January 08, 2014

FTC Announces Initiative Against Deceptive Advertising for Weight Loss Products

On January 7, 2014, the FTC held a press conference to announce its initiative against deceptive claims made by marketers of weight loss products. Although the FTC has brought dozens of cases in the weight loss area spanning decades, this press conference, and the four cases discussed therein, served as an important reminder by the FTC that it will prosecute marketers of weight loss products and supplements that advertise results not supported by independent, peer-reviewed scientific studies.

In addition, the FTC, in advising media outlets to refuse advertisements for so-called “bogus” weight-loss products, raised the possibility of prosecuting such media outlets in the future if they do not institute self-policing measures to prevent the publication of such advertisements.

Law Enforcement Actions Reviewed

In the press conference, the FTC reviewed four significant law enforcement actions. The first and largest is against the manufacturers and marketers of the weight-loss product SENSA. According to the FTC, the defendants in this case falsely advertised that consumers could achieve substantial weight loss—up to thirty (30) pounds in six (6) months—without diet or exercise and simply by sprinkling the product on food before eating. The FTC reviewed the purportedly “independent, double-blind, placebo-based” studies on which SENSA’s claims were based and determined that SENSA had directed the findings at every angle and that they were otherwise fatally flawed.

The FTC also addressed its action against L’Occitane, which markets various cellulite creams. According to the FTC, L’Occitane falsely and deceptively advertised that users could trim “1 to 3 inches” from their thighs and reduce cellulite through application of the cream without the need for additional diet and exercise. The FTC reviewed both of the studies relied upon by L’Occitane in making these claims and found both to be flawed.

The FTC further addressed its case against HCG Diet Direct, which sells “diet drops” purportedly containing a human hormone that the FTC claims has been promoted for decades as a false weight loss “miracle.” Unlike the defendants in the other actions, HCG does require users to adhere to a strict diet plan limiting caloric intake to only 500 calories per day, which the FTC contends is unsafe. Any consumer success with the product is entirely attributable to this strict diet as opposed to the HCG drops, which the FTC calls “highly diluted.” The FTC also took issue with HCG’s claims that users could drop “7 pounds in 7 days” or “40 pounds in 40 days.”

Finally, the FTC discussed the resolution of a 2011 action it pursued in conjunction with the Attorney General of Connecticut against the marketers of herbal weight-loss supplements LeanSpa and NutriSlim. These defendants ran deceptive advertisements, primarily on the Internet, claiming consumers could lose “25 pounds in 4 weeks.”

New Efforts to Educate Media and Consumers

As part of the press conference, the FTC also announced two new websites it has created in an effort to educate both media outlets and consumers about false and deceptive weight loss ads. Regarding media outlets, the FTC states that it is proven that consumers are more likely to respond to advertisements for weight loss products if they appear on a mainstream or trusted news source. As such, the FTC is sending letters to 75 notable publishers of such advertisements and is encouraging all others to self-police their advertising and refuse to run those containing deceptive weight-loss claims. The FTC has created a reference guide called “Gut Check,” available at www.business.ftc.gov/gutcheck, which provides tips for publishers in identifying deceptive weight loss ads.

Although the FTC did not state it outright, the underlying message of this portion of the press conference is a warning that the FTC will prosecute publishers who run “facially deceptive” weight loss advertisements on their websites. During the Q&A portion of the press conference, a journalist specifically asked the FTC if they planned to prosecute publishers. The FTC responded that they have the authority to initiate such actions.

Regarding consumers, the FTC has launched a fake diet website at www.wemarket4u.net/fatfoe. The FTC intends to run advertisements in the same venues and using the same keywords as those commonly bid upon by marketers of weight-loss products. The FTC’s intent is to redirect consumers to the Fat Foe website to educate them on how to spot deceptive weight-loss advertisements.

Takeaways and Tips

So what does the FTC initiative mean to you and your business? If you are a marketer of a weight-loss product, and have not previously brought your advertising into FTC compliance, it is imperative that you do so now—not only to avoid prosecution by the FTC, but to ensure your advertising continues to be run by major publishers. Important compliance principles include:

  • Do not promise specific weight loss results, such as “lose 5 pounds in 10 days.”
    Statements such as these were the common thread throughout the law enforcement actions reviewed by the FTC. Due to the individual nature of weight loss, it is impossible to make such a statement. It isnot permissible to say “lose 5 pounds in 10 days” with a disclaimer that “results are not typical” or “individual results may vary.” Those disclaimers are only useful when applied to a testimonial statement from a verified consumer, such as “I lost 5 pounds in 10 days.”
  • Be clear that diet and exercise are a necessary component of any weight loss plan.
    In the reviewed cases, the FTC routinely complained about the advertorial suggestion that success could be achieved without diet and exercise. Moreover, the FTC noted that weight-loss products which imply such success is possible only cause consumers to defer legitimate weight loss efforts.
  • Do not use stock photography images of models to advertise the product.
    The FTC clearly considers the advertisement of a weight-loss product using the images of people other than verified users of the product to be false and deceptive. We understand that this is a frustrating “But everyone else is doing it…” situation, however it is simply not compliant.
  • Use truthful testimonials from verified consumers and disclose when they are compensated.
    Use of testimonials is fine so long as they are from verified users of the product who provide you with a testimonial affidavit or release form, which may include use of their image as well. If the consumer is paid for their testimonial, this needs to be disclosed in the advertisement. For further clarity, a verified testimonial such as “I lost 100 pounds,” should not be placed next to an image of any person other than the consumer providing the testimonial.
  • Maintain a file of peer-reviewed scientific studies that support each of the claims you make about your product.
    From the FTC’s perspective, an article from WebMD or CNN.com saying “Scientific studies show X promotes weight loss” is not sufficient support for your advertising claims. However, such articles will often reference the specific scientific studies on which the article is based. You can then use that information to search for the official publication of the test results on a database such as PubMed.gov. Most databases charge for full copies of the journal publication (the abstract is not enough), which is a relatively minor cost of doing business in this field. If you have questions as to whether the study supports your claims, you should obtain the advice of an expert in the field. The alternative—that is, relying on the presumption that since your competitors are saying it is true, it must be—is a dangerous and costly practice.
  • Have your advertising reviewed by a legal professional experienced in FTC Compliance.
    If you have not had your website or advertising reviewed by an attorney, or if it has been a while since your last review, you should obtain such a review to identify any areas of concern. The costs of a compliance review are minor compared to the defense of an FTC action.

Kronenberger Rosenfeld, LLP is experienced in advising clients on FTC compliance issues, including with respect to weight-loss products, dietary supplements, and nutraceuticals. We understand your business model and the desire to achieve compliance while maintaining acceptable conversion rates, and are willing to work with you toward that goal.

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