The Dannon Order

When visiting an unfamiliar city, it helps to have a tour guide – a knowledgeable local to walk alongside you to point out the notable sights.

When your destination is a proposed FTC order, that guide is the Analysis to Aid Public Comment, a summary of key provisions the Commission issues with each administrative settlement.  Given the buzz these days about ad substantiation, the Analysis in the FTC’s proposed settlement with Dannon  – which challenged allegedly false and deceptive claims for Activia and DanActive – serves as a handy guide businesses and attorneys can consult as they walk through the provisions in the order.

So what’s noteworthy in the Dannon Analysis?

► The explanation of why Dannon will need FDA approval if the company makes certain disease-related claims in future ads;

► The discussion of why it’s so tough to convey qualified claims to consumers;

► What the FTC means by the phrase “essentially equivalent product” and when research on one product can serve as substantiation for claims made about another product; and

► The analysis of the FTC’s “competent and reliable scientific evidence” standard and why the kind of proof companies need to support their ad claims depends – and always has depended – on the nature of the underlying claim and an evaluation of what experts in the field say is necessary.

Interested in the recent discussion about the FTC’s substantiation doctrine?  An October 2010 presentation by Mary Engle, director of the Division of Advertising Practices, offers insights.  Of course, the comments are Mary’s and don’t reflect the official position of the FTC, but her take on the issue presents it in a practical context.  Using a three-tiered approach to evaluating health claims addressed in recent FTC orders, she evaluates the kind of substantiation required for disease-related claims, other specified health claims where the level of scientific support has been established, and broad categories of claims about the health benefits, performance, or efficacy of foods, drugs, or diet supplements.  It’s definitely worth a read.

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