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Hundreds of companies cautioned about unsubstantiated health-product claims

Posted 28 April 2023

The Federal Trade Commission (FTC) has sent notices to approximately 670 marketers of over-the-counter drugs, homeopathic products, dietary supplements, and functional foods. The notices indicated that they did not reflect any assessment as to whether the recipients have engaged in deceptive or unfair conduct. However, they warned that the recipients should avoid deceiving consumers with advertisements that make unsubstantiated product claims and said that the FTC will not hesitate to use its authority to hand violators large civil penalties. The notices refer to the FTC staff’s recently issued “Health Products Compliance Guidance.”
Reference: FTC warns almost 700 marketing companies that they could face civil penalties if they can’t back up their product claims. FTC press release, April 13, 2023

The notices outline specific unlawful acts and practices, including:

  • failing to have a reasonable basis consisting of competent and reliable evidence for objective product claims
  • failing to have competent and reliable scientific evidence to support health or safety claims
  • failing to have at least one well-controlled human clinical trial to support claims a product is effective in curing, mitigating, or treating a serious disease
  • misrepresenting the level or type of substantiation for a claim
  • misrepresenting a product by stating that it has been scientifically or clinically proven

The notices were sent with a copy of a previously approved notice of penalty offenses regarding the use of endorsement and testimonials. The offenses include:

  • falsely claiming an endorsement by a third party
  • misrepresenting whether an endorser is an actual, current, or recent user
  • using an endorsement to make deceptive performance claims
  • failing to disclose an unexpected material connection with an endorser
  • misrepresenting that the experience of endorsers represents consumers’ typical or ordinary experience

Source: Consumer Health Digest #23-16, April 16, 2023

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