United States: Advertising Tips For Food And Dietary Supplement Manufacturers

Last Updated: April 24 2018
Article by Mark Mansour

In the course of my career, clients have often asked for a nutshell summary of the key principles guiding the Federal Trade Commission's (FTC) action in the food and dietary supplements industries. Two decades of experience have brought these principles into clear focus and have provided a vantage point from which to assess the risks of non-compliance. While by no means a substitute for legal advice, the short summary below will, hopefully, provide a framework for understanding and complying with the bedrock principles governing advertising claims made by food and dietary supplement manufacturers.

The Cardinal Rule

The broad scope of FTC enforcement of advertising standards affects the ability of food and dietary supplements manufacturers to communicate with their customers on a daily basis. At the core of the FTC's regulatory efforts is a single, basic rule: All advertising must be truthful and non-deceptive, substantiated and not unfair.

The criteria for determining compliance with this rule relies on an assessment of how a reasonable consumer might interpret the ad in context. The FTC will consider all communication in the ad, including graphics.

In considering whether the advertiser has complied with the rule, the FTC evaluates implied as well as express claims; it examines ads for missing information that might tend to mislead the consumer; it examines the ad to determine materiality, or whether it tends to influence a consumer's decision to purchase the product and whether the evidence is sufficient to substantiate the claim. Consumer anecdotes and money back guarantees are not sufficient for the substantiation of claims.

Health claims are a common feature of dietary supplement advertising. FTC imposes a more rigorous standard for health claims. These must be supported by competent and reliable scientific evidence. We will address this in a future blog post.

Rules of Engagement

FTC looks to several criteria in order to determine when it should take action. These include the following:

  • Whether FTC has primary jurisdiction to regulate the advertising. In many cases, particularly those involving labeling, the Food and Drug Administration (FDA) has primary jurisdiction.
  • Is there a pattern of deception exhibited by the company?
  • Is there an effect on consumer health and safety, or a financial loss?

In such cases, FTC has several enforcement options. Civil penalties of varying amounts are very common. Corrective advertising is a second option. FTC employs cease and desist orders, which can have a serious effect on a company's livelihood.

Dietary supplements deserve special mention because FTC has targeted dietary supplement manufacturers, their advertising agencies, producers of infomercials and distributors and retailers. We will address the issue of supplements in greater detail in a future blog post.

Common Types of Challenged Claims

The following are some examples of claims that attract FTC attention, particularly in the absence of clear, prominent, qualifying language explaining the claim:

  • “university studies prove”
  • “90% of cardiologists….”
  • advertising showing people sneezing and coughing (i.e., advertising cold care)
  • before and after pictures (before: using walker; after: dancing)
  • a weight loss ad failing to disclose that test subjects engaged in regular exercise and diet restriction during the test period for the product
  • failing to mention side effects while referencing “without the side effects of over-the-counter” drugs
  • failing to mention the product’s effect on increase in blood pressure
  • “scientists now agree!” and “studied for years abroad” (require a higher level of evidence since these refer to a specific level of support)
  • reliance on animal and in vitro studies
  • anecdotal evidence
  • “proven”
  • “found effective”
  • relying on “traditional use” (such as “ancient folklore remedy used for centuries”)
  • reference to a book (“Miracle Cancer Cure”) in promotions for a particular dietary supplements.

FTC's enforcement priorities change periodically. However, an area of particular sensitivity is weight loss claims. FTC has cracked down on unsubstantiated weight loss claims, and we expect this trend to continue.


Advertisers are responsible for ensuring that all express and implied claims that an ad conveys to reasonable consumers are truthful and substantiated. When identifying these claims, advertisers should not focus only on individual phrases or statements, but should consider the ad as a whole, including the text, product name, and depictions. If an ad makes express or implied claims that are likely to be misleading without certain qualifying information, the information must be disclosed.

A disclosure can only qualify or limit a claim to avoid a misleading impression. It cannot cure a false claim. Disclosures have to be clear and conspicuous.

Avoiding Unwanted Attention from FTC and FDA

Some rules of the road for avoiding regulatory scrutiny include the following:

  • FTC and FDA have overlapping jurisdiction when it comes to claims for dietary supplements, over the counter drugs, cosmetics and medical devices.
  • FTC examines testimonials and endorsements.
  • FTC also regulates internet advertising.

Several different kinds of claims for FDA regulated products attract FTC attention:

  • Comparative Claims: FTC allows comparative claims as long as they are truthful and not deceptive.
  • Efficacy Claims: These must be supported by competent and reliable evidence.

“Puffery” is permitted as long as it does not make an ad deceptive or misleading. Puffery can include “an exaggerated, blustering, and boasting statement” about a product, or a general claim of superiority over comparable products.

The takeaway here is that advertising must never suggest to the average consumer that a product prevents, treats or cures a disease, or that it is better than a comparable product without substantiation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions