Reviewing an Ad Campaign and Answering a Deceptive Advertising Complaint: A Practical Checklist

Business > Advertising and Marketing Law | Published 26 November 2024 - Updated 6 July 2025 | UpLaw - uplaw.us

How to Use This Checklist

Parts 1 through 7 run before publication. Parts 8 through 12 run after a complaint arrives. Doctrine behind any item is in the comprehensive guide; the plain-language orientation is how advertising law actually polices a claim.

⚠ The controlling question at every step. Not "is this sentence true?" but "what does this asset communicate to a reasonable consumer, and can we prove that, today, with evidence we already have?"

Part 1 — Break the Asset Into Claims

☐ List every express claim as a standalone sentence.

☐ List every implied claim. Read the asset the way a consumer would, once, quickly. Write down what you now believe about the product. Everything on that list is a claim.

☐ Include the images. Before-and-after photos, demonstrations, charts, and lifestyle imagery all communicate claims requiring the same substantiation as text.

☐ Include audio and on-screen text in video, and the sequencing of both.

☐ Include the interface. Timers, scarcity indicators, pre-selected options, and cancellation paths are practices subject to 15 U.S.C. § 45.

☐ Mark each claim as objective or puffery. If it is measurable, comparative, numeric, or scientific-sounding, it is objective. When in doubt, treat it as objective.

☐ Flag establishment claims — anything saying or implying "proven," "tested," "studies show," "rated," or "recommended."

☐ Flag health, safety, efficacy, earnings, environmental, and origin claims for escalated review.

Part 2 — Test the Substantiation

☐ For each objective claim, name the evidence and its date. If nobody can name it in one sentence, the claim is unsupported.

☐ Confirm the evidence predates the claim. Substantiation developed after publication does not cure the violation.

☐ Confirm the evidence is about the product you sell — this formulation, this version, this configuration — not an ingredient, a prototype, or a predecessor.

☐ Confirm the study population matches the depicted audience.

☐ Confirm the outcome measured is the outcome claimed. Surrogate endpoints do not support consumer-facing benefit claims.

☐ Confirm the numbers are typical results, not best cases.

☐ For establishment claims, confirm the cited work actually establishes the proposition. If it does not, the claim is literally false in a competitor suit under 15 U.S.C. § 1125 even if the underlying proposition happens to be true.

☐ For health, safety, and efficacy claims, confirm competent and reliable scientific evidence: controlled, adequately powered, blinded where feasible, conducted and evaluated by qualified persons using accepted methods.

☐ For survey-based claims, confirm the universe, sample, instrument, and date, and that they will be disclosed.

☐ For comparative claims, confirm the competitor product tested is the current version, purchased and documented, with a written protocol.

☐ Write the substantiation memo — claim wording, messages conveyed, evidence relied on, why it supports each message, limitations, required disclosures, approver, review date.

☐ Set a review date. Comparative and superlative claims expire silently.

Part 3 — Test the Disclosures

☐ Identify every claim that requires a qualification to avoid deception.

☐ Place the disclosure adjacent to the claim — same screen, same frame, above the fold.

☐ Reject hyperlinked disclosure of material terms. Price, conversion, and recurrence belong on the page.

☐ Match the medium. Audio claims need audio disclosures; video disclosures must be on screen long enough to read at ordinary viewing speed.

☐ Test on a phone, in the app or browser the audience actually uses, at default text size.

☐ Confirm the disclosure is not contradicted by the claim. If the qualification negates the claim, revise the claim.

☐ Confirm contrast, size, and duration would let an ordinary viewer read it without effort.

☐ Confirm nothing distracts — no motion, no competing text, no simultaneous audio.

☐ Repeat disclosures wherever the claim repeats, including in each post of a campaign series.

☐ Confirm the disclosure appears before the decision point, not on a confirmation screen.

Part 4 — Endorsements, Influencers, and Reviews

☐ Identify every material connection between the brand and anyone speaking about it: payment, free product, discounts, affiliate commissions, contest entries, employment, equity, family.

☐ Require disclosure in the post itself, at the beginning, visible without expanding, in the post's language, and in video both superimposed and spoken. See 16 C.F.R. Part 255.

☐ Confirm the endorser has actually used the product.

☐ Supply approved claim language and prohibit any claim not on the approved list.

☐ Confirm results claims are typical, or disclose the generally expected performance. "Results not typical" alone is insufficient.

☐ Confirm expert endorsers hold the claimed expertise and performed an evaluation as extensive as an expert in the field would conduct.

☐ Audit review practices against 16 C.F.R. Part 465: no fabricated reviews, no undisclosed insider reviews, no purchased sentiment, no suppression of negatives, no aggregate ratings that omit filtered reviews.

☐ Publish an employee social media policy requiring disclosure of the employment relationship.

☐ Monitor after publication. Contractual requirements without monitoring are not reasonable steps.

☐ Keep evidence that disclosures appeared — dated screenshots of the live post.

Part 5 — Pricing, Offers, and Subscriptions

☐ Confirm any "was" or "regular" price was genuinely charged openly and actively for a reasonably substantial period, per 16 C.F.R. Part 233.

☐ Confirm "compare at" and "MSRP" figures have a real referent.

☐ Confirm "free" means free — no offsetting price increase, no quality reduction, all conditions disclosed with the offer.

☐ Confirm the advertised price includes all mandatory fees, or that total price is disclosed with equal prominence up front.

☐ For "up to" claims, confirm a meaningful number of items achieve the maximum and consider disclosing the typical figure.

☐ For negative option offers, confirm disclosure before billing information is collected: that charges begin, when, how much, how often, and how to cancel.

☐ Confirm express informed consent to the recurring charge is obtained separately from consent to the transaction.

☐ Confirm cancellation is available in the same medium as enrollment and in no more steps. Consumer remedies appear in consumer contracts and cancellation rights.

☐ Confirm no pre-checked add-ons or pre-selected consents.

☐ Confirm scarcity and urgency indicators reflect reality — real inventory, real deadlines, timers that do not reset.

Part 6 — Origin, Environmental, and Regulated Claims

☐ For "Made in USA," run the bill of materials. Unqualified claims require all or virtually all domestic content and processing; otherwise qualify the claim precisely.

☐ For environmental claims, replace general benefit language with a specific attribute and confirm evidence for it under 16 C.F.R. Part 260.

☐ Confirm "recyclable" claims are supported by facility availability to a substantial majority of consumers where the item is sold, or qualify them.

☐ Confirm "compostable," "degradable," "non-toxic," and offset claims meet their specific evidentiary expectations.

☐ For health-adjacent products, confirm no disease claim is conveyed by copy or imagery; see claims that turn a product into a drug.

☐ For email campaigns, confirm compliance with 15 U.S.C. § 7704: accurate headers, non-deceptive subject lines, advertisement identification, physical address, working opt-out, prompt honoring. Detail is in CAN-SPAM compliance.

☐ For outbound calling, confirm compliance with 16 C.F.R. Part 310 and the consent rules described in robocall and telemarketing law.

☐ For data-driven targeting, confirm privacy disclosures and opt-out mechanics, per what the state privacy laws actually require.

☐ For any security or privacy promise, treat it as an advertising claim enforceable under 15 U.S.C. § 45.

Part 7 — Approve, Publish, Archive

☐ Record the approval in the claim register: exact wording, required disclosures, evidence and its date, approver, approved channels, review date.

☐ Confirm the asset that will actually run is the asset that was approved. Late creative changes are the most common source of unapproved claims.

☐ Confirm platform policies are satisfied, separately from legal review. Platform enforcement is faster than any regulator and largely immune to legal argument.

☐ Archive the asset as it ran — full-height dated screenshots, placement, and flight dates.

☐ Archive the substantiation with the memo, protocols, raw data, and expert qualifications.

☐ Diary the review date for comparative, superlative, and exclusivity claims.

☐ Preserve competitor samples and purchase records used in comparative testing.

☐ Confirm agency and affiliate contracts require approved-claim-only usage, monitoring rights, and takedown obligations; drafting mechanics are in contracts.

Part 8 — A Competitor Demand Letter Arrives

☐ Issue a litigation hold the same day. Creative files, testing data, agency communications, and analytics all become relevant; see issuing a litigation hold and preserving ESI.

☐ Identify precisely what is challenged: literal falsity, misleading implication, or an establishment claim unsupported by the cited testing.

☐ Pull the claim register entry and the substantiation memo. If they exist, the response writes itself. If they do not, the timeline just became the problem.

☐ Assess preliminary injunction exposure realistically. The threat of a campaign being pulled mid-flight drives most of these negotiations, not the ultimate merits.

☐ Evaluate whether the claim can be modified without losing commercial value. Most disputes end with revised copy.

☐ Consider the self-regulatory forum. A challenge before the National Advertising Division is faster and cheaper than litigation, with no damages exposure, but decisions are public.

☐ Check your own exposure to a counterclaim. Competitors who send demand letters often have vulnerable claims of their own.

☐ Confirm insurance notice obligations. Advertising injury coverage is narrow, and late notice forfeits what coverage exists.

Part 9 — A Regulator Contacts You

☐ Identify the instrument: an informal inquiry, a warning letter, a civil investigative demand, or a state UDAP investigative subpoena.

☐ Preserve immediately, including complaint logs, refund and chargeback data, and customer service transcripts. These are read first and are frequently the most damaging documents.

☐ Answer with evidence, not adjectives. The productive response states the claim, identifies the substantiation, explains why it supports the message conveyed, and describes corrective action taken.

☐ Do not make unilateral changes without documenting them. Voluntary correction helps; undocumented correction looks like concealment.

☐ Negotiate scope early on custodians, date ranges, and search terms.

☐ Model the exposure: injunctive terms, redress under 15 U.S.C. § 57b, penalties under 15 U.S.C. § 54 where applicable, and the long tail of compliance reporting.

☐ Understand what a consent order costs later. Order violations carry per-violation civil penalties, and orders bind named individuals at their next company.

☐ Anticipate follow-on private litigation. A public order is a roadmap for class counsel; see class actions and mass claims.

☐ Coordinate parallel matters. Federal, state, competitor, and class proceedings frequently run at once, and positions taken in one are used in the others. The general discipline is in responding to a subpoena, target letter, or financial investigation.

Part 10 — A Consumer Class Demand Arrives

☐ Check whether the governing state statute requires a pre-suit demand and cure period. That window is a real opportunity and is routinely wasted.

☐ Identify whether the challenged representation was uniform across the proposed class, and across which time period and channels.

☐ Pull refund and complaint data to assess how the plaintiff will characterize consumer confusion.

☐ Evaluate a cure: revised copy, disclosure changes, and refunds to complainants during the notice period.

☐ Assess reliance requirements under the relevant statute; some presume it, some require individualized proof, and that difference often decides certification.

☐ Preserve the archive of assets as they ran. Without it, the plaintiff's characterization of the advertising becomes the record.

Part 11 — A Platform Takedown

☐ Read the specific policy cited, not the general terms.

☐ Appeal with evidence addressing that policy, not with legal argument.

☐ Fix the asset rather than re-uploading it. Repeat violations escalate to account-level suspension.

☐ Preserve the notice and the asset, because platform findings are cited by competitors and regulators.

☐ Review whether the flagged issue exists elsewhere in the campaign, on other platforms, and in affiliate creative.

Part 12 — Post-Incident Repair

☐ Trace the failure to a control, not a person. Was the claim never registered? Was the asset changed after approval? Was the disclosure moved by a designer? Did an affiliate publish unapproved copy?

☐ Close the specific gap, and record what changed.

☐ Re-run the claim register against all live assets, including affiliate and influencer content.

☐ Retrain the team that produced the failure, with the actual asset as the teaching example.

☐ Terminate repeat-violator affiliates and endorsers. Tolerance is itself evidence of inadequate monitoring.

☐ Calendar a follow-up audit in ninety days.

Part 13 — Channel-Specific Pre-Flight Checks

Run the applicable block before the campaign goes live. Each one exists because that channel has produced a distinct pattern of enforcement.

Paid social and display

☐ Confirm the disclosure is visible in the feed preview, not only after tapping into the post. ☐ Confirm any claim in the image is substantiated to the same standard as the caption. ☐ Confirm the landing page repeats and does not contradict the ad's claims. Ad-to-landing-page inconsistency is a standard regulator finding. ☐ Confirm the destination price matches the advertised price, including all mandatory fees. ☐ Confirm targeting parameters do not create a claim of their own — an ad served on the basis of inferred health conditions can imply a treatment claim.

Email

☐ Confirm accurate "from," "reply-to," and routing information, per 15 U.S.C. § 7704. ☐ Confirm the subject line reflects the content of the message. ☐ Confirm identification as an advertisement where required, a valid physical postal address, and a working opt-out honored promptly. ☐ Confirm the definitions and scope in 15 U.S.C. § 7701 have been applied to transactional versus commercial content, since mixed messages are judged by their primary purpose.

Telemarketing and text

☐ Confirm the required disclosures under 16 C.F.R. Part 310 are made before payment information is requested. ☐ Confirm do-not-call list scrubbing, calling-hour restrictions, and prompt honoring of internal opt-outs. ☐ Confirm consent records exist for every number on the list, with the date, source, and exact language consented to. ☐ Confirm any recorded message complies with the separate rules for prerecorded calls.

Retail, packaging, and point of sale

☐ Confirm shelf tags and signage match the register price. ☐ Confirm "was" prices on packaging comply with 16 C.F.R. Part 233. ☐ Confirm origin claims on packaging match the bill of materials. ☐ Confirm any environmental icon or seal is substantiated and, if it is a self-created seal, that it does not imply third-party certification, per 16 C.F.R. Part 260.

Vehicle and high-ticket advertising

☐ For used vehicles, confirm the Buyers Guide requirements of 16 C.F.R. Part 455 are met and that the guide matches the sales contract. ☐ Confirm advertised availability — a price quoted for a vehicle not actually in stock is a bait practice. ☐ Confirm financing and lease disclosures accompany any triggering term.

Part 14 — Quarterly Audit

☐ Re-run the claim register against every live asset, including affiliate creative, influencer posts, retail signage, packaging, and the website.

☐ Verify every comparative and superlative claim against the current competitor products and the current market.

☐ Re-test disclosure placement on current device sizes and current platform layouts, which change without notice.

☐ Sample influencer posts for disclosure presence, placement, and unapproved claims.

☐ Pull refund, complaint, and chargeback data and look for the claims consumers say they relied on.

☐ Review platform policy changes since the last audit.

☐ Confirm archives are complete — assets as they ran, substantiation, approvals, and dates.

☐ Re-check any claim subject to an outstanding consent order or NAD recommendation.

☐ Record the audit, its findings, and the remediation. A documented audit is evidence of good faith; an undocumented one is not evidence of anything.

⭐ The habit that prevents most of this. Register the claim before you run the ad. A single spreadsheet row — wording, evidence, date, approver, review date — converts every future challenge from an investigation into a lookup.

Part 15 — Ten Questions That Catch Most Problems

Run these against any asset in under five minutes. They are ordered by how often each one finds something.

☐ 1. What would a rushed consumer believe after seeing this once? Write it down. That is the claim you must substantiate, whatever the copy says.

☐ 2. Where is the evidence, and what is its date? If nobody can answer in one sentence, stop. The requirement to hold support before publication comes from the deception standard in 15 U.S.C. § 45.

☐ 3. Does the evidence test this product, in this population, for this outcome? Ingredient studies, prototypes, and predecessor formulations do not count.

☐ 4. Is there a number, a comparison, or a scientific word? If yes, puffery is unavailable and the claim needs proof.

☐ 5. Would a competitor read this as literally false? If so, assume a demand letter and a possible injunction under 15 U.S.C. § 1116, with damages and profits available under 15 U.S.C. § 1117.

☐ 6. Where does the disclosure sit on a phone? Look at it on a phone. Most disclosure failures are visible in ten seconds on the actual device.

☐ 7. Does anyone speaking about the product have a connection a consumer would not expect? If yes, disclose it in the post, at the top, per 16 C.F.R. Part 255.

☐ 8. Was the "before" price ever really the price? If not, remove it; 16 C.F.R. Part 233 governs.

☐ 9. Can the customer cancel as easily as they signed up, in the same place? If not, fix the flow, not the copy.

☐ 10. Will this claim still be true in six months? If it depends on a competitor's product, a market position, or an inventory level, set a review date now.

Part 16 — Who Signs Off, and On What

Ambiguous ownership is the second most common cause of advertising failures, behind missing substantiation. Assign each of these in writing.

☐ Claim owner (marketing). Responsible for stating, in plain sentences, what the campaign asserts — before creative is produced. No reviewer should be reverse-engineering claims from a finished asset.

☐ Evidence owner (product, science, or engineering). Responsible for producing and dating the substantiation, and for saying plainly when it does not support the claim as written. This person must be empowered to say no without escalation.

☐ Reviewer (trained non-lawyer for medium risk, counsel for high risk). Responsible for the substantiation memo, the disclosure specification, and the register entry.

☐ Disclosure implementer (design). Responsible for placing the disclosure exactly as specified and for flagging any layout change that moves or shrinks it. Most disclosure failures happen after approval, in production.

☐ Channel owner (media, social, affiliate). Responsible for confirming the asset that runs is the asset that was approved, and for platform policy compliance.

☐ Archivist (marketing operations). Responsible for dated, full-height captures of every asset as it ran, with placements and flight dates.

☐ Escalation owner (legal). Named individual who receives any demand letter, warning letter, platform notice, or consumer complaint alleging deception, within one business day of receipt.

☐ Register keeper. Responsible for review dates and for re-verifying comparative, superlative, and exclusivity claims on schedule.

Write these seven roles on one page with names next to them. A campaign that cannot fill every line is not ready to run.

---

Related Documents

• Everything We Say Is True: How Advertising Law Actually Polices a Claim
• Advertising and Marketing Law: A Comprehensive Guide to Substantiation, Endorsements, and Disclosures
• The Advertising Review and Endorsement Compliance Toolkit
• Puffery, Substantiation, and the Reasonable Consumer: Where Ad Claims Actually Fail
• Spotting an Antitrust Problem and Responding to an Investigation: A Practical Checklist
• Cancelling a Contract, Membership, or Timeshare: A Practical Checklist
• Building a Privacy Compliance Program: A Practical Checklist