Truth in advertising? US self-regulation program ends, global watchdogs issue warnings

14 May 2020 --- Consumers continue to face a torrent of information – true and false alike – meaning it is often coming down to advertising watchdogs to decipher fact from fiction. Throughout the week, US and UK authorities have both issued warnings to companies for falsely implying their products can have an effect on viruses, while the Australian Department of Health’s Therapeutic Goods Administration (TGA) has published advice helping consumers to identify a “dodgy” health product advertisement. However, the Council for Responsible Nutrition Foundation (CRNF) and the BBB National Programs’ National Advertising Division (NAD) are ending their joint US-based self-regulatory initiative.

“The responsible dietary supplement industry recognizes the role truthful and accurate advertising plays in leveling the playing field for honest advertisers and in providing consumers with accurate information about products they rely on to improve their health and wellness. Although the CRN/NAD program has come to its end, our partnership with NAD continues,” says Megan Olsen, Vice President and Associate General Counsel of CRN. 

The program, which will now conclude on July 1, was launched in 2006 to monitor and promote truthful and accurate advertising for the dietary supplement industry. It has closed more than 360 cases, including topics ranging from weight loss and sports performance to sun protection and tinnitus. According to NAD, its unique ad-monitoring and peer-to-peer process encouraged cooperation and allowed companies the opportunity to voluntarily change non-compliant behavior before facing potentially serious consequences from the Federal Trade Commissioners (FTC) and other law enforcement agencies. 

Each monitoring case or challenge provides advertisers a written decision explaining the review with instruction and guidance for future advertising if changes are needed. According to the program, filing a challenge with NAD is a lower cost option than litigation and typically moves much faster than a court decision. Meanwhile, CRN encourages industry to stay vigilant of suspect advertising and consider filing challenges against companies making egregious claims in the dietary supplement marketplace.

“CRN and NAD’s dietary supplement advertising review program has played a key role in self-regulatory efforts and has contributed to creating a marketplace that consumers and industry can trust. Responsible industry’s participation has been critical to the program’s success in the past and we urge companies to remain supportive of NAD’s continued role and file challenges against companies making unsubstantiated or deceptive advertising claims,” continues Olsen. 

More recently, NAD developed the Fast-Track Single Well-defined Issue Fast Track (SWIFT) program to provide companies with an even faster method to address particular advertising challenges. Examples of challenges that may be eligible for the SWIFT program include those in which the material connection between an influencer and advertiser is not disclosed; those with content that looks editorial but is really an advertisement; misleading sales and pricing claims; and simple express claims.

In recent months, the outbreak of COVID-19 has created increased urgency around the monitoring of health claims.Watchdogs around the world crack down on scammers
In recent months, the outbreak of COVID-19 has created increased urgency around the monitoring of health claims as nutrition “scammers” attempt to cash in on fears, including in the colloidal silver space. To date, the US Food and Drug Administration (FDA) has warned 48 companies for selling products that misleadingly represent the products as being safe or effective for the prevention or treatment of COVID-19. Meanwhile, the US state of Oregon recently adopted stricter measures to crack down on COVID-19 claims. 

Across the Atlantic, the UK’s Advertising Standards Authority (ASA) warned two companies for claims related to immunity and viruses. In the case of The Chuckling Goat, the food products provider had featured a poster calling itself “The Gut Health Experts.” Next to this, the poster included “What’s your best defence against any virus? Boost your immune system. Quick and free – Live Gut Health Advice.” ASA also points to further questionable content on the company’s website.

“We considered that consumers who were already familiar with the Chuckling Goat brand would most closely associate it with its kefir-based food products. In that context, we considered they would interpret the claims in the ad as relating to the Chuckling Goat food products. Consumers who were, however, unfamiliar with the brand, we considered, would understand from the ad that Chuckling Goat was offering advice, linked to gut health, about how to prevent catching viruses,” states ASA. 

The watchdog concluded that the claims implied that Chuckling Goat’s food products prevented, treated or cured human disease, which was prohibited under the Code. As a result, the ads cannot appear again in the same form. 

Warnings about vitamin shots and “influencers”
ASA also addressed a promotional email from aesthetic clinic PCK Skin, trading as Skinspace, which featured a subject line offering a discount in the “fight against viruses.” Within the body, the email was advising people to book vitamin D and B12 shots to support the immune system and lung function. It also stated that they aid faster recovery from illness and viruses. 

ASA took issue with the advertising of prescription-only medicines to the general public and argued that the advertising gave the impression to recipients that the vitamin D and vitamin B12 injections being sold were effective in helping to prevent or treat coronavirus. The advertisement can not appear again in the form complained again and PCK Skin will no longer promote prescription-only medicines to the general public. 

Finally, TGA is warning Australian consumers that if a product seems too good to be true, then it probably is. It highlights that common claims that may be red flags include being 100 percent effective, a miracle cure, harmless or free of side effects. It also warns of consumers following the advice of people who are not health professionals, such as social media “influencers.” 

Last month, NutritionInsight reported that sports nutrition’s mainstreaming is leading to the spread of inaccurate information, although there are new marketing opportunities in harnessing the power of influencers.

Edited by Katherine Durrell