FTC Representation

Are you looking for FTC Representation? The Food and Drug Administration (FDA) shares jurisdiction over foods, supplements, cosmetics, over-the-counter (OTC) drugs, and medical devices with the Federal Trade Commission (FTC).

While the FDA has jurisdiction over the products, manufacturing, and safety, the FTC has authority over the advertising of these same products. The FTC’s singular function is ensuring that consumers are receiving truthful and accurate information about the products they are purchasing.

Therefore, the FTC and the FDA require that all substantive product claims be true, not misleading, and be adequately substantiated. In contrast to the FDA, which regulates primarily through inspections and informal actions, the FTC brings enforcement for money judgments.

In addition...

In addition to the FTC, the Better Business Bureau’s National Advertising Division (NAD) privately enforces FTC standards and then reports violations to the FTC, the FDA, and private class action attorneys. This can lead to significant regulatory, legal, and monetary consequences.

By hiring an attorney with both FTC and FDA experience, you can reduce your chances of facing FTC, FDA, and private enforcement actions (such as a class action lawsuit). You will also have a lawyer to represent you if the FTC brings a Civil Investigative Demand (CID) or NAD sends you an inquiry about your advertising.

FTC Claims Substantiation

The key to understanding FTC law is understanding the term “adequate substantiation.” The FTC defines adequate substantiation generally (and vaguely) as a reasonable basis for any claim – and companies must have this evidence for disseminating any claims.

For health-related claims, companies need to have competent and reliable scientific evidence. While the FTC says there is no precise amount or type of evidence, there is little that FTC will accept other than well-controlled human clinical studies.

The substantiation must also match the claims and include disclosures of relevant information that would affect consumer acceptance of the claims or products. It is important to not only know the law, but also be able to think through how FTC and consumers will understand any given claim.

Terms to Familiarize Yourself With

FTC – The Federal Trade Commission, which is tasked with regulating advertising, among other things.

CID – A Civil Investigative Demand, which the FTC issues when it begins an enforcement action. In the CID, the FTC will demand evidence. If you are at this stage, then you need legal representation immediately.

NAD – The National Advertising Division of the Better Business Bureau. The NAD purports to be a private self-regulatory body. They initiate cases on their own or after an industry member (i.e., your competitor) pays them a fee.

When the NAD initiates a case, they demand evidence of claims substantiation. If the NAD is unsatisfied with the company’s substantiation, they will report the company to the FTC and/or the FDA and issue a negative press release. Class action attorneys monitor these press releases, looking for new class-action cases.

Class Action – A lawsuit where there are numerous plaintiffs, represented by a member of the group. Because of the number of plaintiffs, class action lawsuits can have some of the highest money awards.

How an FDA/FTC Attorney Can Help

An attorney experienced with the FDA, the FTC, and the NAD can help you before or after you have an advertising problem. We can represent you if you are facing FTC and NAD action.

Even better, we can help you avoid FTC and NAD issues before they happen, by reviewing your claims, evaluating your claims substantiation, and helping you understand the risk associated with your marketing and advertising.

We have handled FDA and FTC/NAD related cases for over a decade. We have also reviewed hundreds of labels with thousands of claims, and websites for foods, drugs, dietary supplements, medical devices, and cosmetics. Let us be your advocates and advisors.

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