Every few years, the FTC puts out helpful guides in order to provide insight into various issues for consumers and businesses. Last December, the FTC released its Health Products Compliance Guidance pertaining to advertising interpretation, substantiation and enforcement issues. The provided examples are particularly instructive.

One example (Example 12) deals with the advertising of nasal strips that will reduce the sound of snoring. Even though the advertiser had “competent and reliable” evidence supporting this claim, the FTC took the position that a prominent disclosure should have been made, indicating that the product does not treat for sleep apnea for which snoring is a primary symptom.

I suspect that most businesses would not have considered the requisite sleep apnea disclosure.  As such, it is always helpful to review the Guides and then consult your counsel.

Scott R. Bialecki

Scott Bialecki, a former FTC attorney and IP litigator, is the co-Chair of Sheridan Ross P.C.'s Litigation Group.