Marketers of Ab Circle Pro Agree to Pay up to $25M in Redress6 Sep, 2012 By: Linda A. Goldstein
The Federal Trade Commission’s (FTC) recently announced settlement against the marketers of the Ab Circle Pro exercise device is the latest in a series of enforcement actions highlighting the increasingly aggressive posture the FTC is taking both in terms of claim substantiation and monetary redress for allegedly unsubstantiated product claims. Following on the heels of both the Reebok and Sketchers settlements, which required even larger monetary payments, this latest settlement contains some important lessons and insights for marketers regarding the current enforcement climate and FTC expectations.
First, this settlement represents a further expansion of the FTC’s efforts to replace the traditional “competent and reliable scientific evidence” standard for claim substantiation with the more rigorous “double-blind clinical study” requirement. As readers may recall, the FTC first began imposing this standard in consent orders involving weight-loss and health-related claims made for foods and dietary supplements in the Dannon, Nestle and Iovate cases. The Sketchers and Reebok cases similarly required that certain muscle toning and fitness claims be supported by a well-controlled clinical study.
Now, in the Ab Circle Pro settlement, the FTC has – for the first time – expressly expanded this requirement to cover exercise equipment. The consent order specifically requires that, for any exercise equipment product, the following claims must be supported by at least one human clinical study that is randomized, placebo-controlled, blinded to the maximum extent practicable, and of at least six weeks duration:
- Claims that the product is likely to cause rapid and substantial weight loss
- Claims that the product is likely to cause targeted weight, inch or fat loss in certain areas of the body
- Claims that the product provides weight, inch or fat loss benefits that are equivalent or superior to any other form of exercise
- Claims that the product makes a material contribution to a system, program or plan that produces any of the results referenced in the bullets above
These highlighted claims are fairly typical of the types of claims commonly made in most exercise equipment shows. The FTC’s requirement in this order that such claims be supported by at least one six-week clinical study should send a strong message to the industry about the level and quality of substantiation that the FTC is likely to require in the future in this product category.
The order also provides a stunning example of the FTC’s increasingly expansive view of the net of potential liability. The order names not only the companies who marketed the Ab Circle Pro, but the corporate officers of Fitness Brands Inc., the infomercial producer and her companies, and Jennifer Nicole Lee, the on-air host who allegedly misrepresented that she had lost 80 pounds using the Ab Circle Pro. The naming of the production company and its principal should serve as a wake-up call to production companies in this industry who rely solely on their clients to substantiate product claims.
The FTC’s message is clear: everyone in the food chain has an independent obligation to make sure that the product claims are properly substantiated and, if you are making health-related or weight-loss claims, nothing short of the robust clinical study described above is likely to satisfy the FTC, at least for now. The FTC’s insistence on double-blind clinical studies is at the heart of its litigation involving POM Wonderful, but unless and until a court dictates otherwise, there is no indication of the FTC retreating from this position. For marketers relying on testimonial and user groups to substantiate weight-loss and health-related claims, the cost of doing business has just gone up.
Linda Goldstein is chair of the Advertising, Marketing and Media division of Manatt, Phelps & Phillips, LLP, based in the firm’s New York office. She can be reached at firstname.lastname@example.org.