Legal Review: Bad Diet Ads - The Fat That the FTC Wants Media to Trim1 Jan, 2014 By: Jeffrey D. Knowles, Venable LLP’s Advertising, Maura A Marcheski, Venable LLP, Randal M. Shaheen Response
It should come as no surprise to marketers that the Federal Trade Commission (FTC) has a soft spot for advertising associated with diet, weight-loss and body-shaping claims. During the past decade, the Commission has pursued literally dozens of enforcement actions against marketers making such claims and has gradually upped the substantiation requirements for those claims.
On Jan. 7, the FTC announced on a new initiative, dubbed “Operation Failed Resolution,” to combat allegedly deceptive advertising claims for weight-loss and body-shaping products. The press conference to announce the program highlighted several relevant enforcement actions and the publication of information to educate consumers.
Jessica Rich, director of the FTC’s Bureau of Consumer Protection, noted that many of the ads implicated in the recent enforcement actions had run on “trusted” media outlets, and she announced that the Commission had sent letters to 75 print, broadcast and digital media outlets promoting an FTC publication entitled Gut Check: A Reference Guide for Media on Spotting False Weight Loss Claims. Rich promoted the program as a way to help sales staff at media outlets identify facially deceptive advertising for diet, weight-loss and body-shaping products, and she expressed the hope that the media outlets would decline to run such advertising.
While seemingly new, the FTC’s efforts are more of a reminder of what the agency expects from media outlets. The seven weight loss advertising claims featured in the Gut Check document that, according to the FTC, “experts say simply can’t be true,” mirror those contained in its 2003 Red Flag Guides, which were also accompanied by letters to media outlets. Those claims, which the FTC says apply to dietary supplements, over-the-counter drugs and products rubbed into the skin or worn on the body, are that a product:
- Causes weight loss of two pounds or more a week for a month or more without dieting or exercise.
- Causes substantial weight loss no matter what or how much the consumer eats.
- Causes permanent weight loss even after the consumer stops using the product.
- Blocks the absorption of fat or calories to enable consumers to lose substantial weight.
- Safely enables consumers to lose more than three pounds a week for more than four weeks.
- Causes substantial weight loss for all users.
- Causes substantial weight loss by wearing a product on the body or rubbing it into the skin.
The document then provides examples of allegedly false advertising claims that do not explicitly state one of the seven claims, but convey a similar message. It also “refreshes” the Red Flag guides by providing primers on the use of typicality claims, and other disclosures and well as “up-to” claims and use of consumer endorsements and testimonials.
Comments made by FTC staff during the press conference made it clear that although use of the Gut Check guidelines is voluntary, the Commission believes that media outlets are the most effective means of policing advertising. This sentiment will seem very familiar to many companies that provide services to marketers because media ad salespeople are not the first group the FTC has said should shoulder the burden of both servicing and policing their clients. In addition, in response to a question from the press, the FTC said that it has the authority under Section 5 of the FTC Act to hold media outlets responsible for misleading weight loss ads they choose to run. While the Commission has suggested this in the past as well, First Amendment concerns have likely prevented the Commission from making good on this threat.
If it was not clear already, the FTC’s announcement signals that weight-loss claims continue to be high on its list of enforcement priorities. Companies making these claims have been put on notice that federal and state regulators are picking through them with a fine-tooth comb, and it would be exceptionally unwise for marketers to “wing it” when formulating such claims. ■