On May 8, 2020, Len Gordon was quoted in BioWorld on the Federal Trade Commission's (FTC) enforcement of unsupportable advertising and promotional claims for products related to the COVID-19 pandemic. According to the article, the FTC has issued a number of warning letters to makers of a variety of product types, including a letter to a manufacturer of a face brush promoted for the capacity to "fight off coronavirus."
"A lot of times, the FTC will demand substantiation" of an advertiser's claims before taking action, Gordon said, and sometimes the agency simply drops the matter at that stage. In some instances, the two parties will settle out of court, but if the advertised claims are really aggressive, and there’s a risk of harm, FTC will pursue immediate action, he said.
"You have to make sure you have the science to back up your claims," he continued, adding that if the claims are clinically substantiated, the resolution may come simply by presenting the agency with the underlying data. The FTC standard here may sound a lot like the FDA standard in the sense that the terminology used to describe that evidentiary standard is usually "valid scientific evidence," and Gordon noted that this is usually interpreted by the FTC as evidence that experts in that field would deem adequate.
Nonetheless, Gordon said, the FTC sometimes seems to decide case by case what constitutes valid scientific evidence, so advertisers are encouraged to generate evidence that passes the sniff test.
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