How ‘Patented’ and ‘FDA Approved’ Labels Can Mislead Consumers

If you have ever picked up a bottle of moisturiser marked “patented” or “FDA approved”, it may be worth pausing before you buy it.

In a recent review of hundreds of adverts, I discovered that supplements and beauty products frequently deploy these terms in misleading ways to imply that they are safe or effective.

As a law professor, I believe this may confuse consumers and could even put them at risk. A patent simply gives its holder the right to prevent others from making, using, selling or importing an invention. It does not show that the invention works, nor does it guarantee that it will not blow up in your face.

“FDA approved”, by contrast, indicates that a product’s benefits have been judged to outweigh its risks for one particular use – not that the product is generally high-quality or low-risk.

Misled by the label

To find out whether businesses take advantage of these misunderstandings, I examined hundreds of print, television and social-media adverts referring to patents or FDA approval. The results showed that advertisers use these labels in ways that can be confusing.

For instance, I came across an advert for a probiotic supplement declaring, “The proof is in the patent”; an advert for an earwax-removal product claiming that its “patented formula is safe, effective, and clinically proven”; and an advert for a headache treatment that made “FDA approved” a prominent bold visual feature.

The troubling point is that, across a wide range of products, these descriptions were most common in adverts for items that people consume or apply to their skin, including supplements, insecticides, toothpaste and lotions.

This is unlikely to be accidental. Such products are not subject to stringent regulation, while consumers still want reassurance that they are safe. Advertisers appear likely to invoke government authority in order to give people exactly that impression.

Consumer and innovation risks

One risk is straightforward: adverts making imprecise references to government bodies may lead consumers to believe that products are safer or more effective than they really are. There is, in fact, some evidence that this is already occurring.

A further concern is that these claims may create harmful incentives for companies. Rather than pursuing genuine innovation, businesses may choose to obtain questionable patents or regulatory endorsements simply to remain competitive in the advertising contest.

Such conduct could skew competition, place government agencies under pressure from frivolous patent applications, and discourage newcomers from entering markets where they cannot use comparable advertising methods.

Unanswered questions about patents and FDA approval

Although my study has highlighted how commonly these misleading advertising approaches appear, significant questions remain. What, precisely, makes consumers react so positively to labels such as “patented” and “FDA approved”? And which people are most likely to be misled by these techniques?

My next step will be to carry out wide-ranging consumer surveys and detailed interviews to examine the emotional appeal of these labels. I also hope to work with researchers in psychology and media studies.

Research of this kind could give policymakers the strong evidence required to reform the law.

What form could those reforms take? For example, the law could make it simpler for consumer groups to bring cases about misleading adverts in federal courts. The Federal Trade Commission could also require companies to do more to demonstrate that their advertising is truthful.

These reforms could have a substantial effect by helping to ensure that businesses persuade shoppers without misleading them.

At a time when advertising is pervasive and Americans are losing faith in institutions – and in one another – truthful product claims matter greatly.

Michael Mattioli, Professor of Law and Louis F. Niezer Faculty Fellow, Indiana University

This article is republished from The Conversation under a Creative Commons licence. Read the original article.