For example, see “Substantiation: The Science of Compliance” or “Advertising Substantiation Principles.”

The Federal Judicial Center

The Federal Judicial Center has published the Reference Manual on Scientific Evidence. The manual includes the “Reference Guide on Survey Research.” Written by Professor Shari Seidman Diamond, the Reference Guide outlines a series of criteria for evaluating survey research that is used in court. The document raises a series of questions to consider relating to topics such as the purpose and design of the survey, population definition and sampling, and survey questions and structure. The document provides helpful guidance on survey-specific issues, including broad questions such as the purpose of the survey, and detailed issues of survey execution, such as validation or the rotation of question and response choices.

McCarthy on Trademarks

Published by Westlaw, McCarthy on Trademarks and Unfair Competition analyzes trademark law, including issues relating to topics such as deceptive advertising and infringement. This is a multi-volume sourcebook, frequently cited and well-respected. Sections present citations of articles and precedents on specific topics, including how the surveys were conducted and how the results were interpreted or accepted by courts.

American Society for Testing and Measurement

The ASTM publishes the “Standard Guide for Sensory Claim Substantiation,” which is available for purchase. This is a technical guide that describes specific practices to substantiate sensory or perceptual claims. The guide addresses both comparative and non-comparative claims, and is particularly helpful in describing the types of statistical tests that should be used in claims. The guide is written with claim substantiation in mind. As the ASTM’s description states, “The objective of this guide is to disseminate good sensory and consumer testing practices. Validation of claims should be made more defendable if the essence of this guide is followed.”

The Trademark Reporter

The Trademark Reporter is a peer-reviewed journal that frequently publishes articles relevant to substantiation surveys and litigation surveys. Some of the articles describe when certain kinds of surveys should be used. TMJ is published by INTA, the International Trademark Association. As INTA states on its website, The Trademark Reporter is “…the world’s only scholarly journal dedicated solely to trademark law and related topics.”

There are many other sources that could be listed here, as I have presented only a small sample of the many sources relevant to substantiation surveys and litigation surveys. There are also a variety of sources maintained or published by private sources; for example, many large marketing companies have policies that govern the use of words such as “free”, “most”, “better”, or “leading”.

As I look across these sources and others that I often consult, I’d offer these general thoughts:

Claim substantiation surveys: Claim substantiation surveys are different from the kind of marketing surveys that are used for purposes such as tracking brand progress or measuring brand image. Substantiation surveys are typically more tightly focused on a smaller number of key issues, and are designed with certain elements specifically needed for claim substantiation.
Research standards: None of these sources tells you exactly how many surveys to conduct, but they do present standards and guidelines that may be relevant in setting sample size, selecting respondents, using controls, or other issues. Often, these guidelines must be interpreted by a qualified expert or experienced attorney.
Statistical testing: One thing all sourcebooks agree upon is that statistical testing for claim substantiation should be done at the 95% level of confidence.

[1] Caveat: These sources should be consulted by a qualified expert or an experienced attorney. Just because a source is listed here does not mean it is always correct or applicable for any given situation.

Dr. Bruce Isaacson
President
MMR Strategy Group

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Why Claim Substantiation Matters

Bruce Isaacson — Fri, 11 May 2012 09:20:41 +0000

“Claim substantiation” refers to an activity that is very important for marketers, and very straightforward in concept: providing evidence that the statements made or implied about products or services are, in fact, true.

Marketers and sales activities routinely make all sorts of claims. As consumers, we encounter claims every day on items such as product packages, product labels, advertisements, sales brochures, public relations materials, billboards, point of sale materials, and other locations.

Across these many locations, different types of claims require different types of data for substantiation. Some claims can be substantiated by engineering or scientific data, such as the number of seconds it takes a car to accelerate from zero to sixty, the hard drive capacity of a new computer, or the square footage of an apartment. Such claims are measured relatively objectively, using standard units of measurement such as seconds, gigabytes, and feet.

Measurements are relatively objective because even if the units of measurement are standard, sometimes how those units are presented leaves interpretation up to the consumer. For example, does the square footage of an apartment reflect only that particular apartment, or does it also include an allocation for common areas, such as elevators and stairwells? Do the gas mileage ratings of a car reflect the actual mileage an average driver can expect to receive, or rather mileage in specific situations or certain conditions?

Questions about the interpretation of claims can be simple, but have complex answers. For many authorities who adjudicate such matters, the answer to the question should focus on what the statement means to the average consumer. Claim substantiation surveys can provide key evidence and support.

Other claims require non-scientific, subjective data, based on consumer attitudes and perceptions about the taste or performance or quality of a product. For example, which peanut butter tastes crunchiest? Which yogurt is preferred by children? Which shampoo leaves your hair most shiny? Which skin lotion has the most appealing scent? These questions are often answered not with engineering tests, but rather with substantiation surveys in which consumers try and rate products.

A wide range of agencies and authorities have a say, either directly or indirectly, in making sure that claims have substantiation. For example, a company that makes claims may find that it needs to substantiate or defend claims in the federal court system, or before agencies such as the Food and Drug Administration or the Federal Trade Commission. The Better Business Bureau operates a voluntary entity, called the National Advertising Division, which allows companies to resolve disputes in a system that can be faster, less adversarial, and easier than federal court.

In short, claim substantiation matters. Here are examples of some high-profile claim substantiation cases that have appeared in the news recently. The examples demonstrate the obligations of marketers to clearly communicate facts backed by real evidence, and show how disputes can arise regarding what a statement means to the average consumer.

Do certain foods provide health benefits? Lately, many food manufacturers have made claims related to the health content of the foods they make. For example, some foods claim to improve brain health, reduce cholesterol, provide essential vitamins, lower sodium, enhance digestion, or provide other benefits. As food marketers have increasingly seen “functional foods” as an opportunity and a priority, regulators at agencies such as the FDA and the FTC have taken more interest, as have the competitors of companies making claims. Click for The New York Times article.

How much skin protection does sunscreen provide? For a simple product, sunscreen can be complicated for consumers at the retail shelf. There is a wide range of sunscreens on the market, positioned for uses such as a day at the beach, outdoor sports, swimming, everyday protection, protection for children, and others. After 33 years, the FDA recently established new rules to clearly define the testing protocols that can support certain types of claims. Along the way, familiar words such as “sunblock”, “waterproof”, and “sweatproof” have been banned. Click for The New York Times article.

Does water prevent dehydration? The answer to this seemingly simple question has been quite complicated in Europe. The European Commission was asked if makers of bottled water could claim on their label statements including that “regular consumption of significant amounts of water can reduce the risk of development of dehydration. The European Foods Standard Authority concluded that the statement was misleading, in part because having too little water in the body “was a symptom of dehydration and not something that drinking water could subsequently control.” The dispute hinges upon consumer perceptions, such as whether the statement suggests that bottled water provides special benefits against dehydration. Click for The Telegraph article.

Which wireless carrier has the best coverage? In the United States, AT&T and Verizon have spent millions of dollars on advertising that discusses which company’s coverage is best and how its coverage compares to the other carrier. For example, Verizon ran a series of commercials called “There’s a Map for That”; AT&T argued that the commercials unfairly depicted AT&T’s coverage. Much of the dispute hinged on considerations of what claims consumers inferred from the commercials. Click for The New York Times article.

Who has the best riding mowers? Last year, Sears found itself trailing rivals such as Home Depot in the important category of garden care and home repair. They decided to fight back by providing reasons for consumers to shop at Sears rather than Home Depot or Lowes. Such “comparative ads” are increasingly commonplace in the marketplace, as companies directly tell consumers the reasons why they should shop them rather than offshore merchant account their rivals. Click for The New York Times article.

Dr. Bruce Isaacson
President
MMR Strategy Group

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