FTC’s New Guidance for Marketers and Sellers of Health Products and What You Need to Know

In December 2022 The Federal Trade Commission’s (FTC) Bureau of Consumer Protection published the Health Products Compliance Guidance, its first publication in 25 years, to replace the 1998 brochure, Dietary Supplements: An Advertising Guide for Industry. The guide was compiled by FTC staff to provide guidance “on how to ensure that claims about the benefits and safety of health-related products are truthful, not misleading, and supported by science.”

With this new guide, the FTC hopes to extend guidance to all health-related products and emphasize the use of highly randomized and controlled human clinical trials. Hemp-derived products intended for human ingestion fall under the category of “health-related products” and forward-thinking cannabis product manufacturers would be wise to review this guidance, align their practices, and reach out to us if you have any questions!

Marketers and advertisers must be truthful and not misleading in their work, and are responsible for substantiating any claims conveyed through their advertisements. This includes text (labeling), product name, and any charts, graphs, and other images.

While it’s best to fully read the FTC’s new guide, here are some highlights:

• The number of industries included in upholding these standards is much more broad. The title itself conveys the depth of sectors covered by these standards. Examples include foods, over-the-counter drugs, devices, and other health-related products. The FTC makes it clear that the guide extends to all health-related claims now.
  

• The FTC’s “clear and conspicuous” standard contains a few more details. Marketers can no longer use vague phrasing such as “may” or “helps.” All claims need to be evidence-based and scientific.

• Updated guidelines on endorsements and testimonials, as well as compliance for digital content and influencer marketing. Many business clients we encounter believe that they can advertise claims if presented in the form of client testimonials - this is not the case!

It’s important to note that the FTC’s overall mission is “protecting consumers and competition by preventing anticompetitive, deceptive, and unfair business practices through law enforcement, advocacy, and education without unduly burdening legitimate business activity (FTC).” Unlike the Food and Drug Administration (FDA), the FTC doesn’t have the authority to take action against mismarketed dietary supplements. But according to the Wall Street Journal, marketers still fear these new regulations will make “marketing more difficult for direct-to-consumer and other small businesses that may not have the budget to conduct the kind of research required to make certain health claims (Wall Street Journal).”

Biggest takeaway to the updated guidelines: Whatever claims you make must be truthful and not misleading and backed by evidence-based data or human clinical trials. Otherwise, it’s probably best to find a different marketing strategy for your brand or product.

References:

FTC Announces New Business Guidance for Marketers and Sellers of Health Products

What’s new – and what isn’t – in the FTC’s just-published Health Products Compliance Guidance | Federal Trade Commission

Health Products Compliance Guidance

What Marketers Need to Know About the FTC’s Updated Guidelines on Health Claims - WSJ

Statement of FTC Chairwoman Edith Ramirez Regarding Supreme Court’s Decision Not to Review POM Wonderful Case

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