Reading list: empirical evidence about FTC's substantiation standard

Sungho Cho &Yongjae Kim, Empirical Rationalization of Prior Substantiation Doctrine: Federal Trade Commission v. Reebok & Sketchers, 29 Loy. Consumer L. Rev. 55 (2016) (not apparently available online—update that website, Loyola Consumer Law Review!)

ABSTRACT

Companies frequently make efficacy claims in advertisements to introduce new products featuring innovative technology. When such claims are supported by information obtained from scientific research or expert testimonials, they are subject to the doctrine of prior substantiation. Under the doctrine, an advertisement claim based on seemingly credible authorities must be substantiated by a reasonable basis before it is released to the general public. Otherwise, the advertisement will be in violation of Section 5(a) of the Federal Trade Commission Act that prohibits “unfair or deceptive acts affecting commerce.” This study investigates the rationale of the legal rule in light of consumer behavior theories. While the doctrine has been normatively rationalized, it has not been empirically examined. Given the paucity of relevant research, this study will test consumer attitudes and cognitive reactions toward different types of advertisement messages, such as, one with establishment claims and the other without such cognitive contents. The study administered real advertising video clips used by Reebok and Sketchers, disputed in two settled cases where the Federal Trade Commission alleged that the defendants failed to satisfy the legal standard of the substantiation rule. The findings of this study support the rationale of the rule on the ground that the Reebok advertisement clip delivering expressive establishment claims about its product efficacy would likely have more of an immediate impact on consumers’ purchasing intention than Sketchers’ ad without such cognitive information. Implications and future research along with limitations are also discussed.