The FTC’s “Gut Check” Guide for Identifying Deceptive Weight Loss Claims
The Federal Trade Commission consistently initiates investigations and enforcement actions designed to curb misleading claims for products promoting easy weight loss and slimmer bodies. In doing so, the FTC has provided guidance for advertisers and publishers of weight-loss claim “red flags” that are likely to draw the ire of a regulator.
The guidance is entitled, “Gut Check: A Reference Guide for Media on Spotting False Weight-Loss Claims.” The guidance details a number of weight loss advertising claims that the FTC asserts simply cannot be true and, consequently, may prompt unwanted scrutiny.
Online Advertising Compliance
The FTC has brought hundreds of cases challenging deceptive weight loss claims. Aggressive marketing is one thing, but marketers are well advised to consult with experienced an experienced FTC advertising law compliance lawyer to avoid an unwanted investigation or litigation matter.
Scientists have established that there are some weight-loss claims that simply cannot be true. Such representations should be avoided. Of course, just because one of the specifically enumerated claims are not being used does not necessarily mean that the claim is capable of being substantiated.
By and large, the FTC’s guidance focuses upon dietary supplements, including herbal remedies, over-the-counter drugs, as well as patches, creams, wraps, and similar products worn on the body or rubbed into the skin.
Weight Loss Advertising Rules of the Road
Scientific proof is required to support objective weight loss claims made in advertisements. False or misleading claims can be conveyed in words and in images.
Before and after photos, as well as consumer endorsements (or, testimonials), are an FTC favorite. Cherry picking best cases, not disclosing generally expected results, fabricating bogus endorsements and otherwise deceptively conveying to consumers that they will obtain similar results are almost certain to result in regulatory action.
According to the Commission, even for the most effective products, services or programs, weight loss of more than one pound a week over a long period is unusual. Consequently, genuine endorsements from consumers that claim to have lost an average of two pounds or more per week for a month or more – or endorsements from people who say they lost more than 15 pounds overall – should be accompanied by a clear and conspicuous disclosure of how much weight consumers typically can expect to lose.
What Makes a Disclosure Clear and Conspicuous?
A disclosure is clear and conspicuous it stands out in an advertisement. It should find the consumer without the consumer having to search for it.
Without limitation, disclosures should be:
- Close to the claims they relate to and not buried in footnotes or mouse print
- In a font that is easy to read
- In a shade that stands out against the background
- For video ads, on the screen long enough to be noticed, read and understood
- For video or radio ads, read at a sufficient volume and in a cadence that is easy for consumers to follow
- In easily understandable language
It is insufficient to merely state “results not typical” or “your results will vary.” If the endorsement does not depict generally anticipated results, the actual typical results must be disclosed.
Red Flags
Several of the “gut check” claims refer to “substantial weight loss.” According to the FTC, this means “a lot of weight” and includes weight loss of a pound a week for more than four weeks or a total weight loss of more than 15 pounds in any time period. Substantial weight loss representations can also be conveyed without using any specific numbers (e.g., dress size, inches, body fat, etc.).
Marketers should consult an online advertising and marketing attorney before disseminating any advertisement that states, expressly or impliedly, that a product:
- Causes weight loss of two pounds or more a week for a month or more without dieting or exercise
- Causes substantial weight loss no matter what or how much the consumer eats
- Causes permanent weight loss even after the consumer stops using product
- Blocks the absorption of fat or calories to enable consumers to lose substantial weight
- Safely enables consumers to lose more than three pounds per week for more than four weeks
- Causes substantial weight loss for all users
- Causes substantial weight loss by wearing a product on the body or rubbing it into the skin
Advertisements that suggest consumers can lose weight fast without changing their lifestyles – even without mentioning a specific amount of weight or length of time – are going to be met with aggressive regulatory skepticism 100% of the time.
Regulatory agencies like the Federal Trade Commission and the Food and Drug Administration continue to scrutinize weight-loss claims and have exhibited no signs of slowing down related enforcement activities. Contact the author at rnewman@hinchnewman.com to discuss nutraceutical and dietary supplement advertising compliance.
Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements. Follow him on LinkedIn at FTC Compliance Lawyer.
ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35thFloor, New York, NY 10005 | (212) 756-8777.
