Advertising Law: A Deep Dive Into Competitive Advertising and Ad Substantiation

Advertising law entails a complex analysis of the advertising claims at issue, the product being advertised, and the available data to support those claims. Especially when an advertiser seeks to compare its product to a competitor (or an entire market), counsel must be careful to ensure that the claims are appropriately substantiated. There is a complex body of authority – including FTC standards, federal case law, and National Advertising Division decisions – governing how claims must be supported, and advertisers who fail to compile the necessary data can lose the ability to effectively market their products.

This Briefing will discuss legal compliance and recent developments in the following areas:

• A refresh on the basics of advertising law, including implied versus express clams, puffery, and the need for substantiation (15 minutes)
• Substantiation study design, including sample size, blinding / placebo control, and randomization (10 minutes) 
• Analysis of study results, including statistical significance, consumer meaningful results, and crafting claims from available substantiation (10 minutes)
• Competitive issues, including selection of products / samples to test, product settings, “apples to apples” requirements, and proper use of tested products (15 minutes)
• Requirements for supporting specific claim types, including sensory claims, sales superiority claims, and health and wellness claims (10 minutes)

Who Should Attend: In-house counsel, outside attorneys, compliance, and other allied professionals with practices in advertising law

Program Level: Overview

Prerequisites: None

Advanced Preparation: None

Faculty:

Louis DiLorenzo

Davis+Gilbert LLP