Date: Dec 16, 2011
Establishment claims are a particularly powerful form of advertising in which it is claimed that tests have proved (i.e., "established") the truth of material facts about a product or service, such as its effectiveness, performance, taste superiority, etc. These claims usually are scrutinized by potentially harmed competitors for any possible lack of substantiation, especially if the claims are expressly comparative.
Before making such a claim, therefore, the advertiser must take great pains to try to assure that there are in existence virtually bullet-proof test results that a jury, court, regulator, or self-regulatory agency will accept as substantiation of the test-based claims.
The pre-claim planning for such testing should take into consideration the likelihood that any challenge to the claim will be decided by one or more people who are not trained in the applicable scientific area. Therefore, the more obvious the validity of the substantiation, the easier it will be to discourage any competitive challenge in the first place or, if necessary, to win the challenge. Here are some ways to maximize the appearance of reliability of your testing:
For more information on this and other Advertising Law matters, please contact Dick Leighton at 202.434.4220 or at email@example.com.