Legal Review: FTC Slims Down Nivea’s Wallet Over ‘My Silhouette’ Claims1 Sep, 2011 By: Jeffrey D. Knowles, Gary D. Hailey Response
The Federal Trade Commission (FTC) was once termed “The National Nanny” by the Washington Post. We never had nannies growing up, but we did have moms. They always told us that if something sounds too good to be true, it probably is.
The FTC agrees with our moms 110 percent. The agency recently issued an order against what it views as the latest in a long line of too-good-to-be-true weight-loss products.
The company that felt the wrath of the FTC this time was the maker of Nivea “My Silhouette” cream with “Bio-Slim Complex,” a combination of ingredients that includes anise and white tea.
The FTC complaint against Nivea cites one TV spot that depicts a woman getting dressed after applying My Silhouette cream to her stomach and thighs. She then goes digging through her closet and emerges with an old pair of jeans that fit perfectly when she puts them on. The voiceover that accompanies this little vignette says that My Silhouette with Bio-Slim Complex “helps redefine the appearance of your silhouette … so you can rediscover your favorite jeans. And how they still get his attention.”
There probably is an implied claim that the product slims down your midsection in that TV spot. But, it is pretty subtle — at least when compared to a lot of the advertising that is out there. There is no way to know this for sure, but we would bet dollars to donuts that the FTC wouldn’t have brought a case against Nivea if this TV spot was the only component of the campaign.
The advertiser was probably tripped up by the sponsored search results it bought from Google. When consumers searched “stomach fat,” they received a sponsored link from Nivea that read, “Want a Toned Stomach? Nivea My Silhouette can redefine the appearance of your curves.” And when they searched “thin waist,” they received a Nivea ad that read: “Thin Waist: Try Nivea My Silhouette body gel cream and redefine your curves!” So the FTC alleged that Nivea had communicated a message to consumers that “regular use of My Silhouette results in significant reductions in body size.”
“Redefine the appearance of your curves” is not exactly “lose 30 pounds in 30 days without diet or exercise,” is it? What really sank Nivea were the search terms the company bought from Google — “thin waist,” for example.
When you pay good money so that consumers who search Google to find information about “thin waist” are directed to your product’s website, it is a difficult to argue that you had no intention of claiming that you can help them get a thin waist.
The FTC’s reasoning wouldn’t apply to all sponsored search results. For example, let’s say that you sell jeans with an elastic waistband. If you purchased “thin waist” searches from Google, it is doubtful the FTC would argue that you are claiming that wearing elastic-waist jeans would result in a thinner waist.
But the agency believed that consumers who saw the My Silhouette ad pop up in their “thin waist” search results were likely to conclude that Nivea was promising that its product would reduce your body size. And that was a claim that the FTC found to be unsubstantiated.
So the makers of Nivea were forced to sign a consent agreement that prohibits them from claiming weight loss, fat loss or a reduction in body size unless they have at least two randomized, double-blind, placebo-controlled human clinical studies that were conducted by independent and qualified researchers.
And even if Nivea has two such studies that support its claims, the FTC will look at those studies in the light of “the entire body of relevant of reliable scientific evidence” — so if other studies go the other way, Nivea still might lose.
Nivea also agreed to pay $900,000 to the FTC. That settlement is much smaller than many others, but that tidy sum — and the conditions that come with Nivea’s consent agreement — will likely be significant enough to get the attention of even the largest marketers. ■
Gary D. Hailey and Jeffrey D. Knowles are partners at Washington, D.C.-based Venable. They specialize in advertising and marketing law and can be reached at (202) 344-4000.