United States: Paid Search Terms: Do You Need FTC Substantiation For Them?

By now, readers of this column know that if they run an ad that states that their product causes rapid and substantial weight loss, or an ad that states that their product causes a reduction in wrinkles and fine lines, the Federal Trade Commission (FTC) is going to require substantiation in the form of competent and reliable scientific evidence. In plain English, they will need to have scientific proof backing up those claims.

Advertising lawyers can argue against the FTC on the issue of how much substantiation should be required in such cases, and that issue can be taken to court, as it was in the recent FTC v. POM Wonderful case in which the D.C. Circuit Court of Appeals told the FTC that the agency had erred when it had required POM Wonderful to have two independent, randomized, blinded and controlled clinical studies when one such study could have been sufficient. But there's no doubt that before the FTC, some substantiation is going to be required for such claims.

But what about the use of the very same words as paid search terms? That is to say, what if you never run an ad that states that your product causes rapid and substantial weight loss, so that you never expressly say those words or words to that effect to the public – but you pay Google or another search engine for the privilege of your sponsored result coming up in the search results when a consumer types in "rapid weight loss" or "fast weight loss" or "big weight loss fast"?

What if your product is an anti-aging cream and you never say a word in your ads about the removal of wrinkles and fine lines, but you pay Google to come up in the search results for "wrinkle removal" or "cure for wrinkles" or "wrinkle elimination"? Do you then, in those situations, need to have competent and reliable scientific information, or any substantiation of any kind for that matter, to prove that when your product is used your product will provide those benefits?

In January, the FTC announced a settlement with a company called Nourish Life LLC, which had marketed a nutritional supplement containing Omega-3, Omega-6 fatty acids, and Vitamins E and K and which had paid search engines for the privilege of coming up in response to consumers' searches for the words "autism treatment," "speech delay treatment," "help my child talk," "toddler speech problems," "verbal apraxia treatment" and other such terms. The FTC complaint called out this conduct specifically.

If you're paying for keyword search terms that you could never substantiate if they were considered to be actual performance claims made for your product, should you be worried? The answer is maybe.

The reason it's hard to say for sure is that, like in most FTC cases, the cited conduct in question in the NourishLife case also was accompanied by other conduct the FTC didn't like. It's like being pulled over for speeding and a broken taillight. It's hard to know if the paid search term conduct – all by itself – would have been enough to trigger the FTC enforcement action. Specifically, in the NourishLife case, the defendants not only paid for keyword search terms, but they also presented text in their sponsored links that the FTC found deceptive, and those links led consumers to a landing page that it also found deceptive. Claims were made that the product was "clinically proven" to support "speech development" for kids, including kids with verbal apraxia or autism spectrum disorder, when according to the FTC there was insufficient substantiation to support such a claim. There also was a testimonial in which a parent said: "[These] vitamins have made my little boy talk, he is five years old and has not spoken until I began giving him the vitamins, it took [only] two days of giving them to him to hear him speak."

The FTC said the company had not sufficiently disclosed that it had given free product to the parent and that it did not have good enough substantiation to back up the efficacy claims made through that testimonial. The FTC's action was in response to a combination of wrongs, one of which included the paid search terms.

A similar situation happened in another FTC case four years ago. In the Biersdorf case, the FTC challenged Nivea for its "My Silhouette!" skin cream. The company had paid search engines for the privilege of coming up in response to consumers' searches for the words "stomach fat" and "thin waist." Thus, even though Nivea had never expressly said this in its advertising, including in a television commercial that never expressly said it, the FTC found that the company had implied that its skin cream could thin someone's waist down and help slim them down, when there was no scientific evidence that it would.

If you're paying for search terms that you could never substantiate if they were to be considered as actual advertising claims for your product, it's a good idea to look at what you've written in the sponsored link that comes up, and to click through and look at what you've written on your landing page and website.

Understand that the FTC at a minimum is likely to use the keyword search terms you paid for in interpreting the implied meaning of your advertising claims. On your website and on TV, you may limit your express claims to "muscle toning" for example, and diligently avoid making any weight-loss claims due to lack of substantiation. But if you're leading people to that website through paid keyword search terms such as "belly fat" or "fat loss," you need to understand that it's possible the FTC will allege that you're making an implied weight-loss or fat-loss claim. This is a new frontier for FTC litigation that's going to evolve and develop.

Previously published in Direct Response Marketing Alliance on February 10, 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.