How can I tell whether a statement in my ad is an express claim?

A statement is an express claim if the ad literally makes it. The FTC's example is “ABC Mouthwash prevents colds,” which expressly claims that the product will prevent colds. A federal court borrowing an illustration from Kraft drew the same line: an ad that boasts a car gets 30 miles per gallon makes the claim expressly, while an ad that names the car the “Miser” and shows it passing gas station after gas station makes it impliedly.

Is an express claim assumed to matter to buyers?

The Commission typically presumes that it does, because in most cases the very existence of an express claim is enough to show materiality. The presumption can be challenged, since a respondent can try to rebut it with evidence that the claim is not material.

Does it matter whether a misleading claim is express or implied?

Liability does not turn on the label. One federal court put it plainly: the law does not recognize any distinction between express and implied misleading claims. The label affects how the ad's net impression is ascertained, but a misleading net impression violates Section 5 whether it is created expressly or by implication.

Is repeating the word “free” in an ad an express claim that the product is free?

That turns on the context around the word. In testimony about the FTC's complaint against Intuit, a witness was asked whether saying “and free and free and free” is an express claim that TurboTax is free, and answered that it depends whether there is any other context for the person hearing the statement.

Does saying “may” or “might” keep a promise from being an express claim?

Not when the statements as a whole still promise the result. In a grant-research telemarketing case, the court held that “may” and “might” did not blunt the net impression that customers were guaranteed, 90% likely, or highly likely to receive a grant.

If we put a caveat next to an express claim, does that change what the ad claims?

Not when the caveat leaves the overall net impression intact. In the ECM matter, some of ECM's marketing materials advised that the rate of biodegradation depended on factors such as soil conditions and the availability of microbes in the soil. The administrative law judge nonetheless found that this language did not alter the overall net impression that ECM Plastics would fully biodegrade, including in a landfill, within 9 months to 5 years.

Can puffery in the ad or an endorsement excuse an express efficacy claim?

No. In the Hi-Tech contempt proceedings, the court agreed that some claims, including a physician's Fastin endorsement, may contain puffery, but it held that those claims rested on the factual predicate that the products actually caused weight loss and fat loss. Quoting its earlier summary judgment order, the court added that puffery cannot serve as a shield for deceptive, factual representations and is not a justifiable defense.

Can a product name be an express claim?

The FTC has argued that it can. In its contempt filing against Enforma, it said the trade name “Fat Trapper Plus” had all along made an express claim that the product traps fat in humans when taken at the recommended dose.

If we stop running an express claim after a complaint, are we in the clear?

Stopping the claim does not by itself prevent an order. In the ECM matter, ceasing the claim after the complaint issued did not bar a cease and desist order where the public interest otherwise supported one.

DeceptionLegal test

Express claim

Berkeley Robinson, Managing Attorney at Robinson Law Firm PLLC

Author

Berkeley Robinson, Esq.

Managing Attorney, Robinson Law Firm PLLC

Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.

Definition

An express claim is a claim that directly states the representation at issue. Source: In re ECM BioFilms, Inc., Opinion of the Commission An implied claim gets there sideways: an ad that never says "30 miles per gallon" can still claim fuel economy by naming the car the "Miser" and showing it roll past gas station after gas station. Source: FTC v. QT, Inc., Memorandum Opinion and Order That directness is why the duties below treat the words on the page as meaning what they say.

Key legal rules

An express claim is still a claim, so it has to be truthful and substantiated. Four rules put that to work:

When an advertisement makes a claim expressly, the representation itself establishes the meaning of the claim, so no further evidence about its meaning is necessary, and it is appropriate to infer that reasonable consumers interpret the statements to mean what they say. Source: United States v. Commercial Recovery Systems, Inc., Memorandum Opinion and Order
A health-related efficacy claim likely will mislead a reasonable consumer if the claim is false or if the advertiser lacks competent and reliable scientific evidence to substantiate the claim. Source: FTC v. NPB Advertising, Inc., No. 8:14-cv-1155-T-23TGW (M.D. Fla.), Order, § 1
Express claims are presumed material: in most cases the very existence of an express claim is enough to show materiality, though a respondent may rebut that presumption with evidence that the claim is not material. Source: In re ECM BioFilms, Inc., Opinion of the Commission (The Order)
For express claims, the intent to make the representation is self-evident, while an implied claim requires extrinsic evidence of intent. Source: In re Novartis Corp., Opinion of the Commission

For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.

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Why these rules exist

Express claims are presumed material because a business that promotes a claim is assumed to believe that consumers are interested in it. Source: Ruling on Motion in Limine and Motions for Summary Judgment (LeadClick Media, Inc.) Consumers, for their part, may take such statements at face value, and CFPB examiners treated it as reasonable for borrowers to accept an express claim on their lender's portal about autopay eligibility as written. Source: Consumer Financial Protection Bureau, Supervisory Highlights: Special Edition Student Lending

Enforcement examples

FTC v. QT, Inc. (Q-Ray ionized bracelet)

FTC v. QT, Inc., Memorandum Opinion and Order

Every buyer of a Q-Ray bracelet saw a heavily advertised 30-Day Satisfaction Guarantee, yet QT's refund policies varied based on the type of bracelet purchased and the method of purchase. Source: FTC v. QT, Inc., Memorandum Opinion and Order In December 2002, for instance, the refund policy for the Standard, Deluxe, and Black Ball styles ordered online was only a 10-day satisfaction guarantee. Source: FTC v. QT, Inc., Memorandum Opinion and Order

Outcome. The court treated the 30-day refund promise as an express claim, which made it presumptively material. Source: FTC v. QT, Inc., Memorandum Opinion and Order It then found the claim false, held that it violated Sections 5 and 12, and ordered refunds for purchasers who had been denied one under the 10-day policy, if they wanted them. Source: FTC v. QT, Inc., Memorandum Opinion and Order

In re ECM BioFilms, Inc. (biodegradable plastics additive)

In re ECM BioFilms, Inc., Opinion of the Commission

For many years ECM made biodegradability claims for its additive, including that treated plastics would completely biodegrade in a landfill within nine months to five years, and it represented that accepted scientific tests supported the claims. Source: In re ECM BioFilms, Inc., Opinion of the Commission

Outcome. The administrative law judge found agreement among all of the scientific experts that the plastics did not fully biodegrade within five years in a landfill, and so held the express nine-months-to-five-years claims false, misleading, and material. Source: In re ECM BioFilms, Inc., Opinion of the Commission The Commission affirmed that holding on the express claim. Source: In re ECM BioFilms, Inc., Opinion of the Commission It went further and found that ECM also made implied claims that the plastics will biodegrade in a reasonably short period of time, or within five years, and its order prohibits ECM from making such claims in the future without adequate scientific substantiation. Source: In re ECM BioFilms, Inc., Opinion of the Commission

FTC v. NPB Advertising, Inc. (green-coffee extract weight-loss supplement)

FTC v. NPB Advertising, Inc., No. 8:14-cv-1155-T-23TGW (M.D. Fla.), Order Granting Summary Judgment

The Pure Green Coffee advertisements promised consumers “[t]remendous weight-loss results,” such as seventeen pounds in twenty-two weeks and seventeen pounds in twelve weeks. Source: FTC v. NPB Advertising, Inc., No. 8:14-cv-1155-T-23TGW (M.D. Fla.), Order, § 1 Congleton admitted that those efficacy claims lacked a scientific basis. Source: FTC v. NPB Advertising, Inc., No. 8:14-cv-1155-T-23TGW (M.D. Fla.), Order, § 1

Outcome. Because express claims that lack competent and reliable scientific substantiation likely would mislead a consumer, the court held that the FTC met its burden of proof. Source: FTC v. NPB Advertising, Inc., No. 8:14-cv-1155-T-23TGW (M.D. Fla.), Order, § 1 The efficacy claims were express, so they were also presumptively material. Source: FTC v. NPB Advertising, Inc., No. 8:14-cv-1155-T-23TGW (M.D. Fla.), Order, § 1 On that footing, the court held that the FTC was entitled to summary judgment on the count. Source: FTC v. NPB Advertising, Inc., No. 8:14-cv-1155-T-23TGW (M.D. Fla.), Order, § 1

In re Cambridge Analytica, LLC (Facebook data-harvesting app)

In re Cambridge Analytica, LLC, Commission Opinion

When survey participants were asked to authorize its Facebook app to collect their data, Cambridge Analytica told them: "We want you to know that we will NOT download your name or any other identifiable information—we are interested in your demographics and likes." Source: In re Cambridge Analytica, LLC, Commission Opinion The statement was false, because the app did in fact collect participating users' personally identifiable information, including their Facebook User IDs. Source: In re Cambridge Analytica, LLC, Commission Opinion

Outcome. The Commission found the statement was an express claim and therefore presumptively material. Source: In re Cambridge Analytica, LLC, Commission Opinion Cambridge Analytica did not rebut the presumption, and the Commission granted summary decision on that count. Source: In re Cambridge Analytica, LLC, Commission Opinion Source: In re Cambridge Analytica, LLC, Commission Opinion

FTC v. National Urological Group, Inc. (Hi-Tech weight-loss supplements, contempt of injunction)

FTC v. National Urological Group, Inc., Order Granting $40 Million Judgment, Sanctions, and Recall of Products from Retail Outlets (N.D. Ga.)

The FTC alleged that the Hi-Tech defendants kept advertising four weight-loss products, Fastin, Stimerex-ES, Benzedrine, and a reformulated Lipodrene, with claims that lacked adequate substantiation, in violation of the Hi-Tech injunction. Source: FTC v. National Urological Group, Inc., Order Granting $40 Million Judgment, Sanctions, and Recall of Products from Retail Outlets (N.D. Ga.) One of the ads was a Fastin print ad carrying a physician's endorsement: “As a Weight Loss Physician I am proud to join Hi-Tech Pharmaceuticals in bringing you a Truly Extraordinary Weight Loss Product. Source: FTC v. National Urological Group, Inc., Order Granting $40 Million Judgment, Sanctions, and Recall of Products from Retail Outlets (N.D. Ga.)

Outcome. The court found that the Hi-Tech defendants made express claims that Fastin, Lipodrene, and Stimerex-ES cause rapid or substantial loss of weight, along with express claims about fat, metabolism, and appetite. Source: FTC v. National Urological Group, Inc., Order Granting $40 Million Judgment, Sanctions, and Recall of Products from Retail Outlets (N.D. Ga.) Those express claims triggered the substantiation requirement, which meant the defendants had to possess competent and reliable scientific evidence in the form of RCTs on the products when the representations were made. Source: FTC v. National Urological Group, Inc., Order Granting $40 Million Judgment, Sanctions, and Recall of Products from Retail Outlets (N.D. Ga.) No one had performed such a trial on any of the four products, so the court held the claims unsubstantiated and in violation of the injunction. Source: FTC v. National Urological Group, Inc., Order Granting $40 Million Judgment, Sanctions, and Recall of Products from Retail Outlets (N.D. Ga.) Source: FTC v. National Urological Group, Inc., Order Granting $40 Million Judgment, Sanctions, and Recall of Products from Retail Outlets (N.D. Ga.)

Exposure

A business that makes a false or unsubstantiated express claim can be ordered to stop. In the ECM matter, the administrative law judge concluded that the FTC Act authorizes an order requiring a respondent that violated the Act to cease and desist from the violating acts or practices. Source: In re ECM BioFilms, Inc., Initial Decision Dropping the claim after a complaint does not by itself prevent such an order. Source: In re ECM BioFilms, Inc., Initial Decision The Commission's own order in that matter reached beyond the claim at issue, because the Commission found that ECM's violations were serious, repeated, and deliberate and warranted fencing-in relief. Source: In re ECM BioFilms, Inc., Opinion of the Commission (The Order)

Money can follow as well. In FTC litigation over Roca Labs, the court found that a price-discount representation was an express claim that was material and deceptive. Source: Roca Labs: Order Granting Plaintiff's Amended Motion for Summary Judgment as to Liability and Denying Defendants' [Amended] Motion for Partial Summary Judgment as to Count Three of the Amended Complaint (Sept. 14, 2018) Having found liability under Section 5, the court held that the FTC was entitled to monetary relief under Section 13(b) for consumer redress, including disgorgement. Source: Roca Labs: Order Granting Plaintiff's Amended Motion for Summary Judgment as to Liability and Denying Defendants' [Amended] Motion for Partial Summary Judgment as to Count Three of the Amended Complaint (Sept. 14, 2018) Where a statute authorizes civil penalties, the per-violation amounts add up, and one federal court noted that the FTC Act and the FDCPA provide for monetary civil penalties of up to $10,000 for each violation. Source: United States v. Commercial Recovery Systems, Inc., Memorandum Opinion and Order

A business that repeats unsubstantiated express claims while already under an injunction faces larger sums. In the Hi-Tech matter, a May 14, 2014 contempt order held the Hi-Tech defendants jointly and severally liable for compensatory sanctions of $40,000,950 and ordered the endorsing physician to pay $120,000. Source: FTC v. National Urological Group, Inc., Order Granting $40 Million Judgment, Sanctions, and Recall of Products from Retail Outlets (N.D. Ga.) Those sanctions equaled the gross receipts from sales of the four products during the period of the contumacious conduct. Source: FTC v. National Urological Group, Inc., Order Granting $40 Million Judgment, Sanctions, and Recall of Products from Retail Outlets (N.D. Ga.) The Eleventh Circuit later vacated that order and remanded the case, holding that the district court had misapplied collateral estoppel when it barred the defendants from presenting evidence to prove their compliance with the injunctions. Source: FTC v. National Urological Group, Inc., Order Granting $40 Million Judgment, Sanctions, and Recall of Products from Retail Outlets (N.D. Ga.)

Good intentions and downstream repetition do not shield the seller. The FTC need not show that the defendant intended to deceive, and an advertiser's good faith is not a defense. Source: Order on Section 5 deception and materiality (federal district court) Source: Order on Section 5 deception and materiality (federal district court) A company that hands customers marketing materials carrying its express claims can also be liable when those customers pass the claims along, under the means-and-instrumentalities doctrine. Source: In re ECM BioFilms, Inc., Opinion of the Commission (The Order)

FAQs

1.151019ecmbiofilmsopinioncomm. In re ECM BioFilms, Inc., Opinion of the CommissionSee also QT and R-Ray Memorandum Opinion and Order. FTC v. QT, Inc., Memorandum Opinion and Order
2.QT and R-Ray Memorandum Opinion and Order. FTC v. QT, Inc., Memorandum Opinion and Order
3.Memorandum Opinion and Order. United States v. Commercial Recovery Systems, Inc., Memorandum Opinion and OrderSee also Ruling Re: Motion in Limine to Exclude Expert Report and Testimony, and Motions for Summary Judgment. Ruling on Motion in Limine and Motions for Summary Judgment (LeadClick Media, Inc.)See also 579836. In re ECM BioFilms, Inc., Initial Decision