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.
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.”
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.
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:
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.
This entry was posted on Wednesday, January 08, 2014 and is filed under FTC Advertising Law Compliance, Internet Law News.