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Advertising & Marketing A sampling of Thomson Reuters® Practical Lawresources for in-house counsel. Our job is tomake yours better •Government Practice: State andLocal•Health Care•Intellectual Property andTechnology Practical Law know-how covers Get expert guidancecombined with legal researchto quickly get up to speedand advise with confidence.Designed for in-housecounsel, Thomson ReutersPractical Law Connect •Antitrust•Arbitration•Bankruptcy & Restructuring•Capital Markets and CorporateGovernance•Commercial Transactions•Corporate and M&A Practical Law Sectors coverage: •Alcohol, Tobacco & Cannabis•Construction•Financial Services•Food & Beverage •Media & Entertainment•Oil & Gas•Retail Key resources Practical Law Connectresources are written andmaintained by our expertteam of attorney editors and 1.Practice notes Get up to speed quickly withstraightforward how-to guidanceand clear explanations of current 2.Toolkits Easily access related resourcesthrough these one-stop shops 3.Standard documents and clauses Annotated templates withembedded drafting notes andclause-by-clause guidanceeliminate the need to start 4.Checklists Ensure you’ve covered all thebases or provide an outlineof considerations, timelines, “When I engage outside counsel, it is almost the mostvaluable time for me with Practical Law, because, at athousand dollars an hour, I don’t want to have to get a tutorialon things I can read about myself. I need their experience and Contents The following pages contain sampleresources from Practical Law Connect Checklist: Substantiation of Advertising Claims Practice Note: Company Use of Social Media: Best Practices Checklist Other resources available on Advertising & Marketing Practical Law Connect Substantiation of by Christie Grymes Thompson, Kelley Drye & Warren LLP,with Practical Law commercial transactions Resource presented as of December 23, 2024.See thelive, maintained resource in PracticalLaw for subsequent changes. Underlined text Contents •Determine the Type of Claim Being Made•Determine What is Needed to Support the Claim•Consider How the Claim Is Being Conveyedto Consumers•Testing to Support the Claim A Practice Noteexamining the standards for claimsubstantiation in consumer advertising. It includesissues related to both express and implied claims An advertiser must have a reasonable basis for allobjective claims made in an advertisement at the time the consumer might take away from the advertisement, whether To determine the types of claims being made, theadvertiser should consider the overall net impression of theadvertisement, including words, phrases, and pictures, fromthe perspective of the reasonable consumer. In general,the FTC has found a claim is implied when 15% or more of •The type of claim being made.•The support required for the claim. Determine the typeof claim being made If these express and implied claims are capable of beingmeasured, they require substantiation. The precise level of Advertisers must substantiate all claims, however conveyed,that make objective assertions about the product or service For more on the basics of advertising claims, seePracticeNote, Advertising Claim Fundamentals. Determine what Isneeded to support advertiser should evaluate: •The prominence of the disclosure. A disclosure is more –large enough for consumers to read easily;–for television, on screen long enough for a consumerto read; If a claim specifies the level of substantiation on which theadvertiser relies (for example, “a clinical study showed…”),then that level of substantiation is required to supportthe claim. For a claim that does not specify the level of •The placement of the disclosure in the advertisementand its proximity to the claim it is qualifying. In evaluating TheFederal Trade Commission(FTC) has identified severalfactors (the Pfizer factors) advertisers should consider when –how close the disclosure is to the claim it qualifies orto other relevant information. The disclosure should,for example be on the same web page or on thesame side of a product label as the claim and be •Type of product •Type of claim •Consumer benefit from a truthful claim –whether the disclosure is in a place consumers are •Ease of developing substantiation for the claim•Consequences of a false claimAmount of substantiation experts in the relevant field –whether, depending on the length of the –if items in other parts of the advertisement distractattention from the disclosure. (Pfizer Inc., 81 F.T.C. 23 (1972).) •The presentation of the disclosure. The disclosure shouldbe understandable to the intended audience. Additionally, Therefore, the amount and type of evidence required toestablish a reasonable basis for making a claim dependson many factors, including, most importantly, what experts –written in legalese or technical language;–in a difficult to read font; or Certain types of claims, such as health claims, require ahigher level of substantia