Episode 4: What Counts as a Claim? How the FTC Evaluates Beauty, Wellness & Supplement Marketing

In Episode 4, the team breaks down a foundational concept in FTC oversight: what actually counts as a “claim.” They explain how both express statements (like “clinically proven”) and implied messages (like before‑and‑after photos or carefully crafted visuals) can create claims that must be backed by real evidence.

The hosts walk through the FTC’s substantiation standard, what kind of scientific proof the agency expects for cosmetic, supplement, and wellness products, and why phrases like “boosts gene activity,” “clinically proven,” or “reduces plaque by 30%” often get companies in trouble.

To illustrate this, they dive into several of the FTC’s most notable deceptive‑advertising cases, showing how major brands oversold results, targeted vulnerable consumers, and relied on tiny or flawed studies.

Disclaimer:

The content of this podcast is for informational purposes only. It is not intended to, and does not constitute, legal advice or a solicitation for the formation of an attorney-client relationship. The information in the podcast is not a substitute for obtaining legal advice from an attorney licensed in the appropriate jurisdiction. Podcast listeners should not act upon any information in the podcast without first consulting legal counsel of their own directly.

 This podcast does not constitute the practice of medicine, nursing or other professional health care services, including the giving of medical advice. The use of information on this podcast or materials mentioned in this podcast is at the user’s own risk. 

Transcript

SPEAKER_01 0:01

Welcome to Regulated Beauty, a podcast that brings clarity to the complex legal landscape of beauty and wellness.

SPEAKER_02 0:08

As attorneys in Leach Tishman's Beauty and Wellness Industry Group, we are here to demystify regulations affecting your favorite brands, friends, and influencers.

SPEAKER_03 0:17

If you've ever wondered about the rules and regulations and why they matter, welcome. You're in the right place. Let's get started.

SPEAKER_01 0:30

Welcome back to Regulated Beauty. On last episode, we really talked about the background of the FTC and how its oversight has really expanded over the last decade plus. And I think before we dive into that further, it's important for our listeners to understand kind of the foundational concept of this, which is what even is a claim under the FTC to begin with? And a claim is anything that a brand or company communicates to consumers that a consumer can then reasonably understand and interpret to be a fact about that product that they're selling. And these can be express or implied claims. So express is anything a brand outright says. And implied, it can get a little trickier. It can be a visual before and after photos, I think, are a big example of this. Anything that just kind of gets consumers to associate a certain statement or fact about the product with that product because of how the brand is advertising it. Anything that a brand says, you have to be able to have true evidence for what you're putting out with your product, whether verbal or visual. And that makes sense.

SPEAKER_02 2:11

So as we talked about in the last episode, um, and I promise I won't get too in the weeds here. Um the FTC for over 100 years has used its primary enforcement mechanisms, Section 5 of the FTC Act, which basically in a short statement just targets unfairness or deception of consumers. So it looks at any company, it doesn't have to be healthcare or beauty and wellness specific, really just any company that's out there. It evaluates its claims that it's making to consumers. Like, is it trying to dupe consumers? Is it trying to say something that would incentivize consumers to like buy their product over um their competitors, for example? So as you were saying, what the what is the FTC looking at? The FTC is looking at the claims, like the statements, both expressed and implied, as you mentioned, that um companies are making, whether it's in print advertisements or online, um, what they're really looking at is not the marketer's intent per se, like what the marketer intended by writing something or by putting a specific visual, right? Really looking at did the average consumer understand the meaning in a certain way that would affect them, that would cause them to act in a certain way.

SPEAKER_03 3:28

Right.

SPEAKER_02 3:29

Um, so basically, as to specific food or drug products that we're talking about, like in the beauty and wellness industry, like supplements. Like supplements, right? Like supplements, vitamins, even even juices, as we'll talk about in a little bit. Um the FTC uses not section five, but section 12 of the FTC Act, whatever. That doesn't matter for our specific purposes here of our discussion. Um, but what the FTC is really doing is evaluating whether the claims that companies are making as to any food or drug products are substantiated.

unknown 4:05

Okay.

SPEAKER_02 4:05

So what does that mean? Like if we think about food and drug products, we think about their advertisements, like what are they claiming? Usually it's something like I'm not gonna name a specific product right now, but we were talking a second ago off camera, right? Like there are specific supplement products or vitamin products that say like they'll reduce your bloat, or they'll they'll improve cognitive function, right? We've seen that, like different types of like cognitive functioning pills or something like that, or or like powders you can mix um in your drink. So the FTC is looking at like is what the is the end product that the marketer is claiming, is that legitimate? Is that substantiated by some kind of scientific evidence? I think we've seen all over the place, again, in print and online advertising, that companies are saying, like, even toothpaste, right? We've seen like nine out of ten doctors recommend this um this toothpaste because it improves your whitening by 60% if you prevent cavities or prevents cavities or anything like that, right? So the FTC will look at a claim like that and they'll ask the company, they'll probe it, right? Like, did you actually conduct study legitimate studies with a substantial sample to like legitimize these small sample size in a rural town somewhere? Legitimize these um these results, right? And especially, and it gets way more concerning, right? Especially when companies are saying that their products uh treat or even cure or fight like serious diseases or ailments like prostate cancer, which we'll talk about in a second, or um erectile dysfunction, yeah, um, or even cardiovascular health, right? Making a claim that some kind of food or drug or little pill that you have to take once a day uh cures um any specific cardiovascular disease, I mean that's pretty significant.

SPEAKER_03 5:59

Yeah. So uh just to kind of uh break it down, uh when we're talking about substantiation, just if we were to do a quick and dirty like summary, uh what does that mean?

SPEAKER_02 6:11

That means that the FTC is looking to see where whether a marketer's claim is uh legitimate. Meaning, is a consumer going to either read the advertisement or look at an image and interpret something that can be substantiated by the marketer itself? Okay. So like if they're making a claim that some kind of medical condition is going to be improved by a certain percentage, um, or if you take it over the course of a certain amount of time, is something something going to be improved, right? The marketer has to be able to back that up with scientific evidence. So this applies to any cosmetic product, beauty product, um, any dietary supplement, which we'll get into later on in this podcast. Um the FTC and the FDA do work in concert, target specific like dietary supplements and health products. But as to food products, as to certain supplements and vitamins, like the FTC will demand um that uh the claim itself can be substantiated again by some kind of scientific evidence or some kind of study that the marketer themselves has really gone through and gone to the lengths that they need to to really back up their claims.

SPEAKER_03 7:22

I think it might be helpful for listeners to kind of get some more case study examples of what these deceptive claims are, just to kind of really um expand further upon it and give concrete examples. So this is a while ago, back in 2014, but these examples are illustrative of what we're talking about when we're talking about deceptive claims. L'Oreal um had claimed that its Genifique products were clinically proven to boost genes activities and stimulate the production of youth proteins that would cause visibly younger skin in just seven days.

SPEAKER_02 8:01

That's that's a bold claim.

SPEAKER_03 8:03

Let's talk about it.

SPEAKER_02 8:04

Yeah, I mean first of all, what are what are youth genes and what do you mean improves within seven days?

SPEAKER_01 8:09

If people could improve their youth genes in seven days, I think so. This world would look a lot different.

SPEAKER_03 8:16

It says here, I'm looking at the the the ad of this Genophique youth activating concentrate. Yeah. At the very origin of your skin's youth, your genes, genes produce specific proteins. With age, their presence diminishes, now boost genes activity and stimulate the production of youth proteins. So when we're talking about the average consumer here, yeah, I mean, I if I'm putting myself in that position, that sounds pretty darn good to me.

SPEAKER_01 8:45

Oh yeah. I'm interpreting that as I use this product, I'm going to look younger. In seven days.

SPEAKER_03 8:52

In seven days, sold. Um so it looks like, you know, at that, at that time, this was a pretty it's a it's a far reach, right? Yeah. Um so it makes sense as to why the FTC kind of flagged it.

SPEAKER_02 9:08

Well, like let me ask you, like, why would the FTC find that statement or those two statements problematic? Like what about those claims? First of all, what about them makes it a claim? Then what about it makes it problematic?

SPEAKER_03 9:24

Well, so just to give a little bit further context, um under the under the final order in this FTC press release, yeah, uh, L'Oreal is prohibited from claiming that any Lancome brand or any L'Oreal Paris brand facial skincare product targets or boosts the activity of genes to make skin look or act younger or respond five times faster to aggressors like stress, fatigue, aging, unless the company has competent and reliable scientific evidence substantiating such claims. So this is what we're talking about, right? What what how do we ensure that these claims are actually backed by science, that they're actually doing what they're claiming to do? Um so it also barred the company from claiming that this brand affects genes unless the claims are supported by this scientific evidence.

SPEAKER_02 10:12

So like what would what do you think the FTC would expect L'Oreal to do? Like what kind of scientific backed evidence is it like looking for?

SPEAKER_03 10:22

They need to be conducting thorough study that has a comprehensive sample size where these results are actually happening within seven days. Also, give some sort of explanation as to what youth genes are. Right. Um, I don't know what that is.

SPEAKER_01 10:41

Because again, I think that's that's the problem here is what makes it a claim is that it is almost it's just vague enough by not explaining any of that. But if you're looking at it from the perspective of a reasonable consumer, I mean, what did we all just say? We think it would make us look younger. We think it would make us feel younger in just seven days. So we are three attorneys there. Yeah. So we're associating a fact about that product with the product because of what they expressly put out into their advertising and marketing materials.

SPEAKER_02 11:17

And I think I think what's important here, and what we're gonna see in other examples too, is like the company L'Oreal obviously knows who it's marketing to. Right. It's marketing uh about your youth genes are gonna improve and it's gonna fix your youth proteins, et cetera, in a short span of time. Obviously, they're marketing to probably an older demographic, right? And they they're specifically using a language that would target perhaps their vulnerabilities and sort of try to induce their trust. Yeah, you know, and that that in itself is problematic because the FTC recognizes that regular everyday people are gonna see something or read something, read between the lines, and like you know, associate that with themselves and what they're looking for and induce them to buy that product.

SPEAKER_03 12:07

And I mean, this ad, this image that I'm looking at here, um, that we'll make sure that we show to our listeners, um, it says clinically proven. So from so from what I'm gauging by this, it's not enough to just say clinically proven. It says use AM and PM for powerful skin results in seven days, and it does have a footnote. The footnote is very blurry in this. I'm not quite sure what it's saying. Um, but even that, I would like to see what what exactly are they citing to? What's the study for? How is it being substantiated? Um yeah, very interesting. So that's so that's just one example, right? And then we have other cases like Locitan. Locitan, Loxitan. I'm not quite sure how you pronounce that.

SPEAKER_02 12:45

Forgive me. Another skincare brand, right?

SPEAKER_03 12:47

It's another is it do they do skincare? I know they have a bunch of lotions, they have soaps, they've got like stores all over all across malls. Um and so they claimed that this is again also in 2014, that it's almond beautiful shape and almond shaping delight skin creams have body slimming capabilities and are clinically proven. Again, there's that clinically proven. Um, and they they claimed that the creams had body slimming capabilities, right? Okay.

SPEAKER_01 13:16

I have a lot to say about this one.

SPEAKER_03 13:18

Go go off.

SPEAKER_01 13:19

First of all, clinically proven, as we talk more, like that's something that I feel like so many brands fall back on. And it's like you said earlier, what does clinically proven even really mean?

SPEAKER_03 13:30

Because it sounds smart. It sounds like it would be a study, yeah. You can trust in it that it's gonna do what it's claiming to do.

SPEAKER_01 13:38

And second, again, a body slimming lotion, like I feel like if it were that easy, everyone would do it. Right. But how are they how are they actually proving that? Yeah. Are people that are using that product only using that product for the exact amount of days that they say it takes to work and not going to the gym, not also eating healthy, not like that's the only thing that they're doing? Because if that's the case, okay, maybe the product works, but it's not factoring in all of these other very real things that come into play when you think about body slimming.

SPEAKER_03 14:19

And I'm looking at this this advertisement, and it's it's it's it's pretty pretty. Uh it's it's very aesthetically pleasing. Um and it says, you know, Lositan has harnessed nature's secret with body sculpting almond extracts cultivated in the south of France. We've teamed up with shaping experts. Okay, shaping experts. Yeah, what does that mean? To bring you a firmer, smoother body, and it's all just four weeks away. Wow.

SPEAKER_02 14:45

And I, you know, and like to your point, Mikhaila, um when companies slap on clinically proven onto a product, they might have done a study, right? They very well might have. And the FTC will say, okay, like back up your words, like show us the receipt. And the reality is when we actually, you know, uh peel back the veil here, what we often see is that maybe the company did conduct a study, but on an extremely small sample size, right?

SPEAKER_03 15:18

Right.

SPEAKER_02 15:18

Um, its results, again, don't factor in any other factors that might have improved a person's body or or skin health or whatever. And that in itself is deceptive to consumers. Because the FTC importantly considers uh um that phrase like you can lie by omission. Yeah, so the FTC considers the omission of certain information, the omission of certain language, like including those specific factors, um, also the lack of substantiation.

SPEAKER_03 15:50

Um, so going back to this like FTC press release, it says here that back then, this is in March of 2015, they mailed 10,620 refund checks, totaling more than 416,000 to consumers who lost money buying these skin creams, these two skin creams marketed by Lost 10 Inc., which falsely claimed the screams had these body slimming capacities, right? And the amount each consumer receives will vary based on how much of the product they bought. I mean, can you imagine like somebody who's struggling with their weight thinking that this would help them, dowsing themselves in these lotions every night for four weeks, hoping for some sort of miraculous? I would demand my money back. Yeah, right. Um, I don't even know how much these were on the market at that time. That would be interesting to know. Okay, okay, here it is. So the online and in-store retailer of beauty and cosmetic products charged $48 for seven ounces of almond shaping delight and forty-four dollars for six point seven ounces of the almond beautiful shape.

SPEAKER_02 16:51

Wow. Yeah, to buy a supply for four weeks. Right. That's a lot. Yeah, especially back then. To claim that they're going to have body slimming properties. Yeah, and even imagine how much these poor consumers spent.

SPEAKER_01 17:04

I know. So the end result here was that they consumers got some sort of recourse because of and and I'm assuming Lositan was prohibited from making such claims.

SPEAKER_03 17:17

Exactly. Exactly. And it's interesting, the the checks that they sent had to be cashed by a certain date or else they became void. Um very interesting. But um, but yeah, I mean, even looking back at this ad, uh so it says for the almond beautiful shape, it trims 1.3 inches in just four weeks. Uh that's a very specifically. That's it says this ultra fresh gel cream helps to visibly reduce the appearance of cellulite. And that's kind of going to, we were talking about this on camera, reduce the cellulite kind of language. Yeah.

SPEAKER_02 17:54

Interesting. So so you're saying that this cream is not just So there's two for the face, right?

SPEAKER_03 17:59

It's like for different parts of the two creams that they're talking about. Yeah. Um, and so they one of them firms and tones the skin, the other visibly reduces the appearance of cellulite while smoothing and firming the skin as well. Um, so one is kind of a multitasking body cream, the other is a fresh gel cream. Um, and so it's interesting because it has an asterisk after trim 1.3 inches in just four weeks, and it says centimetric loss measurement of thigh circumference. So it's talking about a very specific part of the body.

SPEAKER_02 18:29

I would love to see the study they conduct again, the evidence on thousands of women. And their thoughts. That showed a reduction of quantity thigh circumference.

SPEAKER_03 18:40

And then here's so for the almond milk concentrate, 96% of women saw smoother skin, asterisk. This vote consumer test conducted on 25 women after 28 days of use.

SPEAKER_01 18:50

Only 20 women exactly what I was talking about.

SPEAKER_03 18:54

Right. So just goes to show.

SPEAKER_02 18:57

You know, the FTC doesn't play with that well. Absolutely.

SPEAKER_03 19:00

No, they don't. As I mean, as they should, they should be 100% flying companies like this.

SPEAKER_01 19:05

At the end of the day, the FTC wants receipts. They need true facts, true evidence that shows they conducted a study on hundreds, if not thousands, of people, not just 25 people, to be able to substantiate the fact that what they're saying about a product is true. Otherwise, it is outright deceiving to consumers. Crazy.

SPEAKER_03 19:30

So then we have a final example that we'll use. My favorite, yeah. Uh which is regarding Palm Wonderful LLC. What's Palm Wonderful? It's uh juice juice. You know, the juice with the has the heart as the O heart and comes in kind of like that that uh like bubbly bottle hourglass shape situation. Um super red. It's pomegranate juice. I will say, I'm a fan of Palm. It's good juice. It's great. Who who doesn't love pomegranates? Um so yeah, I mean, one of their they also had some pretty wild claims. One ad noted that 98% of heart attacks are due to a therosclerosis or too much plaque plaque in the arteries, and concluded with this punchline: a clinical pilot study shows that an eight-ounce glass of Palm Wonderful, 100% pomegranate juice consumed daily, reduces plaque in the arteries up to 30%. The ad did not tell consumers that this clinical pilot study was tiny, well and flawed. Worse, Palms ads continued citing that the study they continued citing that study and stressing the 30% claim years after the company's far larger and more rigorous trials showed that POM consumption did not significantly reduce arterial plaque in the study groups, let alone up to 30%. Shh. To continue citing a study that was so rocky move. Oh my gosh. Okay, so um even looking, I'm looking at the ads, right? For for this Palm Wonderful, and these are by far uh the most, the most misleading, the most out there, I would say. Yeah, they mentioned erectile dysfunction. Okay, so get this. So Palm ran dozens of advertisements targeting, among other consumers, hypochondriacs, these super health-conscious individuals who are seeking a natural cure for current ailments or who wish to prevent future ailments, such as older men who are scared to get prostate cancer. Um, so for example, one ad had told consumers that palm juice can help prevent heart disease, stroke, Alzheimer's, even cancer, and that eight ounces a day is all you need to cheat death. Okay. Um it also sought to differentiate its products from the competition by. By claiming that the pomegranates were not only more better, um, or not only more, but better, unique, and superior, that like they had these more unique and superior antioxidants compared to other fruits and vegetables. And their ads like also talked about how they were their products were medically superior to even rival pomegranate products, like that they were even medically superior to other pomegranate products. Yeah. So, you know, show me the ads. Well, the ads were saying our juice comes from a unique pomegranate variety, the wonderful, which is grown in a unique location, California, and which is juiced with proprietary technology, ours. Another ad stressed that the wonderful variety of pomegranate is a type of pomegranate rather than a brand, a type, so not this brand, and that most of many published peer-reviewed medical papers that speak to the health benefits of pomegranate were conducted using juice or pomegranate extract from this specific variety.

SPEAKER_01 22:53

Um I mean, look, there's no question that certain foods have health benefits. I mean, I don't think anyone's denying that, but to claim that you can cheat death by drinking this juice pomegranate juice. I mean, and again, in hypochondriacs that truly do have fear. If you, if they're the ones seeing this, I'm buying it.

SPEAKER_02 23:18

Absolutely. And I think I think also another issue that maybe we didn't get it into earlier, but that we'll show on the ad is that a lot of their advertisements are about the juice, which we all know and love. Oh my god. Um, but they also they packaged juice in like a powdered form in pills too. Yeah. So they were selling the juice and the actual like palm pills or something, or X pills or whatever they in itself constitutes a different product and a different way that they were branding, taking pills and sort of inducing consumers to buy, you know, bottles of these pills in addition to their juices.

SPEAKER_03 23:56

Okay, I I like can't get over this. So this is another ad um portraying the Palm battle, palm bottle as a medical superhero, which is pre and it proclaimed, I'm off to save prostates, man by man, gland by gland, and noted that this claim was backed by 25 million in vigilant medical research. Uh other ads claim that recovering prostate cancer patients consume palm products after surgery or radiation treatment, and they enjoyed a dramatic fourfold slowing in doubling times for PSA, which is prostate-specific antigen, a protein maker for prostate cancer.

SPEAKER_02 24:27

Yeah, I think I think what we've seen with this POM case, and I think the reason we chose to talk about it, even though it was, you know, you're reading from the complaint from 2014, yeah, is that it really seemed to become at least one of the poster child children? Poster children poster child, yeah. Poster children for the FTC for deceptive claims.

SPEAKER_03 24:48

So I mean, so what does that mean exactly for for our intensive purposes? Like, what should listeners be worry about when we're talking about these deceptive claims? Well, what's important about that?

SPEAKER_02 24:58

First of all, I'm not saying that listeners should be more skeptical, but perhaps take advertisements with a bit of a grain of salt. Because you're you're as a consumer. As a consumer, right, as a consumer. But then on the side, right. As on the flip side, if you're listening and you work for a company or you work for a marketer that's um creating advertisements for a specific company, whether it's in the beauty and wellness space or otherwise, you're marketing uh some kind of vitamin or supplement or any kind of um beauty product, like the skin creams we talked about, like the juices, like anything like that. I think it's important to really make sure that you back up or you're all right, you're at least able to back up the claims that you're making in writing. And not just state clinically proven. Correct. Because assume that if you do that, there may be a very good chance that an agency like the FTC will go after you. 100%.

SPEAKER_01 25:57

You have to watch what you're saying and what you're also showing, because I think both of those really go because remember handy.

SPEAKER_02 26:05

Remember, the FTC is not looking at the marketer's intent, rather, a consumer's understanding, um, explicitly or implicitly, right? From from the words that you're saying, from the the message that you're creating, either through a visual um or through the words that you're putting out. Right.

SPEAKER_01 26:23

Next episode, I think we're going to go into that a little further with some more examples to kind of help really emphasize this. But yeah, the key here is as a consumer, look for the evidence. And as a producer of this material and marketing, make sure you're able to back it up in any way, shape, or form.

SPEAKER_03 26:47

100%. Thanks for joining us on Regulated Beauty, where we bring clarity to the legal side of beauty and wellness. If you found today's discussion insightful, be sure to subscribe and share the podcast.

SPEAKER_02 26:59

Have questions or topics you'd like us to cover, connect with us at leachman.com or follow us on social media.

SPEAKER_01 27:05

Until next time, stay informed and stay well.