Claim Substantiation

Claim Substantiation

What do advertisers really need to know to stay on the right side of the law? Here’s a primer on the key legal considerations to keep in mind when planning your next claims and campaigns.

What is the most important rule in advertising law?

If you only keep one advertising law rule in mind, it should be that materially false or misleading representations are prohibited. This rule is found in federal and provincial legislation, industry-specific legislation applicable to certain types of products, as well as in industry codes and best practices (like the Canadian Code of Advertising Standards).

To determine what a claim means, take the perspective of a “credulous” and “inexperienced” viewer when considering how an advertisement is likely to be understood. Consider the general impression of the advertising as a whole, including its literal and implied meanings. Would a credulous and inexperience person get the same general impression that you intended?  Also consider whether you will require evidence to ensure that your claim is true, for example further consumer surveys or product testing.

What sort of support does an advertiser need to substantiate a claim?

The type of support needed will vary depending on the claim, as well as the general impression of the advertising. Common types of claims are those about consumer preferences, #1 market leader claims, and claims about how well a product performs. Some advertising doesn’t make a specific claim, so no substantiation would be required.

If making specific claims, an advertiser must have “adequate and proper” and “competent and reliable” testing that substantiates its advertising claims – regardless of an advertiser’s size or market share. Any required testing must have been conducted before the claim is published, so manage your project timeline accordingly. Be sure to design your tests so that they actually support the intended claim, and are conducted under valid and reliable conditions. Stricter measures should be taken for riskier products or those that present more potential for harm.

Kelly Harris
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