Reed Smith Client Alerts

On December 20, 2022, the Federal Trade Commission ("FTC") issued a guidance document to update and replace the FTC’s 1998 brochure entitled Dietary Supplements: An Advertising Guide for Industry. The new publication, Health Products Compliance Guidance, ("New Guidance") draws on the issues raised in the more than 200 cases involving false or misleading advertising claims relating to dietary supplements and other health-related products that the FTC has settled or adjudicated since the release of its 1998 document. While many of the legal fundamentals remain unchanged from the 1998 version, as the title of the New Guidance suggests, it is meant to apply more broadly to all health-related products and claims, including food, over-the-counter drugs, homeopathic products, health equipment, diagnostic tests, and health-related apps – not just dietary supplements. Additionally, the New Guidance reflects updates from other FTC guidance documents, such as the FTC’s guidelines on endorsements and testimonials and a 2016 enforcement policy statement on homeopathic drugs.

In an accompanying document to the New Guidance, the FTC describes it as “what may be one of the most important documents you’ll read in 2022.” As the New Guidance will undoubtedly affect marketers of health-related products, below is a snapshot of the New Guidance’s key provisions and most notable updates:

  • “Clear and conspicuous disclosure” standard:

    The New Guidance underscores that when the disclosure of qualifying information is necessary to prevent an ad from being deceptive, advertisers should present the information clearly and conspicuously, so that it is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers.

    The New Guidance also clarifies that the type of disclosure should match the type of claim; e.g., if a claim is made only visually or audibly, the disclosure should at least appear in the same way – but a simultaneous visual and audible disclosure is more likely to be clear and conspicuous.
    Notably, with regard to disclosures in digital media (e.g., social media, the internet or interactive media), the New Guidance appears to differ from the FTC’s guidance in its 2013 .com Disclosures: How to Make Effective Disclosures in Digital Advertising, in which the FTC states that where it is not possible to make a disclosure in a space-constrained ad, “it may, under some circumstances, be acceptable to make the disclosure clearly and conspicuously on the page to which the ad links.” The New

    Guidance, however, unequivocally states that the “disclosure should be unavoidable; disclosures made through hyperlinks are avoidable.” As such, for health-related claims, disclosures made through hyperlinks are considered inadequate. The New Guidance also states that the “ultimate test” of whether a disclosure is effective is the net impression that consumers take from an ad with the disclosure. If a significant minority of consumers accept a misleading claim from an ad despite a disclosure, the disclosure is insufficient.