15-Second Advertising Law Alert: Appearances Can Count In Substantiation Testing

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:

  • Use an independent party to do the testing, rather than doing it in-house.
  • Use someone who has a good reputation for doing such testing and experience defending it under fire; do not use an inexperienced researcher.
  • Determine whether any legally-recognized standards or guides are applicable and, if so, direct the researcher to follow them scrupulously.
  • Require that the original test results be accompanied by report on the purpose, methods, and results that is easy to understand by non-scientists and that addresses in a favorable way any expected areas of concern.  Don't wait until a challenge and then create something that will be viewed as litigation advocacy.
  • Be prepared to show the testing/results package or a specially designed part of it to an inquiring competitor or its lawyer under a confidentiality agreement.  Precluding a challenge is the first line of defense.

For more information on this and other Advertising Law matters, please contact Dick Leighton at 202.434.4220 or at leighton@khlaw.com.