FTC Steps Up Enforcement on Health-related Claims in Advertising

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In a recent settlement with Reebok, the U.S. Federal Trade Commission (FTC) clarified that it will impose substantial penalties, including restitution to consumers, on companies that make health-related claims without an adequate basis. Moreover, in the consent decree, the FTC stated exactly what type of proof it would consider adequate to support health-related claims in advertising. As the FTC increases its enforcement of health-related claims in advertising, companies should consider reviewing the FTC's consent decrees to promote compliance with the FTC's advertising rules and, in particular, may want to note what information the FTC considers adequate to substantiate health-related claims.

The FTC sued Reebok—under Section 45(a) of the Federal Trade Commission Act, which prohibits unfair and deceptive acts or practices in or affecting commerce, and under Section 52, which prohibits false advertisements for food, drugs, devices, services or cosmetics in or affecting commerce—for advertising claims Reebok made related to its EasyTone and RunTone toning shoes. In its complaint, the FTC alleged that Reebok claimed the toning shoes improved muscle tone and strength in the butt, hamstrings and calves, and that laboratory results showed that the shoes "improve muscle tone and strength by 28% in the gluteus maximus, 11% in the hamstrings and 11% in the calves." The FTC contended that Reebok made these claims based on inadequate or no proof because the claims were based in part on a trial that involved only five subjects.

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