The Federal Trade Commission’s campaign to prevent fraudulent weight loss advertising culminated in its third in a series of three reports issued in December of 2003. The campaign originated in September 2002, when the FTC staff issued a report on weight loss advertising concluding that, “despite vigorous FTC law enforcement and consumer efforts, fraudulent and misleading weight loss advertising was widespread and on the rise.”1 Soon thereafter, the FTC undertook an initiative to examine the common deceptive claims regarding weight loss as part of its larger mission to screen out all forms of fraudulent advertising.
On November 19, 2002, the FTC held a public workshop on the deception of widespread weight loss advertising in society. The workshop consisted of members of the media, weight loss industry, and scientists with expertise in the treatment of obese and overweight individuals. The workshop focused on areas relating to the feasibility of weight loss without reducing caloric intake or exercise, improving industry self-regulation of false advertising, and the practicability and challenges of advertisement screening. Based upon the findings of the workshop, the FTC released an educational pamphlet in December 2003 designed to assist media outlets in screening out, or “red flagging, ” deceptively attractive weight loss advertising.
The FTC’s pamphlet, entitled Red Flag: Bogus Weight Loss Claims 2 applies specifically to the advertising of over-the-counter weight loss products including nonprescription drugs, dietary supplements, patches, creams, wraps, and other products worn on the body or rubbed into the skin.3 As examples of false weight loss claims that could harm consumers, the FTC cites several weight-loss claims which are currently scientifically infeasible. Such claims include:
• Cause weight loss of two (2) pounds or more a week for a month or more without dieting or exercise. • Cause substantial weight loss no matter what or how much the consumer eats. • Cause permanent weight loss (even when the consumer stops using product). • Block the absorption of fat or calories to enable consumers to lose substantial weight. • Safely enabling consumers to lose more than three (3) pounds per week for more than four (4) weeks. • Cause substantial weight loss for all users. • Cause substantial weight loss by wearing it on the body or rubbing it into the skin.
A primary goal of distributing the FTC’s “Red Flag” booklet to the media is to assist the media in preventing the widespread publication of fraudulent weight loss advertising. Despite unprecedented levels of FTC enforcement the number of false weight loss advertisements has risen dramatically. Over the last 14 years the FTC has prosecuted 98 cases against marketers of weight loss products and obtained more than $50 million in consumer redress and other financial remedies.4 FTC Chairman Timothy J. Muris recently urged the media “to take part in a joint endeavor, one that includes voluntary and effective media screening, to protect consumers from the harmful physical and financial consequences of purchasing and using a weight loss product based on false advertising claims.”4
The FTC anticipates achieving substantial progress in reducing and ultimately eliminating false weight loss claims through several initiatives:
• First, by providing a meaningful list of obviously false weight loss advertising claims for use by the media and the public.
• Second, by encouraging the media to implement viable media clearance standards it provided in its “Red Flag ” booklet.
• Third, the FTC will continue to work with numerous entities in both the private and public sector developing self-regulatory weight loss policing tactics that incorporate the “Red Flag ” principles.
• Fourth, the FTC will continue holding consumer education programs and develop public service announcements aimed at consumers of weight loss programs.
• Finally, over the course of the next year, the FTC will continue to monitor weight loss advertising to measure improvement and based on the results of the monitoring make appropriate recommendations that the Commission institute actions seeking both injunctive and monetary relief against advertisers who continue to advertise through deceptive claims.
Not all feedback has been positive in regards to the FTC’s initiative to eliminate false weight loss claims. Publishers and broadcasters have raised concerns over enhanced media screening procedures, expressing concern about the efficiency and depth of review proposed by the FTC. In response to media concerns, Muris clarified that the FTC’s position is “not to require television-network style clearance procedures for weight-loss advertisements but only to weed out the most egregious examples such as miracle products, weight loss earrings, and physically implausible promises by comparing the claims in an advertisement with the claims on our list and making any necessary cuts.”4
For more information on the FTC’s efforts to assist the media and others in policing the fraudulent advertising of deceptive weight loss claims, visit the Federal Trade Commission website online at http://www.ftc.gov/bcp/conline/edcams/redflag/index.html. For a copy of the FTC’s December 2003 Staff Report, visit http://www.ftc.gov/os/2003/12/031209weightlossrpt.pdf. The “Red Flag ” booklet can be viewed at http://www.ftc.gov/bcp/ conline/pubs/buspubs/redflag.pdf. Any further inquiries can be directed to Rakesh M. Amin at Amin Law, LLC, by telephone (312) 327-3382 or send an e-mail to Rakesh@amin-law.com.
1.See Weight-Loss Advertising: An Analysis of Current Trends , A Report of the Staff of the Federal Trade Commission, Conclusion, p. 31, (September 2002), available at <http://www.ftc.gov/bcp/reports/weightloss.pdf>.
2.See Red Flag: Bogus Weight Loss Claims , A Reference Guide for Media on Bogus Weight Loss Claim Detection, (December 2003), available at <http://www.ftc.gov/bcp/conline/pubs/buspubs/redflag.pdf>.
3. See Deception in Weight Loss Advertising Workshop: Seizing Opportunities and Building Partnerships to Stop Weight Loss Fraud, A Report of the Staff of the Federal Trade Commission, Executive Summary, p. i, (December 2003), available at <http://www.ftc.gov/os/2003/12/031209weightlossrpt.pdf>.
4. Muris TJ. Do The Right Thing (Apologies to Spike Lee), (Remarks Before the Cable Television Advertising Bureau) (New York, NY: February 11, 2003), available at <http://www.ftc.gov/speeches/muris/030211rightthing.htm>.