In the wake of settlements between the FTC and four weight loss product purveyors relating to the companies’ advertising tactics, the FTC has issued updated guidance for media outlets regarding the publication of advertisements for weight loss products and services. Like earlier guidance distributed by the FTC more than a decade ago, this week’s updated version is geared toward helping media spot “bogus” weight loss claims in advertisements submitted for publication and is part of the FTC’s effort to enlist publishers as gatekeepers to help prevent the dissemination of such claims.
On Jan. 7, 2014, as part of its “Operation Failed Resolution” campaign, the FTC announced settlements with four marketers that, the FTC alleged, falsely claimed that their dietary supplement or topical cream products would allow consumers to achieve or maintain substantial weight loss without diet or exercise. This initiative is part of the FTC’s ongoing effort to target what it views as inherently incredible claims for weight loss products—claims with heightened resonance this time of year, when consumers may be looking for a quick way to adhere to their inevitable New Year’s weight loss resolutions. Particularly relevant here, the FTC noted that marketers were (however inadvertently) “assisted” in their efforts by credible media outlets that variously published information or advertising for the products.
The four companies—Sensa Products, LLC; L’Occitane, Inc.; HCG Diet Direct; and LeanSpa, LLC—will pay almost $34 million dollars to redress injury to consumers as a result of deceptive weight loss advertising, including unfounded weight loss claims, fake product reviews and misleading endorsements. FTC v. Sensa Products, 14-cv-00072 (N.D. Ill. Jan. 7, 2014), as one example, targeted a broad, multi-media campaign, including long-form television commercials (“infomercials”), short-form television commercials, radio spots, magazine ads, freestanding newspaper inserts, online ads, and other advertising and promotional materials, involving numerous reputable media outlets, over a six-year period. According to the FTC, Sensa Products claimed that consumers could “get a gym body without going to the gym” by sprinkling a packet of powder on their food, citing as support flawed and inadequate clinical trials and/or statements by paid endorsers (without disclosing the fact that the endorsers had been compensated). Sensa has agreed to pay $26.5 million to the FTC, which will refund it to consumers who bought the product. Under the terms of the consent order, Sensa must in the future have two well-controlled human clinical studies to support weight loss claims for any dietary supplement, food, or drug. (Outside of the consent order context, the existence of a “two-study requirement” is open to debate).
The FTC concurrently announced new guidance for media outlets—“Gut Check: A Reference Guide for Media on Spotting False Weight-Loss Claims” (“Gut Check Guide”) —that updates the FTC’s “Red Flag Bogus Weight-Loss Claims Reference Guide for Media,” published in December 2003 (“Red Flag Guide”). While media outlets are not, generally speaking, obligated to ensure the accuracy of an advertiser’s product claims, the FTC believes that weight loss companies use the reputations of respected media outlets as a “cover,” thus making consumers more likely to believe their unfounded claims. Accordingly, the FTC has sent a letter to publishers and broadcasters, urging them to share the Gut Check Guide with their employees. Like the Red Flag Guide, the Gut Check Guide urges media outlets to develop standards that will screen out problematic weight loss claims before the claims are published or aired. The Gut Check Guide is more concise than the Red Flag Guide, and incorporates the FTC’s recent guidance on endorsements and testimonials and on fine print disclosures—active areas of FTC enforcement—with examples that are specific to weight loss. The Gut Check Guide targets a broad range of products, including dietary supplements (such as herbal remedies), patches, creams, wraps, and similar products worn on the body or rubbed into the skin (but not prescription drugs, meal replacement products, low-calorie foods, surgery, hypnosis, special diets, or exercise equipment).
In order to make it easier for media outlets to identify claims that are potentially problematic, the Gut Check Guide describes seven weight-loss claims that experts agree cannot be substantiated, in the hope that the claims will prompt a “gut check” reaction. These include:
Claims that a product causes weight loss of two pounds or more a week for a month or more without dieting or exercise. E.g., “I lost 30 pounds in 30 days—and still ate all my favorite foods.”
Claims that a product causes substantial weight loss no matter what or how much the consumer eats. E.g., “This revolutionary product lets you enjoy all your favorites—hamburgers, fries, pasta, sausage, and even gooey desserts—and still lose weight. One FatFoe tablet before meals does the work for you and you’ll lose all the weight you want.”
Claims that a product causes permanent weight loss even after the consumer stops using product. E.g., “Thousands of people have used FatFoe and kept the weight off for good.”
Claims that a product blocks the absorption of fat or calories to enable consumers to lose substantial weight. E.g., “Take a StarchBloxIt tablet before meals. It dissolves into a gel that absorbs excess sugars and carbs, preventing them from forming body fat. Eat what you want and still lose weight.”
Claims that a product safely enables consumers to lose more than three pounds per week for more than four weeks. E.g., “Even if you have 40, 50, 60 or more pounds to lose, doctors recommend FatFoe as the no-risk way to blast off the weight and inches in a few short months. Just in time for bikini season or that class reunion.”
Claims that a product causes substantial weight loss for all users. E.g.,“Lose 10-15-20 pounds. Gelaslim works for everyone, no matter how many times you’ve tried and failed.”
Claims that a product causes substantial weight loss by wearing a product on the body or rubbing it into the skin. E.g., “Slink into those skinny jeans in no time. Our patent-pending body wrap will increase the metabolism around your hips to burn fat faster. You’ll lose 2-3 pounds per week just by wearing the body wrap while relaxing. Blast off 25 pounds in 8 short weeks.”
Take Away: The FTC’s case against Sensa illustrates how difficult it can be to identify, target and stop the dissemination of misleading claims, particularly where the touted weight loss does not necessarily appear extreme (e.g., two pounds per week—albeit without diet or exercise). Although as a general rule, media are not liable for the content of advertising, the Gut Check Guide will be helpful for media outlets that already review ads for compliance with their internal standards or are seeking to revise those standards in response to recent enforcement actions. It will also be a helpful resource for media outlets that choose to align with the FTC to target inherently implausible weight loss claims, whether to protect their audience or their reputations. Perhaps more importantly, given the FTC’s new focus on so-called “Native Advertising,” media would be wise to pay careful attention to the content of advertorial, sponsored, or other material jointly created by media and advertisers related to weight loss or weight loss products.