Homeopathic Promoters to Note FTC is Revising its Guide on Endorsements and Testimonials

By Mark Land, AAHP President

Of the thousands of homeopathic products in the marketplace, few are ever seen advertised on television — historically, the mass medium to blanket the large U.S. market of consumers with a message. The cost is generally prohibitive for our niche industry. Word of mouth recommendations based on strong satisfaction has traditionally been our strength. How else can one explain homeopathic medicines earning a place on the retail shelf through turnover next to name brands with large advertising budgets?  Social media has amplified word-of-mouth recommendations for our products. Now that the landscape of media and advertising has shifted from a few board communication vehicles to a sea of small, fragmented media with highly targeted audiences, our industry has progressed in using endorsements and testimonials to influence consumers on websites and social media. That’s why everyone must take the time to read through the Federal Trade Commission’s (FTC) proposed revisions to its “Guides Concerning the Use of Endorsements and Testimonials in Advertising.” The proposed revisions are intended to capture many of the practices that have developed in the non-traditional advertising world of “influencers.” These guides would also more clearly specify what FTC considers to be a “clear and conspicuous” disclosure when a disclosure is required.

The proposed revisions would further define what does or doesn’t constitute an endorsement(s) or testimonial(s); the difference between consumer and expert endorsements; how connections between your company and an endorser need to be disclosed; liability of the endorsers themselves; and responsibility of marketing and public relations firms. FTC also plans a more in-depth look at endorsements directed to children.

Examples include: “When a consumer buys the product with her own money under ordinary circumstances and chooses to post about it, the post is not an endorsement under the Guides because the consumer has no connection to the manufacturer beyond being an ordinary purchaser and her message cannot be attributed to the product's manufacturer. The revised example would note that the same would be true for a consumer review. Furthermore, if the consumer received a coupon for a free trial product from the manufacturer simply based upon her purchase history and if the manufacturer did not ask coupon recipients for reviews, then the consumer's unsolicited review would not be an endorsement because it cannot be attributed to the manufacturer. However, if the consumer received the free product as part of a marketing program that periodically provides free products from various manufacturers, where the consumer has the option of writing a review, the consumer's review would be an endorsement because of her connection to the manufacturer through the marketing program.”

Another topic involves “competent and reliable scientific evidence.” Advertisements using consumer or professional endorsements that speak of a product’s performance will be interpreted as representing it is effective for the purposes spoken of. Therefore, the advertiser must also have adequate substantiation, including, when appropriate, “competent and reliable scientific evidence,” for all endorsement claims (expressed or implied). Consumer endorsements themselves are not competent and reliable scientific evidence.

FTC gives an example: “A medical doctor states in an advertisement for a drug that the product will safely allow consumers to lower their cholesterol by 50 points. If the materials the doctor reviewed were merely letters from satisfied consumers or the results of a rodent study, the endorsement would likely be deceptive because those materials are not the type of scientific evidence that others with the purported degree of expertise would consider adequate to support this conclusion about the product's safety and efficacy. Under such circumstances, both the advertiser and the doctor would be liable for the doctor's misleading representation.”

All manufacturers and marketers of homeopathic products are strongly encouraged to read FTC’s proposed changes: Federal Register: Guides Concerning the Use of Endorsements and Testimonials in Advertising. AAHP will continue to monitor this activity.