Burden of Proof in Advertising

Also known as: Claim Substantiation, Supporting Evidence, Advertising Substantiation, Reklamda İspat Yükü

In short

The advertiser's obligation to prove the claims in its advertising with current, objective documents appropriate to the nature of the claim; documents must be ready before the ad runs.

Under Law No. 6502, advertisers must prove the claims in their commercial advertising. The burden of proof lies with the advertiser; the Advertising Board does not have to prove the claim is false. This rule is perhaps the most important practical consequence of advertising law: a claim without documents may lead to a fine even if it is true.

What Documents?

Substantiation is made with current, objective documents appropriate to the nature of the claim:

Test and research results from independent organisations,
Accredited laboratory reports,
Scientific studies and clinical research,
Market research and sales data from independent organisations,
Official statistics and approval documents.

Scope and Currency of Documents

The document must have the same scope as the claim:

A test result for one product group does not support a claim about the whole range.
An old study does not support a current superiority claim.
A regional survey does not support a national first-place claim.
A result under laboratory conditions does not always support a claim about real-world use.

Timing

Documents must be ready before the ad runs. Research commissioned after an Advertising Board investigation begins carries limited weight in the defence. A step for filing supporting documents for each claim should therefore be added to the ad approval process.

In the Defence

In Advertising Board investigations, what is decisive is documentary proof of the claims; defences relying only on general explanations usually result in sanctions. The burden of proof rule also plays an important role in disputes between competitors, Advertising Self-Regulatory Board proceedings and unfair competition actions.

Frequently Asked Questions

Can we commission research after an investigation starts?

You can, but research commissioned after an investigation begins carries limited weight in the defence. Documents supporting the claim are expected to exist at the time the ad was published.

Are our own laboratory test results enough?

On their own they are often not considered sufficient. Reports from independent organisations or accredited laboratories are much stronger evidence; independent documents are expected especially for claims comparing with competitors.

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