Over 2/3 of websites are not FTC compliant – is yours?
According to a new study, roughly 70 percent of websites are not compliant with the Federal Trade Commission’s recently released native advertising guidelines.1
Way back in 2001 I started my product business with the best intentions!
I became a certified aromatherapist because I wanted to help heal the world through the power of aroma and essential oils. (This was pre-MLM hype.)
After 17 years of product manufacturing (and over 20 years writing copy and content) and dozens of friends in the Indie manufacturing arena, I learned a thing or two about compliance.
I know you…
You have created an amazing product.
You’ve done your research.
Your ingredients are clean, “natural,” organic, chemical-free.
Your web pages sing of cures, healing and living a healthy life.
You have a slew of testimonials singing the praises of how your miracle product has “cured” the ailment.
STOP. Don’t go any further!
Did you know that’s illegal?
Shut you down, seize all your products, take your computers and files kind of illegal.
“The ‘problem with skincare is that from a legal perspective it’s supposed to be cosmetic. It makes your skin look healthy and nourished, but it isn’t supposed to have any medicinal properties. This can be very frustrating for those people who entered the skincare industry with a burning passion to cure certain skin conditions – particularly for those people who have spent months of their time researching different botanical extracts and their healing properties.
Because let’s be fair, many plant extracts do have the potential to speed up wound healing, to have anti-inflammatory effects and ultimately, to heal skin conditions.
However, despite the rise of the cosmeceutical skincare product, government agencies all around the world refuse to recognize this cross between cosmetics and pharmaceutical products. And this is probably a good thing because if they did, you would most likely have to test and sell your products under rigorous pharmaceutical and medicinal standards which would make it prohibitively expensive for most people to start a skincare business.”2
Not only have I been a product manufacturer, I personally know dozens of small business who have life-changing products and services who are frustrated because they can’t figure out how to say their products “heal,” “eliminate wrinkles,” or “guarantee to increase your revenue by 150%.”
Don’t feel alone.
It’s hard, a lot harder than I expected.
But, when I got into the mindset of “should I keep going or should I let it go” I focused on the fulfilling and rewarding aspects of creating this authentic business.
The fear of getting caught
I’m a rule player – always have been.
When it comes to web copy, product descriptions, labeling and marketing content you should be a Truth in Advertising rule player too.
You’ll see a ton of quotes and footnoted content in this post because, well, how do you paraphrase legal jargon without cutting out the key info?
There is such a very fine line.
When I figured this out (way back when) I had to go and change my labeling and website copy because I’d crossed the line even though I thought I hadn’t.
The FDA is clear on this yet very vague at the same time.
The marketers of products as diverse as dietary supplements, mobile apps, cosmetics, and apparel may not think they have much in common. But if they make health-related representations, they all need sound science to support what they say.
Read the five principles to help keep your practices in line with the law.
Sellers are responsible for claims they make about their products and services. Third parties – such as advertising agencies or website designers and catalog marketers – also may be liable for making or disseminating deceptive representations if they participate in the preparation or distribution of the advertising, or know about the deceptive claims.3
When cosmetic companies bend the rules, they end up crossing the line.
FDA Warning Letters
“When the FDA determines that a cosmetic product is in violation of the FD&C Act or an applicable regulation, the FDA has authority to issue a warning letter to the manufacturer or distributor of the product. The warning letter will typically inform the manufacturer of the alleged violations and instruct the manufacturer to detail the corrective action that the 21 This publication is available free of charge from: http://dx.doi.org/10.6028/NIST.IR.8178 manufacturer intends to take. Usually, the response must be in writing and sent to the respective agency district office, as outlined in the received warning letter, within 15 working days. Failure to promptly correct these violations may result in legal action without further notice, including, without limitation, seizure of products and/or injunction against continued manufacturing operations. For more information, see FDA’s: Warning Letters Related to Cosmetics FDA’s Electronic Reading Room- Warning Letters”4
Getting caught can jeopardize your business
Goop was in trouble for products making claims which is why it’s so important as a product maker to ensure that you’re in compliance with messaging.
“Cooling and moistening, it’s used in traditional Chinese medicine to combat yin-deficient heat — some of the manifestations being restlessness, insomnia, hot flashes, or hyperactive states; it’s even been used traditionally to help stop panic attacks.”5
The group Truth in Advertising is asking California regulators to investigate Gwyneth Paltrow’s wellness empire for allegedly making health claims without sufficient evidence.7
FTC also goes after cosmetic claims that aren’t quite so flagrant. In March, the agency mailed out 10,620 refund checks totaling more than $416,000 to consumers who bought two skin creams marketed by L’Occitane. FTC contends L’Occitane had no science to back up the claim that the creams—Almond Beautiful Shape and Almond Shaping Delight—had “body slimming” capabilities.8
They have a list on their website of companies they’ve gone after (some biggies are included) and what the violations are.
And it goes public
Some of the statements in the marketing materials for certain personal care products that recently elicited FDA’s written warnings (and a public release of those warnings) made performance-related claims or claims that a product or ingredient was effective against a specific skin condition. Examples of claims that the agency found to be objectionable include the following (among others):
“Clinically proven to change the anatomy of a wrinkle.” (2/12/15 letter)
“[F]ormula combining 3 effective ingredients to help reduce redness with a long lasting efficacy.” (2/12/15 letter)
“I have rosacea on my neck when I get warm or under stress. This product really works to keep it under control!!!” (2/12/15 letter)
“Beta Glucan: Helps stimulate collagen production for added strength to the dermal matrix …” (2/12/15 letter)
“PDGF (Platelet Derived Growth Factor) to help activate wound healing fostering new skin growth, to help reduce scar tissue, and to help form stronger blood vessels.” (3/25/15 letter)
“[D]ecrease the formation of cellulite while tightening and shrinking blood vessels to help reduce the appearance of spider veins.” (3/25/15 letter)9
Why truth matters
We’ve heard it over and over again that an ever-watchful eye is out.
It applies to your product descriptions as well as any content that you’re putting out into the world in your marketing.
Unfortunately, you cannot use words such as ‘healing’, ‘curing’, ‘medicinal’ or ‘eczema’ in your product descriptions or in your product names.
You can’t refer to specific diseases by name.
You can’t call your product a healing medicinal treatment.
You’ll get into trouble in most countries around the world if you use that language in any of your marketing copy and content, and most skincare entrepreneurs cannot afford to take that kind of change with their business.
Tiptoeing the line of FDA compliance
BrandVerity, a leading provider of brand protection software, today released results from a new report: Putting Disclosures to the Test: Marketing Compliance, Bloggers, Advertisers, and FTC Requirements. The study finds that despite the Federal Trade Commision (FTC)’s increased communication and education on the guidelines concerning the disclosure of endorsements, the overwhelming majority (96 percent) of fashion bloggers failed to meet the basic standards as outlined by the FTC.11
While MLM “reps” are putting claims everywhere it’s impacting businesses that are following the rules.
It’s also critical to know the difference between a cosmetic and a drug when it comes to compliance.
“Cosmetics are: articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and articles intended for use as a component of any such articles; except that such term shall not include soap.
Drugs are: articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and articles (other than food) intended to affect the structure or any function of the body of man or other animals;
There is no doubt that a gray area exists between cosmetic claims and drug claims. If you are making cosmetics, for your own sake, make sure you stay on the cosmetic side of the spectrum.
Consumers can see through much of the puffery and hype, but it’s your job to make sure that when they read your label and marketing material, they know that your cosmetic product is just intended to make them look better.”12
The FD&C Act specifically excludes soap from the definition of a cosmetic, and it is, therefore, regulated for safety by the CPSC under the Federal Hazardous Substance Act (FHSA) 13
You can read more about the requirements in this guide.
There is a full list Government Agency Websites that you can use as a resource the see what category and agency your business falls under.
“The FTC handles most matters regarding claims in advertisements for over-the-counter drugs. The Food and Drug Administration (FDA) handles most matters regarding the labeling of OTC drugs. As with any other product, claims for OTC drugs must be truthful and non-deceptive. Given the health and safety issues that can arise in marketing these products, advertisers should take care in substantiating their claims. Depending on the claim, advertisers may be required to back up their representations with competent and reliable scientific evidence, including tests, studies, or other objective data.”14
“The Federal Food, Drug, and Cosmetic Act defines a dietary ingredient as a vitamin; mineral; herb or other botanical; amino acid; dietary substance for use by man to supplement the diet by increasing the total dietary intake; or a concentrate, metabolite, constituent, extract, or combination of the preceding substances. Unlike drugs, supplements are not intended to treat, diagnose, prevent, or cure diseases. That means supplements should not make claims, such as “reduces pain” or “treats heart disease.” Claims like these can only legitimately be made for drugs, not dietary supplements.”15
“DSHEA grants the FDA the authority to regulate dietary supplements in two important respects. First, the FDA regulates product labeling. Whenever a marketer wants to make a claim about a supplement, it must submit the proposed claim to the FDA within 30 days after its first use. Claims are limited to “general structure-function” and as a rule may not assert that a product prevents or treats disease. The FDA may stop the manufacturer from advertising the claim if it is deemed impermissible. Second, DSHEA holds supplement manufacturers to what are known as “good manufacturing practices” (i.e., industry standards for maintaining product quality). In addition, the Federal Trade Commission maintains authority over supplement advertising: Manufacturers must report truthfully what their products contain and must have proof backing up any claims they make. Finally, the Dietary Supplement and Nonprescription Drug Consumer Protection Act of 2006 requires what’s known as “adverse event reporting,” the FDA’s way of informing the public about any incidents related to a product once it is on the market. This is the same system of reporting used for FDA-approved drugs and biologics.”16
Claims, using medical terms and disease names
“The FTC handles most matters regarding claims in advertisements for over-the-counter drugs. The Food and Drug Administration (FDA) handles most matters regarding the labeling of OTC drugs. As with any other product, claims for OTC drugs must be truthful and non-deceptive. Given the health and safety issues that can arise in marketing these products, advertisers should take care in substantiating their claims. Depending on the claim, advertisers may be required to back up their representations with competent and reliable scientific evidence, including tests, studies, or other objective data.
What kind of advertising claims does the FTC focus on? The FTC pays the closest attention to: Ads that make claims about health or safety, such as: ABC Sunscreen will reduce the risk of skin cancer. ABC Water Filters remove harmful chemicals from tap water. ABC Chainsaw’s safety latch reduces the risk of injury. Ads that make claims that consumers would have trouble evaluating for themselves, such as: ABC Refrigerators will reduce your energy costs by 25%. ABC Gasoline decreases engine wear. ABC Hairspray is safe for the ozone.”18
Make sure your brand is covered
All things branded
Compliance extends to everything surrounding a brand, including:
Facebook, Twitter and other social media platforms
Retailer/Employee education materials (you can be a little more open here, but still no disease claims)
Product manufacturers’ level of compliance (both packaging text and quality standards)
Materials are only considered an extension of a brand if it has that brand on it. Accordingly, manufacturers and retailers can use third-party literature to make claims. For example, a doctor or well-known industry professional can author literature that covers all the details so that the story is told without the manufacturer saying a word.
Retailers can sell and point customers to such books, newsletters, peer reviews, white papers, booklets, etc. so long as their lit section lives at least 100 feet from the supplements. On a website, this information must be at least two clicks away.19
Made in the USA Claims
“The Federal Trade Commission monitors and enforces “Made in the USA” product claims, including those made on cosmetics. Guidance from the agency requires that products wishing to make an unqualified “Made in the USA” claim must meet the “all” or “virtually all” standard. 9 This publication is available free of charge from: http://dx.doi.org/10.6028/NIST.IR.8178 States may also enact laws that that govern when a “Made in the USA” claim can be made on a product. For example, under California’s revised law “Made in the USA”, “Made in America”, “U.S.A.” or similar labels are allowed even if a product has some foreign components. The labeling is permitted if any foreign component or part does not constitute more than 5% of the final wholesale value of the product or any foreign component or part does not constitute more than 10% of the final wholesale value of the product AND the manufacturer can show that those components cannot be obtained or produced domestically.”20
Environmental Marketing Claims
“16 CFR 260, Guides for the Use of Environmental Marketing Claims These guides apply to environmental claims included in labeling, advertising, promotional materials, and all other forms of marketing, whether asserted directly or by implication, through words, symbols, emblems, logos, depictions, product brand names, or through any other means, including marketing through digital or electronic means, such as the Internet or electronic mail. The guides apply to any claim about the environmental attributes of a product, package, or service in connection with the sale, offering for sale, or marketing of such product, package, or service for personal, family, or household use, or for commercial, institutional, or industrial use. In 2012, the FTC updated the guide sections on general environmental benefit, compostable, degradable, ozone, recyclable, and recycled content claims. It also added new sections on carbon offsets, certifications and seals of approval, free-of claims, non-toxic claims, made with renewable energy claims, and made with renewable materials claims. For more detailed information, see FTC’s: Environmental Claims: Summary of the Green Guides”21
Some claims imply disease some don’t, be careful
“You can look to medical texts and other objective sources of information about disease to determine if a label statement implies treatment or prevention of a disease. Some claims imply disease treatment or prevention because they are so intimately tied to a disease. For example, “inhibits platelet aggregation” or “reduces cholesterol” are such characteristic signs or symptoms associated with stroke and cardiovascular disease and interventions to treat those diseases that any claim about them would be an implied disease claim. Other signs or symptoms are associated with a wide range of disease and non-disease states and do not necessarily imply an effect on a specific disease. For example, although “improves absentmindedness” might imply treatment of Alzheimer’s disease and “relieves stress and frustration” might imply treatment of anxiety disorders, both of these signs also are characteristic of non-disease states. So, if there is no context linking them to a disease, they would be appropriate structure/function claims.”23
Criterion 1: Claims an effect on a disease or class of diseases (see section E, starting on page 1012 of the preamble to the rule).A statement is a disease claim if it mentions a specific disease or class of diseases. For example, a claim that a product is “protective against the development of cancer” or “reduces the pain and stiffness associated with arthritis” would be a disease claim.A statement also is a disease claim if it implies that it has an effect on a specific disease or class of diseases by using descriptions of the disease state. Examples of implied disease claims are “relieves crushing chest pain (angina),” “improves joint mobility and reduces inflammation (rheumatoid arthritis),” or “relief of bronchospasm (asthma).”24
Even customer testimonials that you advertise about claims are red-flagging
Are letters from satisfied customers sufficient to substantiate a claim?
Even statements from happy, satisfied customers aren’t sufficient to support a health or safety claim or any other claim that requires objective evaluation.
Here are some companies that have been “warned.”
When it comes to Personal Care products
The move by the FTC is the first time the agency has targeted natural claims among personal-care products, which represent a booming U.S. market worth roughly $5 billion, reported the Wall Street Journal. There’s no legal definition for “natural” and many companies are using the term even if only a portion of their ingredients are truly plant-derived. The Food and Drug Administration is currently looking into how and if that term should be defined by regulatory agencies.25
“All natural’ or ‘100% natural’ means just that—no artificial ingredients or chemicals,” said Jessica Rich, director of the FTC’s Bureau of Consumer Protection. “Companies should take a lesson from these cases.”26
If you’re claiming your products are natural, make sure your ingredient panel is up to snuff. If you use a preservative like phenoxyethanol, you have to take the natural claim off your label!
“The legal distinction between a “cosmetic” and a “drug” (or any other product that could cross into drug territory, such as a conventional food or a dietary supplement) is of critical importance because a so-called “new drug” under Section 201(p) of the Act may not be introduced into interstate commerce without prior approval from FDA. The introduction or delivery for introduction into interstate commerce of such an unapproved new drug is a violation of the Food, Drug, and Cosmetic Act. Other violations of the Act typically are involved as well. Second, a Warning Letter from FDA often represents the last chance for a company to comply with the law voluntarily before the agency initiates an enforcement action. “27
If you’re going to make a claim, you must back it up with proof
“In addition, claims must be substantiated, especially when they concern health, safety, or performance. The type of evidence may depend on the product, the claims, and what experts believe necessary. If your ad specifies a certain level of support for a claim – “tests show X” – you must have at least that level of support.”28
What kind of evidence must a company have to support the claims in its ads?
Before a company runs an ad, it has to have a “reasonable basis” for the claims. A “reasonable basis” means objective evidence that supports the claim. The kind of evidence depends on the claim. At a minimum, an advertiser must have the level of evidence that it says it has. For example, the statement “Two out of three doctors recommend ABC Pain Reliever” must be supported by a reliable survey to that effect. If the ad isn’t specific, the FTC looks at several factors to determine what level of proof is necessary, including what experts in the field think is needed to support the claim. In most cases, ads that make health or safety claims must be supported by “competent and reliable scientific evidence” – tests, studies, or other scientific evidence that has been evaluated by people qualified to review it. In addition, any tests or studies must be conducted using methods that experts in the field accept as accurate.29
Don’t forget about Trademarks
You’ve seen it, and maybe have even had it happen to you.
The dreaded copycat brand.
These are the brands that take your look, feel, brand voice and even design and try to make it their own,
That’s of course why all these businesses trademark their product brand names – they cannot afford to lose the rights to sell their most important products. And neither can you! In a world where most cosmetic companies are forced to come up with techno-babble to describe what their products actually do on the skin, when you find a term that works for you you’ve got to fiercely and legally protect it.30
Keep it positive
This is a tough problem – but NOT insurmountable. It’s going to take smart ‘work-arounds” with our language.
“There’s a lot more to what you can say than what you should avoid—it just means getting creative with verbiage. Structure/function claims are encouraged. Use phrasing like:
Promotes/supports healthy ______
Supports the skin’s healthy rejuvenation (if marketing toward a consumer)
Supports leukocyte health and function (if marketing toward a physician)
What’s more, you can openly talk about conditions that aren’t disease-related, i.e. menopause, PMS, occasional acne, stress, etc.
Supplements in the homeopathic arena constitute a safe zone of sorts, as they’re in a separate category outside of DSHEA and allowed to make drug and disease-like claims. For instance, Zicam can make cold claims per the homeopathic pharmacopeia.
Say this, not that. Reworking non-compliant claims*
Instead of: Reduces blood pressure Say: Supports healthy blood pressure levels already in the normal range
Instead of: Promotes fast recovery from athletic injuries Say: Promotes athletic recovery
Instead of: Improves blood circulation to the brain Say: Supports healthy micro-circulation/promotes healthy circulation to the brain
Instead of: Soothes food allergies Say: Promotes healthy digestive and immune system function
Instead of: Prevents insomnia Say: Promotes healthy, restful sleep
Instead of: Get over your cold faster Say: Support a healthy immune system during times of seasonal challenge
“A good source of electrolytes” is only compliant if a serving contains at least 10 percent of the RDI Say: Provides trace amounts of key electrolytes.”31
You can say things like “reduce the appearance of…” but not go as far as saying something like it “eliminates…”
Your products are really doing amazing things based on testimony from customers, but you can’t advertise any of it except when talking directly to someone face-to-face.
You can get around all this by getting a little creative!
After all, you don’t want to sound like every other brand out there who makes an “amazing” product.
3 easy ways to stand out and still be compliant
First, tell a story! Not just any story, tell YOUR story Your way
When I look at dozens and dozens of brand websites they all start to look pretty generic and honestly, all too alike to me.
The ones that express their ethos and give me the goods on their story win me over every time because they’ve not only captured my attention, but they’ve given me something I’m not seeing anywhere else.
Maybe it makes me laugh.
Maybe it makes me think in a new way.
Maybe it gives me a reason to think deeper.
If your brand is all about being a hippie, make everything about living the hippie lifestyle.
Here are two of my personal favorites when it comes to brands that tell their own story! These happen to be in the personal care category, but you’ll get the idea of how creating your story can set your brand on fire!
They made their quirky and edgy (and sometimes teetering on the edge of “appropriate”) story of a goat into a National Brand. Dare to be different and see where it takes you!
What if you wanna be a cowboy (or cowgirl)? What if adventure is your way of life…right down to your soap?
I’ve known the owner of this brand for several years and have watched them take this out-of-the-ordinary company from a small sudsy start-up to a national brand bubbling over with brand ambassadors.
Second, go all J Peterman
Remember in Seinfeld when Elaine had to write about the Urban Sombrero? She was writing copy for J Peterman.
It’s a real company, but it was played up really well and shows you can make a regular ole’ hat into an exotic adventure.
Look at the Val’s Linen Blazer. There certainly aren’t any claims being made.
And who else could turn a linen blazer into a story over Pim’s and cucumber sandwiches with Valentino in the hot African desert?
Third, Fun & Games
It’s no secret that Jack’s Links is my favorite ad copy and commercial right now.
Don’t know what I’m talking about?
Okay, take this little quiz.
Do you run with Sasquatch or away from Sasquatch?
Good clean fun! No claims!
In the end your copy matters
I know it’s a pain in the ass.
Writing copy for your brand that’s compliant takes work.
It takes strategy and some tender loving care.
Getting your message clear so your audience not only knows what you do as a brand, but also knows how you can make their life better, without breaking the rules and landing you in hot water, takes research, time and creative finesse.
You’ll also create messaging that’s eye catching, bold, unique and something that Sasquatch and J Peterman would be proud to run with.
If you’re lovin this content. If it’s setting your copy geek flag flying. Or you just need a little more copy know-how for your marketing campaigns…CLICK HERE…you’ll be on my list faster than you can say “sign me up!”