FTC Continues to Focus on Unsubstantiated Health Claims and Fake Testimonials

The Federal Trade Commission has announced that it has settled charges, via an administrative consent agreement, with a New Jersey-based company and its owners for the alleged use of deceptive claims to sell purported mosquito-repelling perfume sprays and scented candles. Specifically, the FTC alleges that efficacy claims were unsubstantiated and that various consumer reviews were illegitimate.

As set forth in the Complaint, the Respondents violated the FTC Act by making false and unsubstantiated advertising claims about their products’ efficacy to repel mosquitoes, including those carrying the diseases cited. Specifically, the Complaint alleges that deceptive claims were made regarding efficacy in repelling mosquitoes for 2.5 hours, and that the sprays and candles repel mosquitoes as effectively as 25% DEET. The complaint charges the Respondents with making false claims that the products are scientifically proven to work as advertised.

Claims were also made online that the sprays and candles were “rigorously tested at one of the world’s leading Universities and found to be as effective at repelling mosquitoes as the leading brand” and “repels mosquitoes that may carry Zika, Dengue, Chikungunya, and Yellow Fever.” According the Commission, the Respondents repeated many of the claims on their Amazon storefront.

The Respondents’ Amazon storefront also allegedly included five-star product reviews by purported unbiased users. However, the reviews were allegedly made by family members of the sellers that failed to disclose the material connection.

Unsubstantiated health claims and the failure to disclose material connections between endorsers and product marketers continue to be a hot button regulatory issue. Test methodologies must be scientifically rigorous and reliable and the results must support efficacy claims. Studies must be conducted and evaluated in an objective manner by experts in the field of insect repellency. They must be generally accepted by experts to yield accurate and reliable results. Studies should involve human clinical testing of the covered product, when such experts would generally require such human clinical testing to substantiate that representations are true.

The Consent Order prohibits the Respondents from making similar misrepresentations. It also requires them to possess competent and reliable scientific evidence to support efficacy claims, and clearly and conspicuously disclose material connections between endorsers and the product. Not atypical, the settlement imposes a twenty-year compliance monitoring program.

Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.  

ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777.

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