Once you talk/write/post on social media about your business goals – whether they be product qualities, ESG statements, or DEI initiatives – you may need to show your work

The end of a year and the beginning of a new one can be a time of reflection and a time for thinking about the future and what it may hold. It is a time for making lists of resolutions, goals, and aspirations. Things we hope we'll do (or do better) in the new year. We recognize that some of those goals and aspirations may not be realized. Some we put down to paper with measurable steps and milestones. Some of us have accountability buddies to help us stick to our plans and achieve our goals. Luckily, the consequences of not working toward or achieving our goals are mostly manageable and don't result in litigation or enforcement actions.

Companies also have goals and aspirations. Sometimes they talk publicly about them. Sometimes they can talk about them and they remain just aspirations, which may or may not be achieved. But sometimes companies talk about their goals and aspirations in ways that that communicate they are already taking active steps to achieve those goals. By doing so, we the public become, in effect, the accountability buddies for those companies in the goals they have articulated. Unlike for individuals, the consequences for a company of getting it wrong – e.g., overstating progress or the steps taken not actually supporting the claims being made – can have significant financial, reputational, and legal risks.

Advertisers (the companies) are responsible for ensuring that the claims they make are truthful, not misleading, and substantiated. Whether something meets the definition of a claim requires evaluating the entire context of the advertisement and all reasonable interpretations one could take away from the material.

Guidance From the National Advertising Division

The National Advertising Division (NAD), a BBB National Program and the advertising industry's self-regulatory body, has many times now addressed challenges to aspirational claims made by various advertisers. The NAD's recent analyses and comments on challenges to aspirational claims made by JBS (affirmed on appeal), the American Beverage Association (affirmed on appeal), and Chipotle provide guidance for advertisers looking to talk about their goals and aspirations.

• Are your claims vague or specific or a combination of both?
• Are there additional reasonable interpretation(s) of the claims beyond the aspirational tone and consumer takeaway you intend? (Practical note: Try listing your intended claims. Then step back, review the claim and the context, and determine if you are perhaps conveying more than you intend.)
• Are the aspirational claims tied to measurable outcomes (e.g., deadlines, milestones)?
• Do you have an actual plan in place to achieve those aspirational goals?
• Have you taken any steps toward achieving these aspirational goals? What are those steps?
• Is reaching your aspirational goals realistic? What obstacles are in the way? How likely is it that you will overcome those?
• What types of monitoring policies do you have in place to assess progress toward the goal(s)?

Next Steps

Instead of brainstorming a list of aspirational claims and finding the substantiation after, consider carefully reviewing the backup support you have and carefully sculpt claims that are supported by that evidence. Remember that the Federal Trade Commission (FTC) Green Guides (currently under review for updating by the FTC) provide guidance for making environmental claims, including unqualified general environmental claims (which are discouraged). But that is not the only context for aspirational claims. They can apply to any environmental, social, or governance mission your company espouses, such as those directed to diversity initiatives or future product enhancements.

If you already have these types of claims on your website or advertising (as nearly all companies do these days), don't panic. Make it a priority to review your website, social media, and other marketing items for aspirational claims. Note each claim your company makes and for each one, ask the above list of questions. You will likely know if a claim is outdated or not achievable. If you aren't sure, revise, remove, and/or seek competent legal advice. No company wants to hear—whether from the NAD, FTC, competitors or the class action bar—that their feel-good claims leave an actionable bad taste for consumers.

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