By Lesley Fair

Whether it’s “4 out of 5 dentists” who recommend a certain product or a pitch person in a lab coat surrounded by charts, graphs, and learned tomes, there’s something about science that attracts the attention of potential customers.  When marketers truthfully highlight test results in their ads, consumers can use the information to select the products that best suit their needs.  But when companies misstate the findings of studies, exaggerate their outcomes, or otherwise “fidget with the digits,” they can expect to hear from the cops on the advertising beat.

A settlement announced by the Federal Trade Commission (FTC) illustrates the importance of accuracy when using test results in ads.  A leading food marketer claimed in television, print, and online ads that one of its brands of breakfast cereal was “clinically shown to improve kids’ attentiveness by nearly 20%.”  According to the FTC, the study referred to in the ads showed that only about half the children who ate the product for breakfast showed any improvement at all in attentiveness, and only about one in nine improved by 20 percent or more.  Thus, the FTC challenged the company’s claims as false and deceptive.

What tips can marketers take from this case and other FTC actions challenging how companies use scientific testing in their ads?    

• Study the study.  Sometimes it seems like scientists speak a different language.  Before referring to studies in your ads, make sure you understand what the tests prove, as well as the methodology used to reach those results.  If necessary, check with an expert in the field.  
• Don’t cherry pick the data.  Cherry picking – emphasizing atypical examples to support a point – is a fruitless endeavor when it comes to advertising substantiation.  Unless you make it crystal clear to potential customers that you’re focusing on the best case scenario, it’s wrong to rely on statistical extremes.  Using outliers to suggest that consumers can expect “up to” a certain result won’t fix an otherwise unsubstantiated claim.
• Curing deceptive health claims.  When using scientific tests to make promises about the health benefits buyers will get from your product, be especially careful in how you report the results.  Deceptive “credence” claims – representations that buyers aren’t in a position to verify for themselves – have always been at the top of the FTC’s agenda.  And questionable claims about kids’ health are sure to attract law enforcement scrutiny. 
• Keep the lines of communication open.  Whether they’re innovative start ups or global powerhouses, companies that avoid regulatory snafus seem to have one characteristic in common:  They encourage a free flowing conversation among their advertising professionals, technical experts, and legal counsel.  Gathering the gurus when the brainstorming begins is the best ounce of prevention you can take to ward off law enforcement headaches later on.

Lesley Fair is an attorney in the FTC’s Bureau of Consumer Protection.