In a wide-ranging discussion on claims, substantiation and reducing business risk, attorneys asserted that manufacturers had several options to reduce the prevalence of lawsuits, but the pet industry continues to have its share of concerns.
“One of the trends that we've noticed is focused on the presence of undisclosed micro contaminants [in products] … PFAS, heavy metals and other similar substances, especially where a product is being marketed as safe or high quality or trusted by,” said Rend Al-Mondhiry, partner at Amin Wasserman Gurnani. “Things of that nature tend to be in the products that are targeted and are a never-ending source of class action lawsuits.”
Consequently, companies who are above board may still find themselves in an inhospitable legal climate but can take steps to prevent these lawsuits, the panelists outlined in the discussion.
Clinically proven products?
The strongest claim a company can make about its products is whether they are clinically proven, the attorneys said.
“It's an establishment claim meaning that you actually have to have substantiation to establish that it’s true,” Al-Mondhiry said.
She added that companies should be aware that they need to account for all ingredients in the product and whether, for example, there’s an antagonistic or some other kind of effect that would impact the efficacy of the product.
When it comes to conducting a study on an ingredient or product, it needs to reach statistically significant results, said Jeannie Perron, JD, DVM, partner at Covington & Burling and panel moderator.
“It needs to be run long enough so that you can achieve the results that you're trying to achieve,” she said.
Additionally, if a company is still developing its own evidence and has yet to complete an individual study, they may rely on previously published studies to support the efficacy of a product.
Todd Harrison, a partner at Venable, said dose matters when companies use outside studies to support their products' claims.
“If you don’t have anywhere near the dose [outlined in those studies] in your products, then your products are not science-backed,” he said.
Deepti Kulkarni, partner at Covington & Burling, added that companies want to make sure that the evidence from outside studies supports the claims that they make.
“If you're making a claim about, let's say, memory or cognition later in life or something along those lines, does the study fully capture the extent of memory, recognition or cognition? Or was it about a subset of factors?” Kulkarni asked. “Consider whether those studies can be relied upon, whether they can be bridged to the product that you are marketing.”
Marketing claims
When companies create the wording on their claims, they must review them through the lens in which the courts and the Federal Trade Commission would assess those claims, according to Kulkarni.
“What would a reasonable consumer read that claim as and come away with?” she asked.
That’s ultimately what the legal system is concerned about, Al-Mondhiry added. “As a general rule, you are responsible for all claims that are either implied by or expressly taken away from your advertising.
"So even those claims you didn't intend to make, if those can be reasonably implied from the advertising as a whole, then you are responsible for that. Look holistically at your advertising and what are all the potential messages that can be taken away by reasonable consumers.”
The Better Business Bureau’s National Advertising Division provides information to users who are trying to determine how regulators would view a claim and can give companies insight into how an attorney might take a stance, Perron said.
“Imagine that you are a plaintiff's lawyer, and you want to get money for your client by attacking that claim,” she explained. “What in there is weak and should be strengthened? And if you go through that mental exercise, I think you'll be more likely to come out with strong claims that you can support.”
Companies may also use veterinarians to bolster a claim to market ingredients or products, but that may also raise concerns.
“Just because you have a vet that recommends it, it doesn’t mean it’s a very strong claim to the FTC,” Harrison said. “You have to have survey evidence.”
About 200 to 300 veterinarians should be surveyed about whether they recommend the product as part of their practice, he said. Additionally, if a claim said a veterinarian formulated the product, the doctor must have actively participated in the creation of the item and not that the company “sends it over to the vet for their approval,” Harrison said.
