Marketing Content and Claims
Most governments and regulatory bodies generally classify the products they regulate based on the intended use and ingredients found therein. One way that this is determined is the intended use of a product based on statements, called “claims,” made about a product, i.e., what the marketer states that a product can do for the consumer.
Regulatory Bodies generally classify the products it regulates based on intended use and ingredients found therein, among other considerations, an initial stage in determining how a product will be regulated is by looking to the intended use.
Because in today’s information age, there are a number of ways to market and sell regulated products, and many types of media content is capable of “spilling” into international markets, it is important to consider how statements made about a product through these various mediums may impact how a product is regulated, and sold. In fact, many regulators consider statements made about a product through various media to constitute part of the overall “labelling” of a product, rendering any statements made through these means to reflect on the product itself. Accordingly, it is critical to ensure none of your marketing materials contain impermissible product claims, inasmuch as these claims have the potential to cause your product to be subject to increased regulation, or incur fines or penalties.
While there are different types of claims, i.e., health claims, disease claims, structure-function claims, some claims may cause a product to be subject to heightened regulation, and this varies market by market. For example, if a product is otherwise classified as a food but its labelling contains disease claims, many regulators will classify this product as a drug. On the other hand, certain claims, called structure-function claims, may be made about dietary supplement products and, if done correctly, will not cause these products to be subject to heightened regulation. Thus, when marketing a regulated product, it is critical to understand what types of claims may be used for your particular product and to ensure that these claims are properly worded.
Counsel Strategy can help you by:
- Reviewing your marketing materials to ensure that no impermissible claims are being made, both in a domestic and/or international context and Reviewing your product labelling, including your actual product labels, websites, and other marketing materials, to determine whether your claims are in compliance with the laws and regulations enforced by the regulatory bodies in which your product will be marketed.
- Providing guidance with respect to any changes that must be made in order for you to remain compliant with the laws and regulations enforced by regulators
- Suggesting alternative language that may lessen the risk of regulatory action, both now and in the future, should you have problematic claims in any of your marketing materials.