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Better Business Bureau’s National Advertising Division Annual Conference 

Keynote Address 

Commissioner Julie Brill 

September 28, 2015 

Thank you for that introduction. It is a great pleasure to be back in New York speaking 

to NAD about the Federal Trade Commission’s advertising initiatives. I was lucky enough to 

address this group in 2012, and looking back on my remarks three years ago, I am amazed at 

how much has changed – and perhaps even more amazed at how much has not changed. 

For example, in 2012, I talked about the spectacular leaves this time of year in my 

hometown of Randolph, Vermont. I haven’t been back there for about a week, but my family is 

sending “see what you are missing” pictures, and I can report – the foliage is still spectacular. 

In 2012, I talked about the excitement over the Washington Nationals making the 

playoffs – the first time for a D.C. baseball team since 1933. Less than two weeks after that 

speech, the Cardinals ended the Nats’ season and broke every baseball fan’s heart in the 

Washington metro area. March of this year, Sports Illustrated picked the Nats to take the 

National League East and possibly go on to win it all. But by the beginning of this month, the 

team was all but eliminated from post-season play. I guess that’s a slight improvement – a 

month less worth of raised hopes, a little less pain when the season came crashing down. 

And when I spoke to you in 2012, we were a month out from national elections, and all 

anybody could talk about was politics. I talked about the rise of fact checking and its impact on 

campaigns, the benefits of a well-informed electorate, the parallels with well-informed 

consumers, and the role that both advertisers and the FTC play in making sure consumers are 

able to make thoughtful decisions about the products they buy and the personal data they share. 

Now, in 2015, we are a year and a month out from national elections, and all anybody can 

talk about is politics. Again, the campaign landscape is dominated by talk of – if not facts – then 

“telling it like it is,” and “straight talk.” The chattering classes this year are obsessed with frontrunner Donald Trump and how the billionaire reality TV star has managed not to flame out yet, 

as they have predicted every week since he entered the race. One of the primary reasons people 

polled say they support Trump is because he speaks his mind and doesn’t hide behind consultantcrafted images or slick TV ads. As one Trump backer told The Atlantic, “What you see is what 

you get, all the cards are on the table.”1

 Stephen Colbert presciently invented the word – 

“truthiness” – for truth that is not necessarily defined by what is fact, but instead by what seems 

real. And what seems real is what comes to us, ostensibly unfiltered, through YouTube videos, 

Twitter trends, Facebook posts, and reality TV shows. 

This is one of the biggest changes I have seen since we last met. With the rapid rise of 

social media and constant connectivity through more and more devices swapping more and more 

 

1

 Conor Friedersdorf, Why Do People Support Donald Trump? THE ATLANTIC (Aug. 17, 2015), available at

http://www.theatlantic.com/politics/archive/2015/08/donald-trump-voters/401408/.
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information, we are entering the age of the democratization of truth. If it is trending, it must be 

true. If it has five stars on Yelp, one thousand positive reviews on Open Table, or over 90 

percent on Rotten Tomatoes, the opinion must be fact. 

It is against this new backdrop that I would like to address several advertising issues of 

special interest to the FTC, a list strikingly similar to the issues I addressed in 2012: endorsement 

disclosures; data use and disclosures in ad tech; health claims for mobile apps, dietary 

supplements and other products and services. And I will launch our discussion from the same 

touch point I did in 2012, because while the swirling cyber-atmosphere is reshaping the world for 

advertisers and the FTC, basic principles remain unchanged. As I said back then: “The 

fundamental goal of [the advertising industry] is the same as it always was: to sell a product or a 

service. And the FTC’s interest in advertising is the same as it has always been: to make sure 

ads are providing consumers with the information they need to make meaningful choices about 

the goods and services they want to buy.”2

Endorsement and Testimonial Disclosures in New Media 

The transformation of the environment in which consumers make their purchasing 

decisions was brought home to me a couple of weeks ago, in my own home. I stuck my head in 

my teenage son’s door to yell at him to stop playing video games and get outside to rake up some 

of those spectacular leaves, and I realized he was not playing video games. He was watching 

YouTube personality “PewDiePie” play – and comment on – video games – Call of Duty to be 

precise. PewDiePie is not his given name, I am guessing, but it is his real name in the minds of 

his 39 million subscribers on YouTube, a Guinness World Record.3 That’s more subscribers 

than music artist Taylor Swift and the band One Direction combined.4

PewDiePie’s success is no fluke. YouTube content related to gaming generates hundreds 

of billions of views and claims 15% of content on the site. 5 To cater to this active market, the 

company recently launched a video network devoted to clips of users, players, and fans playing 

video games.6 

 And gamers aren’t the only ones who are video blogging. A recent study by 

GlobalWebIndex found that 42% of Internet users logged into a video blog in the last month and 

listened to video bloggers discuss everything from beauty products to cat breeds to whether 

NASA faked the moon launches. Many of these video bloggers monetize their creations through 

 

2 See Keynote Address by Commissioner Julie Brill at the Better Business Bureau’s National Advertising Division 

Annual Conference. New York, New York (Oct. 1, 2012), available at 

https://www.ftc.gov/sites/default/files/documents/public_statements/opening-remarks-commissioner-juliebrill/121001nadspeech.pdf.

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 Kevin Lynch, The Voice, PewDiePie and Dr. Dre Cement Their Place In New Guinness World Records 2016 

Book, GUINNESS WORLD RECORDS (Aug. 31, 2015), available at

http://www.guinnessworldrecords.com/news/2015/8/the-voice-pewdiepie-and-dr-dre-%E2%80%A8cement-theirplace-in-new-guinness-world-record-394549. 4 See id.; PewDiePie Channel, http://www.youtube.com/users/PewDiePie (last visited Sept. 27, 2015). 5

 Carla Marshall, 15% of ALL YouTube Videos Relate to Gaming: Minecraft & PewDiePie FTW, REELSEO (Dec. 13,

2014), available at http://www.reelseo.com/15-per-cent-youtube-gaming-videos/. 6 Chris Foxx, YouTube Gaming Launch Poses Challenge To Twitch, BBC NEWS (Aug. 26, 2015), available at

http://www.bbc.com/news/technology-34015600. 
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online ads – though I am pretty sure the Area 51 crowd is not making a fortune. To maximize 

exposure, some video bloggers and content creators partner with “multi-channel” entertainment 

networks, which sell ad space on the video blogs. So far, so good. But what happens if a video 

blogger is paid to provide a review for a game or a gaming console? In the absence of 

appropriate disclosures, viewers would likely be deceived since they reasonably believe that the 

video commentary represents an unbiased user experience. If a real-life teenager in a jerky video 

feed tells you that Grand Theft Auto V is on fleek, well, it must be true, right? 

 This is where effective disclosures come in. The requirement is pretty straightforward 

and reflects that same philosophy that I discussed in 2012, and that remains true at the FTC 

today: even in the face of new challenges and new technologies, our fundamental goal is to make 

sure that consumers have the information they need to make meaningful choices. In the case of 

online and video reviews, that means that consumers ought to know about connections between 

endorsers and advertisers. As multi-channel entertainment network, Machinima, learned earlier 

this month, the FTC’s Endorsement Guides apply as much to vloggers, online content creators, 

and those who pay them, as they do to any other advertiser or endorser. 

 Machinima ran an ad campaign on behalf of Microsoft and its advertising agency, 

Starcom MediaVest Group, to promote the Xbox One gaming system and several games. As 

part of Machinima’s ad campaign, it paid and solicited video bloggers to post Xbox game play 

videos that appeared to reflect the objective opinions of the video bloggers. The resulting videos 

did not disclose adequately, and typically did not disclose at all, that the video bloggers were 

compensated, a practice my fellow FTC Commissioners and I had no hesitation in labeling 

deceptive. As part of the proposed settlement, Machinima is prohibited from similar deceptive 

conduct, and it must ensure that any reviewers under its network clearly and conspicuously 

disclose when they have been paid for endorsements.7

 

And what of Microsoft and Starcom? Why didn’t the FTC bring an action against them? 

As we explained in our closing letters to these two companies, the Commission considered that 

these companies had good disclosure policies and procedures, and the Machinima incident was 

isolated, occurring in spite of these good policies. In addition, both companies required that 

Machinima remedy the situation once they learned that Machinima had paid endorsers without 

making the proper disclosures, and they adopted additional safeguards to prevent future 

incidents.8

 

 Twitter is another medium in which seemingly real endorsements from real people can 

run afoul of the FTC’s enforcement of truth in advertising. Last November, Sony and its ad 

agency, Deutsch LA, agreed to settle charges about their promotion of Sony’s PS Vita handheld 

gaming console.9 The Commission believed that the companies misled consumers about the 

 

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 FTC, Press Release, Xbox One Promoter Settles FTC Charges That it Deceived Consumers With Endorsement 

Videos Posted By Paid ‘Influencers’ (Sept. 2, 2015), available at https://www.ftc.gov/news-events/pressreleases/2015/09/xbox-one-promoter-settles-ftc-charges-it-deceived-consumers. 8

 FTC, Closing Letters to Microsoft and Starcom Counsel (Aug. 6, 2015), available at

https://www.ftc.gov/system/files/documents/closing_letters/nid/150902machinima_letter.pdf. 9

 FTC, Press Release, Sony Computer Entertainment America To Provide Consumer Refunds To Settle FTC 

Charges Over Misleading Ads For PlayStation Vita Gaming Console (Nov. 25, 2014), available at

https://www.ftc.gov/news-events/press-releases/2014/11/sony-computer-entertainment-america-provide-consumer-
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capabilities of the PS Vita. On top of that, Deutsch LA asked its employees to post positive 

tweets about the PS Vita to their personal Twitter accounts using the same hashtag – 

#gamechanger – that Deutsch used in its advertisements. We believed that these tweets were 

misleading because they did not disclose that they were written by employees with a material 

connection to the product. The orders against Sony and Deutsch prohibited them from engaging 

in similarly misleading practices, and Sony was ordered to administer a redress program 

providing a $25 refund or $50 merchandise voucher to eligible consumers. 

 Consumers are turning more and more and more to YouTube and Twitter for their 

product information, to be sure, but perhaps an even more powerful influence on their choices is 

online user reviews. I recently heard about a young woman who got married in what she called a 

“wedding by Yelp.” She booked her reception at a site with 99 positive reviews on theknot.com, 

found a caterer with 46 five-star reviews on Yelp, wrote personalized wedding vows with a book 

from Amazon with 106 thumb ups from readers, and booked the number one rated Maui hotel on 

Trip Advisor for her honeymoon. 

 Like the 60% of consumers who read online reviews before making a purchase 

decision,10 this bride trusted the assessments of real people more than the paid advertising she 

saw on – or offline. But at the FTC, we are concerned that an aura of authenticity can shield 

reviews that deceive rather than inform consumers. Earlier this year, the FTC entered into a 

consent order with AmeriFreight, an auto shipment broker that bragged about “more highly 

ranked ratings and reviews than any other company in the Auto Transport Business.”11 

However, AmeriFreight did not mention that it gave consumers a $50 discount to review the 

company’s services and encouraged positive reviews by offering a $100 monthly prize for the 

review with the most creative subject title and “best content.” The Commission believed that 

AmeriFreight failed to properly disclose that its reviewers were paid endorsers and that the 

company’s claims about its ratings were deceptive. Our settlement requires AmeriFreight to 

disclose material connections with endorsers clearly and prominently in the future. 

 Cases like Machinima, Sony and AmeriFreight should serve as a clear message that, even 

in the age of YouTube, Twitter, and other people-powered social media platforms, fundamental 

disclosure principles still apply. Endorsements must be truthful and not misleading. If there is a 

connection between an endorser and an advertiser that would affect how consumers evaluate the 

review, that connection must be clearly and conspicuously disclosed. 

 refunds; see also FTC, Press Release, FTC Approves Final Orders Related to False Advertising by Sony Computer 

Entertainment America and Its Ad Agency Deutsch LA for PS Vita Game Console (Mar. 31, 2005), available at

https://www.ftc.gov/news-events/press-releases/2015/03/ftc-approves-final-orders-related-false-advertising-sonycomputer. 

10 Graham Charlton, Ecommerce Consumer Reviews: Why You Need Them and How To Use Them, ECONSULTANCY

– Blog (July 8, 2015), available at http://www.brandview.com/en/2015/03/customer-reviews-affect-61-percent-ofonline-shoppers-2/; see also, Neilsen, Global Survey of Trust In Advertising Report (Sept. 26, 2013), available at

http://www.nielsen.com/us/en/insights/reports/2013/global-trust-in-advertising-and-brand-messages.html. 11 FTC, Press Release, FTC Stops Automobile Shipment Broker from Misrepresenting Online Reviews (Feb. 27, 

2015), available at https://www.ftc.gov/news-events/press-releases/2015/02/ftc-stops-automobile-shipment-brokermisrepresenting-online. 
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To help the ad industry understand how to comply with our Endorsement Guides in this 

brave new world of social media and word of mouth advertising, in June, the FTC updated its 

“What People Are Asking” FAQs to the Endorsement Guides.12 We outlined how to make 

proper disclosures for blogging and video blogging, social media campaigns, pre-recorded and 

live-stream gaming videos, and employee endorsements. If you or your clients are involved in 

word of mouth salesmanship – and truthfully, who isn’t involved in this powerful form of 

marketing these days13 – I urge you to review our updated FAQs. 

Data Collection and Use in Advertising 

Advertising has become one of the most technologically advanced and data driven 

industries in our economy.14 More than ever, advertisers leverage data to reach customers, 

personalize experiences, and make predictions about consumer behavior. Targeted advertising 

can be good for your business, for business in general, and for consumers. But how much data is 

collected about consumers, how it is stored, and how it is used, raise significant privacy 

concerns. And while these are definitely 21st century conundrums, the principles with which the 

FTC protects consumer privacy date back over 100 years, to concerns first raised by Louis 

Brandeis. Consumers must be given reasonable notice of and control over how their personal 

data is collected and used – and that applies regardless of how many zettabytes of data we are 

talking about. 

A newly emerging form of tracking uses sensors to track customers’ mobile phone 

signals to detect individualized or aggregated traffic patterns about consumers as they travel 

through stores and malls. The amount of data collected and the uses for the data can vary, and so 

do the privacy challenges the practice raises.15 For instance, a retail mobile site might not track 

data that is unique to a device or user, or it might immediately aggregate the data collected 

without linking it to the user or her device. Retailers use this sort of aggregated information to 

improve their offerings and store layouts. Other retail mobile location trackers collect device 

level data to serve consumers with ads on their smartphones that might be relevant to them as 

they shop. 

 

12 See FTC, The FTC’s Endorsement Guides: What People Are Asking, available at https://www.ftc.gov/tipsadvice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking. 13 Kimberly Whitler, Why Word Of Mouth Marketing Is the Most Important Social Media, FORBES (July 17, 2014), 

available at http://www.forbes.com/sites/kimberlywhitler/2014/07/17/why-word-of-mouth-marketing-is-the-mostimportant-social-media/. 

14 Infographic— What Data-Driven Marketing Looks like in 2015: Consumer demand for personalization makes 

information most valuable currency, ADWEEK (Mar. 23, 2015), available at

http://www.adweek.com/news/technology/infographic-what-data-driven-marketing-looks-2015-163607. 15 See Ashkan Soltani, Privacy Trade-Offs In Retail Tracking, FTC - Tech@FTC Blog (Apr. 30, 2015), available at 

https://www.ftc.gov/news-events/blogs/techftc/2015/04/privacy-trade-offs-retail-tracking. 
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At a bare minimum, where device-level data is collected or stored, it is critical that 

consumers are aware of retail mobile location tracking when it is happening, and are able to 

exercise some control over its use. Without better communication to consumers, we may see a 

demand for apps that automatically disable transmission of signals upon contact with tracking 

networks.16

However, it is not enough that companies communicate with and provide choices to 

consumers regarding retail mobile location tracking. They must also be truthful about these 

choices. And that is where retail mobile location tracking company Nomi Technologies fell 

short, in the Commission’s view.17 Nomi’s privacy policy stated that it would “always allow 

consumers to opt-out of Nomi’s service on its website as well as at any retailer using Nomi’s 

technology.” The problem? For the first nine months of 2013 – during which time Nomi 

collected information about nine million mobile devices – the promised in-store opt-out 

mechanism was not available, and consumers were not informed when tracking was taking place. 

Nomi settled charges with the FTC that it violated the FTC Act by misrepresenting the choices 

that would be offered to consumers and the information that would be made available about 

retail location tracking. 

 

The issues surrounding tracking consumers are magnified when we consider advances in 

technology that move well beyond cookies and tracking on one device. Companies are creating 

integrated marketing profiles that track consumers across multiples devices, often supplementing 

these profiles with information from third-party offline sources. Companies are also expanding 

into the use of less detectable techniques, like device fingerprinting, to identify multiple internetconnected devices and build profiles around the users of those devices. Because these enhanced 

techniques are invisible, there isn’t exactly a way for consumers to find out that it’s happening, 

let alone exercise choices about its use. 

For over fifteen years now,18 the Federal Trade Commission has pushed for more 

consumer control over third-party data collection online. In 2010, we called for the 

establishment of a universal “Do Not Track” tool where consumers could opt out of cross-site 

data collection in their browsers.19 And in 2012, at an event at the White House, major trade 

associations committed to finding a way to honor browser-based opt-outs by the end of that 

year.20 The World Wide Web Consortium – or W3C – recently standardized the meaning and 

 

16 See id. 17 FTC, Press Release, Retail Tracking Firm Settles FTC Charges it Misled Consumers About Opt Out Choices 

(Apr. 23, 2015), available at https://www.ftc.gov/news-events/press-releases/2015/04/retail-tracking-firm-settlesftc-charges-it-misled-consumers. 

18 See generally, FTC, PRIVACY ONLINE: FAIR INFORMATION PRACTICES IN THE ELECTRONIC MARKETPLACE (May 

2000) (FTC Report to Congress), available at https://www.ftc.gov/sites/default/files/documents/reports/privacyonline-fair-information-practices-electronic-marketplace-federal-trade-commission-report/privacy2000text.pdf. 

19 FTC, PROTECTING CONSUMER PRIVACY IN AN ERA OF RAPID CHANGE: A PROPOSED FRAMEWORK FOR 

BUSINESSES AND POLICYMAKERS at 66-68 (Dec. 2010) (Preliminary Staff Report), available at 

https://www.ftc.gov/sites/default/files/documents/reports/federal-trade-commission-bureau-consumer-protectionpreliminary-ftc-staff-report-protecting-consumer/101201privacyreport.pdf. 

20 White House, Blog, We Can’t Wait: Obama Administration Calls for a Consumer Privacy Bill of Rights for the 

Digital Age (Feb. 23, 2012), available at https://www.whitehouse.gov/blog/2012/02/23/we-can-t-wait-obamaadministration-calls-consumer-privacy-bill-rights-digital-age. 
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operation of the “Do Not Track” mechanism.21 And yet, here we are, in 2015, and consumers’ 

still do not have an adequate means to opt-out of data collection. It is more clear than ever that 

self-regulation needs to keep up with the times: after all these years, consumers still don’t 

understand what’s happening with their personal information, and they continue to struggle to 

control targeted advertising and data collection. 

This is even true for advertising targeted to sensitive health conditions – industry codes 

may rule out the use of doctor diagnoses for targeting, but web searches and visiting medical 

websites seem to be fair game. So the fact that you surfed the web or used an app to learn about 

an STD or heart disease can be added to behavioral profiles and lead to targeted ads on other 

websites. For too long, this has been a loophole in industry rules, and it should be closed. 

Truthfully, it is surprising to me that the ad tech industry hasn’t been more motivated to 

offer consumers better tools to protect their privacy, because it has always been the case that 

consumers could take matters into their own hands. And that is precisely what appears to be 

happening. PageFair recently reported that over 45 million Americans are using ad-blocking 

technologies, as are 144 million customers around the globe.22 And that was before Apple 

released iOS 9 – which enabled consumers to more easily incorporate ad-blocking on their 

iPhones and iPads – a couple of weeks ago. Immediately, an ad-blocking app named “Peace” 

became the number one paid app in the U.S. App Store.23 After two days in the store, and 

38,000 downloads,24 the developer withdrew the app because he was concerned that its blocking 

wasn’t sufficiently sophisticated.25 But guess what? Peace’s number one spot in the App Store 

was then replaced by Crystal, another ad-blocker.26

Many ad-blocking programs – like EFF’s Privacy Badger and Disconnect.me – will 

whitelist advertisers that commit to limit data retention. It has also surprised me that, so far, few 

advertisers seem willing to take up the offer. 

Clearly, there is consumer demand for ad-blocking. I urge industry to create robust and 

innovative tools to address this demand in a sophisticated way. Not to find ways around 

consumer choice, but to provide consumers with something they clearly want: to see advertising 

that respects their privacy and that they can trust. 

* * * * * 

 

21 World Wide Web Consortium (Aug. 20, 2015), available at http://www.w3.org/TR/tracking-dnt/. 22 PageFair, The Cost of Ad Blocking: PageFair and Adobe 2015 Ad Blocking Report at 5 (2015), available at

http://downloads.pagefair.com/reports/2015_report-the_cost_of_ad_blocking.pdf; Kate Kaye, Do Not Track Is 

Finally Coming, but not as Originally Planned, ADVERTISING AGE (July 17, 2015), available at 

http://adage.com/article/privacy-and-regulation/track-finally-coming-planned/299536/. 23 Sarah Perez, A Day After iOS 9’s Launch, Ad Blockers Top the App Store, TECHCRUNCH (Sept. 17, 2015), 

available at http://techcrunch.com/2015/09/17/a-day-after-ios-9s-launch-ad-blockers-top-the-app-store/. 24 Jack Marshall, Apple Propels an Ad-Blocking Cottage Industry, WALL STREET JOURNAL (Sept. 24, 2015), 

available at http://www.wsj.com/articles/propelled-by-apple-ad-blocking-cottage-industry-emerges-1443115929. 25 Marco Arment, Just doesn’t feel good, MARCO.ORG (Sept. 18, 2015), available at

http://www.marco.org/2015/09/18/just-doesnt-feel-good. 26 Chris Welch, Best-Selling iOS Ad Blocker Crystal Will Let Companies Pay To Show You Ads, THE VERGE (Sept. 

24, 2015), available at http://www.theverge.com/2015/9/24/9393941/clear-ios-ad-blocker-offering-paid-whitelist. 
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Of course, the tracking we are seeing today isn’t just cross-site – it’s cross-device. So 

what you do on your computer at work might end up influencing the ads you see on your iPad at 

home – or even on your TV. 

On November 16, we will host a workshop to examine privacy issues raised by crossdevice tracking.27 Among other critical questions, we will ask: what are the benefits and risks 

associated with the use of these new tracking technologies? Do current self-regulatory standards 

apply to various cross-device tracking techniques, and do they provide consumers with sufficient 

protections? As consumers interact with advertisers across smart phones, tablets, connected 

TVs, and wearables, how can companies make their tracking more transparent and give 

consumers greater control? 

Two months after our cross-device tracking workshop, the Commission will host Privacy 

Con, a conference that will bring together researchers, academics, industry, consumer advocates, 

and regulators to discuss the latest research related to consumer privacy and data security.28 

Among many other topics, we are interested in learning what types of consumer privacy notices 

and disclosures are effective online, in the mobile environment, and on connected devices, 

including those with no user interface. 

Health Claims for Mobile Apps, Dietary Supplements and Other Products and Services 

Over the past year, the Commission has taken noteworthy actions in the area of online 

games and mobile apps that purport to treat health or cognitive conditions. In one set of cases, 

we challenged marketers who each claimed that their mobile apps, called “Mole Detective” and 

“MelApp,” could detect symptoms of melanoma and assess the risk of melanoma in its early 

stages. We found that these marketers did not have adequate evidence to support such claims.29 

In another case, online game developer Focus Education claimed that its children’s computer 

game, Jungle Rangers, permanently improved behavior associated with ADHD, and could 

improve focus, memory, and school performance.30 We believed that these claims were 

similarly unsubstantiated. Most recently, the Commission and Carrot Neurotechnologies settled 

charges that the company deceptively marketed a mobile app that purportedly improved users’ 

vision.31 

 

27 FTC, Press Release, FTC To Host Workshop on Cross-Device Tracking Nov. 16 (Mar. 17, 2015), available at 

https://www.ftc.gov/news-events/press-releases/2015/03/ftc-host-workshop-cross-device-tracking-nov-16. 28 FTC, Press Release, FTC Announces PrivacyCon, Issues Call to Whitehat Researchers and Academics for 

Presentations (Aug. 28, 2015), available at https://www.ftc.gov/news-events/press-releases/2015/08/ftc-announcesprivacycon-issues-call-whitehat-researchers. 

29 FTC, Press Release, FTC Cracks Down on Marketers of “Melanoma Detection” Apps (Feb. 23, 2015), available 

at https://www.ftc.gov/news-events/press-releases/2015/02/ftc-cracks-down-marketers-melanoma-detection-apps. 30 FTC, Press Release, Makers of Jungle Rangers Computer Game for Kids Settle FTC Charges that They Deceived 

Consumers with Baseless “Brain Training” Claims (Jan. 20, 2015), available at https://www.ftc.gov/newsevents/press-releases/2015/01/makers-jungle-rangers-computer-game-kids-settle-ftc-charges-they. 31 FTC, Press Release, FTC Charges Marketers of ‘Vision Improvement’ App With Deceptive Claims (Sept. 17, 

2015), available at https://www.ftc.gov/news-events/press-releases/2015/09/ftc-charges-marketers-visionimprovement-app-deceptive-claims. 
9 

And of course, advertising substantiation issues in more traditional advertising media 

were also on the Commission’s radar screen this past year. 

The year began with the D.C. Circuit’s affirmance of the Commission’s 2013 decision 

involving advertising for POM Wonderful 100% Pomegranate Juice and POMx supplements, 

which claimed the products could treat, prevent, or reduce the risk of heart disease, prostate 

cancer, and erectile dysfunction, and were clinically proven to have such benefits.32 Although 

the court did not uphold the FTC order requirement for two randomized and controlled human 

clinical trials by POM for future disease claims, the court did affirm the FTC’s order requiring 

POM to have at least one such study before making disease prevention or treatment claims, and 

said that – depending on the facts of the case – two randomized, controlled clinical trials might 

be warranted in other cases.33 

Two months ago, we entered into a consent order with the marketers of a dietary 

supplement called Procera AVH regarding their claims, which we believed were deceptive, that 

the supplement could reverse age-related mental decline and memory loss.34 Among other 

injunctive measures, these marketers paid $1.4 million to settle the charges. 

Just today we announced a suit we filed in Florida federal district court against Roca 

Labs regarding our concerns over its claims that its dietary supplement powder limits a user’s 

stomach capacity by 80%, which can then purportedly lead to as much as 21 pounds of weight 

loss in one month, without calorie restrictions or exercise. The company markets the product as 

an alternative to gastric bypass surgery, and claims it is scientifically proven to have a 90% 

success rate, and is safe and effective for weight loss in children as young as six years old. In 

addition to our concerns that Roca Labs’ weight loss claims for its powder are false and 

unsubstantiated, we also alleged that the company further deceives consumers by failing to 

disclose that it paid users to provide “success story” testimonials. We also believe that Roca 

Labs informs consumers, when they receive the supplement, that they were given a price 

“discount” in exchange for their agreement to refrain from making any disparaging statements 

about the company or its products. In our complaint, we charge that the defendants’ use of this 

non-disparagement provision is unfair and harmful because it suppresses truthful information, 

and likely resulted in consumers purchasing products they would not have otherwise 

purchased.35 

* * * * * 

 

32 See FTC, Press Release, Statement by FTC Chairwoman Edith Ramirez on Appellate Ruling in the POM 

Wonderful Matter (Jan. 30, 2015), available at https://www.ftc.gov/news-events/press-releases/2015/01/statementftc-chairwoman-edith-ramirez-appellate-ruling-pom. 33 POM Wonderful, LLC, et al. v. FTC, Opinion Affirming Commission Order, Case No. 13-1060 (D.C. Cir., Jan. 

30, 2015), available at https://www.ftc.gov/system/files/documents/cases/pom_dc_circuit1_0.pdf. 34 FTC, Press Release, Supplement Marketers Will Relinquish $1.4 Million to Settle FTC Deceptive Advertising 

Charges (July 8, 2015), available at https://www.ftc.gov/news-events/press-releases/2015/07/supplement-marketerswill-relinquish-14-million-settle-ftc. 

35 FTC v. Roca Labs, Inc., Complaint at ¶ 44 (M.D. Fla, Sept. 24, 2015), available at

https://www.ftc.gov/system/files/documents/cases/150928rocalabscmpt.pdf. 
10 

Our focus on unsubstantiated health claims also includes homeopathic drugs. 

Homeopathy, a centuries’ old alternative practice, originally involved the creation of niche 

products formulated for an individual user. Today, it has grown into a multibillion-dollar overthe-counter industry.

36 Unlike other over-the-counter drugs and dietary supplements, the FDA 

currently does not require that over-the-counter homeopathic drugs demonstrate efficacy if they 

satisfy certain conditions. 

In contrast, the FTC’s advertising substantiation standard clearly requires that efficacy 

claims of all over-the-counter drugs, whether homeopathic or not, are supported by competent 

and reliable scientific evidence. Some advertisers incorrectly believe that homeopathic drugs 

that are in compliance with the FDA rules do not have to comply with FTC’s ad substantiation 

requirements. In addition, we conducted a study that indicates a significant number of 

consumers do not understand homeopathy and how it is regulated.37 Because of this confusion 

both among advertisers and consumers, we recently urged the FDA to change its regulatory 

framework to eliminate the potential conflict with the FTC’s ad substantiation policy.38

Just last week, we held a workshop on Homeopathic Medicine and Advertising where we 

brought together medical professionals, industry representatives, consumer advocates, and 

government regulators to examine how the homeopathic industry is regulated, changes in 

advertising for over-the-counter homeopathic drugs, and the application of Section 5 to 

advertising for these products.39 The NAD participated in our workshop and conveyed a 

welcome message in one of our panels that is worth repeating: at the NAD, it doesn’t matter 

whether you’re an over-the-counter commercial drug or an over-the-counter homeopathic drug. 

If you want to make health-related claims, including claims made on the label of the product, you 

must have competent and reliable scientific evidence, in the form of randomized, human clinical 

trials, to support those claims.40 

* * * * * 

 The 2012 elections brought us the website factcheck.org, and the 2016 contest has 

yielded the Twitter handle @RealDonaldTrump. Advertisers have not missed the trend, and are 

more and more taking to social media and online reviews to build buzz around products and 

services. As advertisers make that move, following consumers, so too does the FTC, tweaking 

and tailoring our guidance and standards to fit this data-driven, online, connected era. 

 

36 Homeopathic Product Regulation: Evaluating the Food and Drug Administration’s Regulatory Framework After a 

Quarter-Century; Public Hearing, 80 Fed. Reg. 16327, 16328 (Mar. 27, 2015), available at

http://www.gpo.gov/fdsys/pkg/FR-2015-03-27/pdf/2015-07018.pdf. 37 FTC, Staff Comment Before the Food and Drug Administration Regarding the Current Use of Human Drug and 

Biological Products Labeled As Homeopathic, and the FDA's Regulatory Framework For Such Products (“FTC 

Staff Comment to FDA”), Ex. B. (Aug. 21, 2015), available at https://www.ftc.gov/policy/policy-actions/advocacyfilings/2015/08/ftc-staff-comment-food-drug-administration-regarding. 

38 See generally, FTC Staff Comment to FDA. 

39 FTC, Press Release, Homeopathic Medicine & Advertising: An FTC Workshop (Sept. 21, 2015), available at 

https://www.ftc.gov/news-events/events-calendar/2015/09/homeopathic-medicine-advertising. 40 Homeopathic Medicine & Advertising: An FTC Workshop (Sept. 21, 2015). 
11 

 It does occur to me, as I am sure it has to many of you, that there really is nothing new 

about our willingness to trust what seems real over what is true. Great fiction writers have 

exploited that human tendency for centuries. One of the greatest novels of the twentieth century, 

F. Scott Fitzgerald’s The Great Gatsby, came not from the mouth of that famous, troubled 

millionaire, but from the narrator, Midwestern outsider Nick Carraway, who describes himself as 

“one of the few honest people that I have ever known.” 

 In the final line of that novel, Nick Carraway leaves the reader with what many see as a 

message of the hopelessness of escaping one’s history. He says, “So we beat on, boats against 

the current, borne back ceaselessly into the past.” But I also think you can read that as hopeful 

dispatch, certainly as it pertains to the FTC and our protection of consumers in this rapidly 

evolving Internet age. Yes, the explosion of social media, connected devices, mobile apps, data, 

and methods of data analyses have wrought benefits and threats to consumers unimaginable even 

three years ago. But the principles of truth in advertising, consumer control over their data, and 

privacy protection behind which the FTC has always stood can and do still apply. In these times, 

hanging on to what has served us so well in the past is perhaps the best way to ensure we can 

adequately protect consumers in what will certainly continue to be a challenging future. 

 Thank you.