False Advertising Toolkit: Substantiation Files, Surveys, and Injunction Briefing

Summary. The working documents of an advertising dispute, annotated.

Template 1 — Claim intake form

Owner: marketing completes it; legal does not review without it.

CLAIM INTAKE                              DATE: ______  REQ BY: ______

1. THE CLAIM, EXACTLY AS IT WILL APPEAR
   [Verbatim. Include surrounding copy and any footnote or disclosure.]

2. WHERE IT WILL APPEAR
   [ ] Website  [ ] Packaging  [ ] Broadcast  [ ] Print  [ ] Retail display
   [ ] Paid social  [ ] Influencer  [ ] Sales deck  [ ] Email  [ ] Other

3. WHAT DO WE MEAN BY IT?
   [Plain-language explanation of the asserted proposition.]

4. WHAT WOULD A CONSUMER TAKE AWAY?
   [Including any implied message beyond the literal words.]

5. WHAT EVIDENCE SUPPORTS IT?
   Testing:               Study/report reference:
   Protocol:              Date conducted:
   Conducted by:          Qualifications:

6. IF COMPARATIVE:
   Competitor product named or implied:
   Model number and purchase date of the unit tested:
   Was it tested side by side under the same protocol?   Y / N
   Is the competitor product currently marketed?         Y / N

7. IF AN ESTABLISHMENT CLAIM ("proven," "tested," "studies show"):
   How many studies?      Do they test THIS product?  Y / N
   Do they test the claim as worded?                  Y / N

8. CAMPAIGN DURATION AND SPEND

9. REQUESTED APPROVAL DATE

What it prevents: the most common failure in advertising compliance, which is a claim reviewed as words rather than as a proposition with evidence behind it.

Template 2 — Claim review matrix

Template 3 — Substantiation file structure

Assembled before the claim runs. Dated. This is the exhibit the case turns on.

SUBSTANTIATION FILE — [CLAIM]                  ASSEMBLED: [DATE]

1.  THE CLAIM AS APPROVED
    Verbatim, with surrounding copy and footnotes, and a screenshot
    or comp of the final creative.

2.  WHAT THE CLAIM ASSERTS
    Plain-language statement of the proposition, including implied
    messages identified in review.

3.  THE EVIDENCE
    3.1 Testing protocol (final and all drafts)
    3.2 Raw data
    3.3 Analysis and report
    3.4 Testers: names, qualifications, independence
    3.5 Equipment, calibration, conditions
    3.6 Samples: source, lot, date, condition
    3.7 For comparative claims: competitor product model numbers,
        purchase receipts, dates, and confirmation of current marketing

4.  TESTS AND ANALYSES THAT DID NOT SUPPORT THE CLAIM
    [Retain them. They will be produced. Absence looks like curation.]

5.  CONSUMER PERCEPTION RESEARCH (if any)

6.  REVIEW AND APPROVAL
    Reviewers, dates, and any conditions imposed

7.  CHANNEL CLEARANCE
    Network standards submissions and responses; platform approvals

8.  RE-VERIFICATION SCHEDULE
    Next review date: ______   Owner: ______

Rule: the claim and the test must match. A claim about ordinary use may not rest on laboratory-optimal conditions unless the advertisement says so.

Template 4 — Evidence capture log (challenger)

Required for each web capture: full page, URL visible, date visible, saved HTML, printed PDF. Required for packaging: an actual purchased unit, sealed, with the receipt. Required for broadcast: the recording plus air date, network, and daypart.

Template 5 — Claim characterization worksheet

Decision rule at the bottom of the sheet:

If any challenged claim is literally false, lead with it: deception is presumed and no survey is required. If the theory is implied falsity only, retain a survey expert before filing and budget accordingly. If a claim is puffery, drop it. Advancing it damages credibility on the claims that matter.

Template 6 — Demand letter

Dear [ ]:

We represent [client]. This letter concerns claims in [company]'s current advertising for [product].

The claims. [Quote each claim verbatim, identify where and when it appeared, and attach captures as exhibits.]

Why they are unsupported. Claim 1 — "[quote]." This claim states that [proposition]. Independent testing conducted by [laboratory] on [date] under [protocol] measured [result]. [Exhibit B.] The claim is therefore inaccurate as stated. Claim 2 — "[quote]." This is an establishment claim asserting that the proposition has been tested. We ask that you identify the testing on which it relies, including the protocol, the products tested, and the dates.

What we ask. That you (1) discontinue the claims identified above across all channels; (2) identify the substantiation relied on for each; and (3) respond by [date].

Preservation. You are on notice to preserve all documents relating to these claims, including testing protocols, raw data, analyses that did not support the claims, consumer research, and internal approvals.

We would prefer to resolve this without proceedings and will respond promptly to a substantive reply.

Discipline: quote exactly, attach the evidence, ask for the substantiation, and do not characterize a close call as a clear violation. This letter becomes an exhibit if the recipient files for declaratory relief.

Template 7 — Self-regulatory challenge outline

CHALLENGE TO ADVERTISING BY [ADVERTISER]

I.    THE CHALLENGER AND ITS INTEREST
II.   THE ADVERTISING AT ISSUE
      Each claim quoted verbatim; media; dates; exhibits
III.  THE CLAIMS CONVEYED
      A. Express claims
      B. Reasonably implied claims
IV.   THE ADVERTISER LACKS ADEQUATE SUBSTANTIATION
      For each claim:
      A. What level of support the claim requires
      B. Why the apparent support is inadequate
         (protocol mismatch, wrong product, wrong conditions,
          insufficient sample, no control, stale comparison)
V.    CHALLENGER'S EVIDENCE
      Testing, expert declarations, consumer research
VI.   RELIEF REQUESTED
      Discontinuation or modification of each claim
EXHIBITS

Strategic notes. Focus on three claims, not fourteen. Frame everything as substantiation adequacy rather than "our product is better." Audit your own advertising first — counter-challenges are routine. And remember that filing suit generally closes the self-regulatory case, so choose one route.

Template 8 — Preliminary injunction brief skeleton

I.    INTRODUCTION
      What the claim says, why it is false, what it is costing us,
      and what order we want. One page.

II.   FACTS
      A. The parties and the market
      B. The challenged advertising (with exhibits)
      C. The truth (testing, protocol, results)
      D. The harm to plaintiff

III.  LEGAL STANDARD
      Rule 65; Winter factors; 15 U.S.C. 1125(a)(1)(B) elements;
      statutory presumption of irreparable harm

IV.   PLAINTIFF IS LIKELY TO SUCCEED
      A. The statements are literally false
         1. [Claim] is false as a matter of arithmetic/fact
         2. [Claim] is an establishment claim and the cited
            evidence does not establish it
      B. Deception is presumed from literal falsity
      C. The claims are material
      D. Interstate commerce
      E. Plaintiff is injured and within the zone of interests (Lexmark)

V.    PLAINTIFF WILL SUFFER IRREPARABLE HARM
      Presumption; plus concrete evidence of lost accounts,
      price pressure, and goodwill harm

VI.   THE BALANCE OF EQUITIES FAVORS RELIEF
      Defendant has no legitimate interest in false claims;
      modification is available at low cost

VII.  THE PUBLIC INTEREST FAVORS RELIEF

VIII. THE REQUESTED ORDER IS APPROPRIATELY NARROW
      Specific claims, specific media; proposed order attached

IX.   BOND
      Proposed amount and basis

Template 9 — Survey specification

Give this to the expert as a scope document; do not draft the instrument yourself.

Template 10 — Survey attack outline

MOTION TO EXCLUDE THE SURVEY OF [EXPERT] UNDER FRE 702

I.   THE UNIVERSE DOES NOT MATCH THE RELEVANT PURCHASERS
     [Over-inclusive: includes non-purchasers / Under-inclusive:
      excludes the targeted audience]
II.  THE STIMULUS IS NOT THE ADVERTISEMENT
     [Isolated claim; altered format; description rather than the ad]
III. THERE IS NO ADEQUATE CONTROL
     [None at all / control removes too much / control removes too
      little — net deception cannot be calculated]
IV.  THE QUESTIONS ARE LEADING AND ORDER EFFECTS ARE UNCONTROLLED
V.   THE CODING OF OPEN-ENDS DETERMINED THE RESULT
VI.  THE NET RESULT DOES NOT SHOW A SUBSTANTIAL SEGMENT DECEIVED
VII. RELIEF: EXCLUSION [or limitation]

Framing note: courts distinguish flaws going to weight from flaws going to admissibility. Lead with universe and control, which are the ones most often held to be methodological.

Template 11 — Substantiation discovery requests

1. All documents constituting, referring to, or relied upon as substantiation for each Challenged Claim.
2. All protocols for any testing relating to each Challenged Claim, including all drafts.
3. All raw data generated by such testing.
4. Documents sufficient to identify each person who conducted, supervised, or analyzed such testing, and their qualifications.
5. Documents sufficient to identify each product tested, including manufacturer, model number, date and place of purchase, and condition.
6. All tests, studies, analyses, or evaluations relating to the subject matter of the Challenged Claims that did not support them.
7. All consumer research relating to the Challenged Claims or the campaign in which they appeared.
8. All marketing plans, media plans, and documents sufficient to show expenditures on the campaign.
9. All communications with any testing laboratory, research vendor, or consultant relating to the Challenged Claims.
10. All documents relating to internal review or approval of the Challenged Claims.
11. All submissions to and communications with any network standards department, platform, retailer, or certification body relating to the Challenged Claims.
12. Documents sufficient to show unit sales and revenue for the Product by month for [period].
13. All prior versions of the Challenged Claims and all documents relating to any change.

Request 6 is the one that wins cases.

Template 12 — Expert declaration outline (falsity)

I.    QUALIFICATIONS
II.   ASSIGNMENT AND MATERIALS CONSIDERED
III.  THE TECHNOLOGY / SCIENCE AT ISSUE
IV.   WHAT THE CHALLENGED CLAIM ASSERTS
V.    WHAT A COMPETENT TEST OF THAT ASSERTION REQUIRES
      Protocol; conditions; controls; sample selection; replication
VI.   THE TESTING RELIED ON BY THE ADVERTISER
      A. What it measured
      B. Why it does not establish the claim as worded
         (conditions; product tested; sample; controls; analysis)
VII.  MY OWN TESTING
      Protocol, conditions, results, and why they are reliable
VIII. CONCLUSIONS
IX.   DECLARATION UNDER 28 U.S.C. § 1746

Template 13 — Settlement terms

1. Discontinued claims. Defendant will not state or imply, in any advertising or promotional material, that [specific proposition], unless supported as provided in Paragraph 3.

2. Transition. Defendant will remove the discontinued claims from digital properties within [10] days, cease shipping packaging bearing them within [60] days, and cease all use within [120] days.

3. Substantiation standard for future claims. Any comparative performance claim regarding [category] will be supported, before publication, by side-by-side testing of the parties' then-currently-marketed products, conducted under a protocol that measures the property claimed under the conditions stated in the advertisement.

4. Notice and cure. Before initiating any proceeding regarding a claim covered by this Agreement, the complaining party will give written notice identifying the claim and the basis, and the other party will have [20] days to respond or cure.

5. Corrective communication. Defendant will [publish a notice / notify trade customers] in the form attached.

6. Breach. [Liquidated damages of $___ per violation] or [entry of the stipulated injunction attached as Exhibit A].

7. Releases. Mutual, limited to claims arising from the advertising identified in Exhibit B.

The clause that matters is Paragraph 3. Banning specific words stops one campaign; a testing standard prevents the next one.

Related documents

• False Advertising Under the Lanham Act: Literal Falsity, Materiality, and Competitor Standing
• Bringing or Defending a False Advertising Claim: A Practical Guide
• False Advertising Claim Checklist: A Practical Checklist
• Advertising and Consumer Protection Compliance Toolkit
• Consumer Marketing Compliance Toolkit: TCPA, CAN-SPAM, Auto-Renewal, and Endorsements
• Motion Practice Toolkit: Dispositive, Discovery, and In Limine Motions
• Expert Witness Toolkit