Marketing Beauty and Wellness in an Era of Heightened Scrutiny

In this Q&A, David Mallen, chair of the firm’s Retail & Consumer Brands practice and co-chair of the firm’s Advertising Disputes practice, discusses the advertising, marketing and compliance issues shaping the beauty and wellness sector. From wellness devices and “clean” product claims to influencer marketing and FTC scrutiny, brands face increasing pressure to ensure that advertising claims are both compelling and supported by reliable evidence. David shares practical guidance on navigating regulatory risk while maintaining consumer trust and supporting long-term brand growth.

Tell us about your practice and the types of matters you generally handle.

I solve problems for brands. My practice centers on helping marketers in a variety of industries address advertising, regulatory and compliance challenges. I advise clients on claim substantiation, influencer marketing, privacy issues, consumer protection law and advertising disputes, and I have extensive experience with matters before the National Advertising Division (NAD), the FTC and state agencies. I also counsel companies on sophisticated product testing, consumer surveys and “green” claims in advertising and marketing.

What key trends are shaping how beauty and wellness products are being marketed and scrutinized?

The trends that we’re seeing are shaped by a confluence of developing technology (including use of AI), the creative use of digital platforms in marketing and an uncertain regulatory environment.

We’ve broadly seen three key areas of risk, which are:

1. The rapid growth of wellness devices, including wearables and personal health apps. Software solutions are marketed as tools for managing the wellness experience and promising better fitness, sleep and overall wellness. In addition to the promise of benefits that brush up against FDA regulations, the personal nature of these devices can raise privacy and data protection concerns.
2. Marketing “clean,” “green” and “sustainable.” The push toward cleaner and safer ingredients (whether in beauty products or functional foods) has led to attractive-sounding claims such as “plant-based,” “hypoallergenic,” “100% natural” and “toxic free.” These claims are sometimes vague or exaggerated and may lack an appropriate level of scientific support, particularly where there is an implied health benefit. These kinds of claims have generated scrutiny from enforcement agencies, class action plaintiffs’ lawyers and self-regulatory organizations such as the NAD of the BBBNP.
3. Loose claim substantiation. The holistic approach marketers take to wellness means that not all advertised benefits are “health” claims within the meaning of FDA oversight. However, claims that are “health related” (better sleep, anti-aging or longevity, smoother skin, a calmer experience, improved focus, etc.) nevertheless require competent and reliable evidentiary support.

When brands make health-related claims like “clinically proven” or “supports immunity,” where do they face the greatest legal risk and how can they approach substantiation more thoughtfully from the outset?

The greatest risks come from claims with insufficient substantiation and those that may result in consumer harm (including financial loss). In addition to facing consumer class action lawsuits, companies making health-related claims are subject to FTC enforcement actions, state enforcement of consumer protection law and competitor challenges before the NAD.

For example, the NAD recently ruled against the advertiser of a GLP-1 product making claims of weight loss. Both the FTC and the NAD look to the FTC’s Competent and Reliable Scientific Evidence standard for health-related claims. The standard applies to structure-function claims (e.g., “supports immunity”) but also to more generalized claims of wellness, including those relating to energy, mood or improved mental state. An important consideration is that a single clinical study showing a positive result may not be sufficient to establish that a claim is “clinically proven.” Companies looking to reduce risk should 1) consider the full body of evidence with respect to a promised benefit, and 2) consider not just the express claim but the possibility that there is a promise of a health benefit that outstrips the evidentiary support.

How are influencer marketing and the broader creator economy changing expectations for beauty and wellness brands?

The rapid growth of the creator economy means that companies have less control over the marketing messages reaching consumers. As a result, even if a marketer has evidentiary support for a particular claim, once the content becomes more organic and tied to an influencer’s personal experience, the greater the risk that the message becomes distorted and the promise of a health benefit exaggerated. Marketers need to be mindful of the FTC rules concerning the use of endorsements and testimonials in advertising and build safeguards into their contracts with influencers.

For companies trying to move quickly in a competitive market, how can legal and marketing teams work together to balance speed with compliance?

The most successful companies develop an internal process where collaboration between legal counsel, marketing and scientific R&D takes place early and in a routine and systematic manner. Understand the benefits your product can offer and the strength and weakness of evidentiary support for those benefits. A commitment to sound scientific evidence will enable companies to move with confidence and avoid pain later. When a particular marketing claim is approved by the legal or regulatory team, that is only one step in a dynamic process. The collaboration between legal and marketing must also consider implied messages and how the claim is likely to appear and evolve in various social media platforms.

Another challenge arises when dealing with technology that evolves faster than does the process for developing consensus industry standards. Moving quickly in developing appropriate claim substantiation requires creativity but also an understanding of both the science and the legal and regulatory landscape.

Looking ahead, what should brands be doing now to stay ahead of enforcement trends and position themselves for long-term success in this evolving space?

We believe that the best and most forward-thinking approach considers not just the legal and regulatory risk but also the overall brand risk, and it is committed to creative strategies for strengthening brands. This requires a collaborative approach to understand scientific evidence and evolving technology as it applies to both product development and the evolution of marketing platforms. Rather than arriving at marketing claims that are defensive and reactive to legal and regulatory threats, the goal should be a team marketing strategy that results in claims that are both confident and powerful but also supportable and compliant.