How to effectively and legally tout consumer preferences in your company’s marketing

The Endorsement Guides and ASTM Guide can ensure that consumer feedback does not disproportionately increase liability

Facebook. Twitter. Blog posts. Focus groups. Feedback from these sources often inspires highly effective advertising campaigns. As companies increasingly consider integrating messaging from social media and qualitative data sources into marketing campaigns, it is important to ensure that that the consumer-based content used in advertising is consistent with applicable advertising standards. Failure to adhere to these standards could lead to consumer class actions, Lanham Act litigation, and inquiries from the Food & Drug Administration (FDA), Federal Trade Commission (FTC) or National Advertising Division of the Better Business Bureau (NAD).

As a general rule, advertisers are responsible for customer opinion shared through marketing channels under the advertiser’s control, including simple statements regarding what a consumer “preferred.” Social media introduces a new twist on a company’s responsibility for consumer statements, because consumers now have the capacity to add content to company sponsored pages without review by the advertiser. An advertiser’s level of engagement with consumer-generated content can make the company liable for the consumer-generated comment.

The ASTM International “Standard Guide for Sensory Claim Substantiation” provides tips for substantiating most sensory claims in advertising, including consumer preference claims (e.g., “our product tastes better than X product” or “our product is preferred over Y product”). The ASTM Guide has been endorsed by the FTC and NAD and reinforces the legal principle that there are objective ways to measure consumer opinion about product attributes. As noted in the ASTM Guide, qualitative research, such as focus groups, are not considered to be acceptable forms of claim support because experts in the field do not believe the results of qualitative research can be projected to a larger population of consumers. In the alternative, the ASTM Guide provides a helpful objective metric for determining the typical results that are likely to be experienced by consumers using a product by outlining several parameters for developing questionnaires that can be relied upon for advertising. Important recommendations discussed in the ASTM Guide include the following:

  • Ensure the sample population matches the intended product users. The sample population should match the audience to whom the claim is directed with special attention to demographics and geographic location.
  • Ensure competitor products tested are of equal quality (including shelf-life) to the manufacturer’s product to which they are being compared. The ASTM Guide instructs companies on how to appropriately select and handle competitor products to ensure the treatment of the products does not undermine the results of the consumer preference testing.
  • Ensure the questions or ranking scale does not bias the results. The ASTM Guide discusses the pros and cons of various interviewing techniques and the types of questions that should be used based on the claim the advertiser would like to support. For example, the ASTM Guide notes that, when attempting to measure consumer acceptance of a product, a nine-point hedonic scale is traditionally used because it is reliable, valid, and of practical use. Hedonic sales measure the degree of liking of the level of an individual attribute in a product and, when there is a large enough difference in the mean ratings on a hedonic acceptance scale, a preference can be inferred.
  • Monitor the question design. The ASTM Guide outlines important considerations for the questionnaire design including the format, components, and ordering. For example, the question order can greatly limit the weight given to the results of a survey. The ASTM Guide recommends that, where a survey is intended to assess consumer preference, the questions addressing the general or overall impression of a product come very early in a survey because, “in general, questions asked first are assumed to be more free of influence or biases that may affect questions appearing later.”

Each of the aforementioned survey elements can affect whether the “typical consumer experience” described by a company in advertising is considered to be truthful, non-misleading, and substantiated by a court, the FTC, or NAD.

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John E. Villafranco

John E. Villafranco is a partner in the advertising and marketing practice at Kelley Drye & Warren LLP in Washington, D.C. Mr. Villafranco can be...

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Raqiyyah R. Pippins

Raqiyyah R. Pippins is an associate in the food and drug and advertising practices at Kelley Drye & Warren LLP in Washington, D.C. Ms. Pippins...

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