Many of us struggle with clarity and focus on how much specificity is best in a claim. If you name a competitor in a superiority claim, you are likely to awaken his/her wrath. But if you use a more vague general superiority claim, you may be taking on a burden to substantiate your claim as to a significant majority of the market.
And it can get even hazier and harder to implement when it comes to health claims. As readers of this blog know, the Federal Trade Commission’s (FTC’s) standard for health claim substantiation has never been more exacting. (See here and here) The NAD opts for the more traditional competent and reliable evidence standard rather than a specific number of clinical studies but that is still not an easy standard to meet. A recent NAD case involving supplements designed for those with Attention Deficit Disorder (ADD) provides a good lesson that adopting “wiggle room” language is unlikely to reduce that burden.
ADD-care advertised that its product “may add focus, clarity, and alertness without negative side effects.” It “may offer natural supplement relief safely and quickly,” and the product has ingredients “that have been tested and especially selected and may help relieve hyperactivity, distractibility, impulsiveness and general memory difficulties in both children and adults.” To keep this blog focused and on task, we will address the use of the word “may” to introduce these claims.
It is likely appropriate to add “may” to your health claims if your testing and support show that your product has been shown effective for some but not all users. But “may help” or “can assist” or similar words cannot be used to mean “the product might help you but no promises and we really aren’t even sure.” Occasionally we are told by clients who are surprised that they are being investigated because they responded, “Well, I said it may help. I never said it would [work].” This is not a winning argument at the FTC or NAD. Why? The FTC in the Windows cases and in connection with the update to the Testimonial Guides suggested “results not typical” disclosure implies U.S. consumers are an optimistic sort who believe they can overachieve. If you promise benefits “up to” a certain amount or show weight loss testimonials of losing 50 pounds, the FTC believes some consumers will see this as a promise and not an aspirational ceiling benefit. Now bringing back expectations to a reasonable level, in most cases it can be accomplished with a clear disclosure (e.g., average weight loss 1-2 lb/week). But there is still a requirement for any health claim that the product “may” help that the advertiser must have good solid evidence that the product provides such benefits.
ADD-Care submitted testing, but we are proudly staying on task and focusing simply on the “may help” portion of the decision. NAD summed it up nicely: “The mere inclusion of words such as ‘helps to’ or ‘may help’ in a product’s performance claims does not relieve the advertiser from providing a reasonable basis for the message that the product will deliver the claimed benefits to consumers. A reasonable takeway from the advertiser’s claims that it ‘helps to’ relieve symptoms is that it implies a consumer will experience some improvement in these symptoms.”