Disclaimers in Advertising and Labeling: What Do They Do? Who Does What?

By Mark Land, AAHP President

The FTC has long recognized that marketing claims may include additional explanatory information to prevent the claims from being misleading. This is FTC’s way of saying disclaimers may cure potentially misleading claims in general or, in our case, homeopathic therapeutic claims specifically. Communicating information to consumers in the noisy marketplace is complicated and fraught with risks.

Recently the FTC held a workshop entitled “Putting Disclosures to the Test.” The workshop examined obtaining and holding the consumer’s attention, ensuring comprehension, dealing with attitudes, beliefs and perceptions, and ultimately motivating changes in behavior among consumers. A common theme emerged among presentations made at the conference and it will come as no surprise: “If you make it clear and conspicuous, they will notice and read it.”

FTC defines conspicuous as such:

“Clear and conspicuous” is a performance standard, not a font size. A disclosure is clear and conspicuous if consumers notice it, read it, and understand it. As long as consumers looking at the ad come away with an accurate understanding, companies have substantial leeway in how they communicate their marketing message.

Speakers at FTC’s disclaimer workshop addressed issues relating to the nutrition facts panel that are similar to the concepts we are attempting to communicate. Consumers understand facts better when they are placed into context. The contextual proposition must allow the consumer to put the information into perspective. For example 250 calories on a food label represents about one half of a meal or 12 percent of daily caloric intake.

Although not directly stated in the example above, the idea is that 2,000 calories is the standard energy intake per person per day. While this is largely true for adults living in North America, a variety of attitudes and perceptions pervade. For example, individuals may not believe they are average. They perceive 2,000 calories as too much or too little. Why do I go on about calories? Because it points to the nuances that disclaimer research attempts to examine.

FTC believes that the act of placing a product into the marketplace via advertising or placement on store shelves causes consumers to believe that its claims are substantiated by competent and reliable scientific evidence. Secondly, the agency believes there is no scientific evidence for homeopathic drug product claims. Perceiving such, FTC demands that advertising and labeling convey: (1) there is no scientific evidence that the product works and (2) the product’s claims are based only on theories of homeopathy from the 1700s that are not accepted by most modern medical experts.

The AAHP is embarking on a study to develop a disclaimer responsive to FTC’s Homeopathic Enforcement Policy Statement. We aim to inform consumers of the nature of the evidence supporting claims made in advertising or on labeling of homeopathic drug products. As such the goal of AAHP is to create disclaimers to ensure consumer comprehension as well as manage attitudes, beliefs and perceptions. It will be the task of individual marketers to attract and hold the consumer’s attention.