Food & Bev: Federal Trade Commission calls for “gut check” of weight-loss advertising

On January 7, 2014, the Federal Trade Commission kicked off the year with a press conference to announce “Operation Failed Resolution,” which was initiated as part of the FTC’s ongoing effort to stop misleading claims for products promoting easy weight loss and slimmer bodies. The FTC announced actions against four different marketers and advertisers using allegedly deceptive advertising claims to promote weight-loss products. In addition to the announcement of the enforcement actions taken against four different weight-loss operations, the FTC announced an updated guidance for publishers, broadcasters and other media that identified ways to spot phony weight-loss claims when screening ads for publication.

Now that spring is in full swing and summer is right around the corner, the FTC recently renewed its message to media outlets, telling media outlets that “if you or your client run ads for weight loss products, it’s time for a gut check.”

Weight-loss products have long been a category of products that have received close scrutiny from the FTC. Whether it is the “miracle” product being touted to “shed pounds while you sleep” or the cream that will “melt the fat away,” the FTC has always been skeptical of weight-loss products promoted to lose large amounts of weight in a short period of time. As Jessica Rich, Director of the FTC’s Bureau of Consumer Protection, remarked at the year opening press conference “Resolutions to lose weight are easy to make but hard to keep. And the chances of being successful by just sprinkling something on your food, rubbing cream on your thighs, or using a supplement are slim to none. The science just isn’t there.”

This year, the FTC has decided to enlist the media to assist with its regulation of weight-loss advertising. The Federal Trade Commission reissued the guidance entitled “Gut Check: A Reference Guide for Media on Spotting False Weight-Loss Claims” to media outlets around the country, a copy of which can be viewed here. The guidance details seven weight loss claims that the FTC asserts can’t be true and that should prompt a “gut check” for outlets considering weight loss advertisements. The FTC hopes media personnel will think twice before running advertisements that expressly or implicitly indicate that a product:

1. Causes weight loss of two pounds or more a week for a month or more without diet or exercise;

2. Causes substantial weight loss no matter what or how much the consumer eats;

3. Causes permanent weight loss even after the consumer stops using product;

4. Blocks the absorption of fat or calories to enable consumers to lose substantial weight;

5. Safely enables consumers to lose more than three pounds per week for more than four weeks;

6. Causes substantial weight loss for all users; or

7. Causes substantial weight loss by wearing a product on the body or rubbing it into the skin.

The guidance cautions media to watch for the subtle ways in which “gut check” claims may be made. The FTC wants media to be on the look-out for limiting phrases that consumers may not catch like “helps” people lose “up to” 10 pounds a week…” Consumer endorsements are also called out as a regular feature in weight loss ads. Media outlets are reminded that results in an advertisement must be typical of what consumers can expect to achieve or the advertisement must clearly and conspicuously disclose what the typical results are.

Finally, disclosures must be “clear and conspicuous.” In general, disclosures should be:

· close to the claims they relate to;

· in an easy to read font;

· in a shade that stands out against the background;

· for video advertisements, on the screen long enough to be noticed, read and understood;

· spoken in a cadence that’s easy for consumers to follow; and

· in words consumers will understand.

It is clear that federal regulatory agencies like the Federal Trade Commission and the Food and Drug Administration continue to view weight-loss claims with close scrutiny. Now, they are calling on media outlets to assist them in their efforts to prevent false weight loss claims from pervading the print, radio and television arenas. Thus, companies looking to promote and sell weight-loss products to consumers should be familiar with the “gut check” claims and consult someone that can give them the “skinny” on making appropriate and compliant weight-loss claims.

Justin J. Prochnow is an attorney and Shareholder in the Denver office of the international law firm of Greenberg Traurig LLP. His practice concentrates on regulatory and legal issues affecting the food & beverage, dietary supplement and cosmetic industries. He can be reached at (303) 572-6500 or prochnowjj@gtlaw.com and is on Twitter at @LawguyJP.

This article is issued for informational purposes only and is not intended to be construed or used as general legal advice. The opinions expressed are those of the author exclusively.