When shoppers see “Now FDA approved!” on a bottle of Excedrin, does it make them more likely to select that option over a competing product? Will consumers choose a brand of dietary supplement marketed as a “patented blend” over one that doesn’t make patent claims?
In Conjuring the Flag: The Problem of Implied Government Endorsements, Michael Mattioli argues that advertisers use claims about intellectual property and regulatory approvals to mislead consumers about their products’ quality, safety, efficacy, or legitimacy. By reference to or use of the US Patent and Trademark Office or the Food & Drug Administration, advertisers borrow those agencies’ halos to imply that branded products from bugspray to hairspray to nasal spray are superior to competitors’ versions. Mattioli cites survey evidence finding most consumers interpret government stamps of approval like “FDA-approved” and “patented” as endorsements of quality. In Conjuring the Flag, he amasses data on the different ways advertisers reference agency or IP approval to appeal to consumers, highlights why that strategy is misleading, and proposes ways FTC could curb it.
What does it mean when an advertiser claims a product like a can of bugspray is “patented”? Patent lawyers know it only means some aspect of the product or packaging was deemed useful, novel, and non-obvious or some element of its design qualified as original and ornamental. For the bugspray, that might mean an inventor or designer acquired a utility patent that covers the spray mechanism on the dispenser or a design patent for the pattern adorning the can, not that the spray itself is particularly safe, effective, innovative, or non-toxic. Mattioli’s study analyzed hundreds of ads that reference patents, but none of the ads in his data set provided patent numbers or identified what the patent actually covered. Patent-related advertising claims appear most often in ads for products intended to be ingested or applied to the body, such as supplements, toothpastes, and skincare products; consumers may crave reassurance that these types of products have been tested and found safe, so “a significant number of companies are using their patents to cultivate an aura of legitimacy and safety in industries that lack rigorous regulatory oversight.”
Mattioli also reviewed eight hundred ads that tout FDA approval, clearance, or registration—these claims appear most frequently in connection with hair care, cancer treatments, and food and drink containers. But FDA approval means only that the FDA has determined a drug or device’s benefits outweigh its known risks for the intended use, not that the product is safe or effective for other uses or that it lacks side effects or complications. Here, too, advertisers conjure the flag in misleading ways to signal safety or superiority to consumers and sell more products, capitalizing on the likelihood that consumers either don’t know or aren’t thinking deeply about what the claim conveys.
When it comes to trademarks, the misleading advertising mechanism is different. Advertisers sometimes use trademark registration to conjure the flag, as with marks like U.S. HEALTH CLUB for vitamins. But more often advertisers obtain trademark registrations that make their patent- and FDA-related claims look even more official: they register marks like JEANS WITH PATENTED FIT for jeans; PATENTED INGREDIENTS for cosmetics; FDA APPROVED MEDICAL SUPPLIES for devices; and FDA REGISTERED for dietary supplements. More aggressive application of failure to function and deceptiveness doctrines could and probably should be used to screen out marks like these at the USPTO, and the agency could update its manual of examining procedure to include that guidance.
While advertising claims and trademark registrations that reference patents and FDA approvals are sometimes literally false, they are more often merely misleading: “Half-truths and implications are, of course, what conjuring the flag is all about.” To address the problem and better protect consumers, Mattioli proposes FTC launch an initiative focused on monitoring and investigating such ads along with a comprehensive public awareness campaign to teach consumers how to identify and report ad claims that imply government endorsement. Because consumer surveys or expert testimony are typically needed to establish a claim is misleading, he further proposes modifying the legal standard to create a rebuttable presumption that any ad referring to a patent, FDA approval, or other government action in a way that implies approval of a product is potentially misleading, shifting the burden of proof to the advertiser to demonstrate the ad is not misleading.
While materiality is a fact-specific inquiry, it is well within FTC’s power to conduct a broader survey or study to gauge whether ads that proclaim products or services “FDA approved” or “patented” mislead consumers in ways that impact their purchasing decisions. In fact, FTC’s Advertising Division has performed surveys and other research on advertising claims like “organic,” “recycled content,” “results not typical,” and “made in the USA” to undergird its guidance and policy statements on those categories of representations. This intervention is crucial because while it’s possible these representations are misleading and constitute unfair competition, it’s also possible consumers skate right past them or regard them as mere puffery. Mattioli’s intuition that these types of claims are misleading is compelling and likely correct, but further study would give FTC a solid basis to pursue claims that conjure the flag more aggressively and systematically.
