The FTC is responsible for putting a stop to deceptive or misleading advertising by companies to consumers. What constitutes deceptive or misleading statements can often be
difficult to determine, but this is less so when discussing marketing claims associated with weight loss products. The FTC has set forth seven different statements it will always view as deceptive and misleading.
Weight Loss Industry
The weight loss industry is a very profitable niche, bringing in $60.5 billion dollars in 2013 according to a Market Research Report. Millions of people find weight loss a constant battle, which makes them receptive to creative weight loss marketing statements. A claim of quick weight loss paired with before and after pictures is pretty much a slam dunk method for producing sales. The question is how far can weight loss companies go in making advertising claims?
The standard for what can and cannot be said in weight loss marketing pieces is relatively simple. Each claim must be supported by objective scientific proof. Put another way, you can’t just make things up, something affiliates, in particular, are known to do.
Then we have the issue of extraordinary versus typical results. This distinction often comes into play with before and after pictures. You’ve seen them. The first picture is of a pale person frowning who looks fat and bloated. The second picture shows the same person smiling like mad, tan and looking very thin. Accompanying the image is a statement along the lines of “Jan lost 23 pounds in 10 days.” Of course, the text doesn’t mention Jan bloated up before the 10 days by consuming lots of salt to retain water. There is also no mention of the fact the model then lived off of 500 calories a day while biking for eight hours each day during the 10 day weight loss period.
The FTC frowns upon this marketing technique. Losing 2.3 pounds a day is not a result a person living a healthy life can typically reach. Given this, the FTC requires clear and conspicuous disclaimers be published with the marketing materials.
A particular area of abuse in the weight loss niche involves dietary supplements, body wraps, herbal products, and creams. The field is so toxic that the FTC has actually issued a list of seven claims that it considers deceptive per se. Make these claims, and you are asking for legal problems.
The Toxic 7
The FTC asked a number of medical experts to indicate whether a large set of typical weight loss claims made on the web could be substantiated by scientific evidence or not. The experts identified seven that just could not be backed up by objective evidence. Importantly, these seven statements do not apply to prescription drugs, meal replacement products, low-calorie foods, hypnosis, surgery, exercise equipment or special diets. This prohibition is more about the magic pills or creams you see advertised online. The seven offending statements claim the weight loss product in question:
- 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; or
- causes substantial weight loss by wearing a product on the body or rubbing it into the skin.
Resource: FTC Gut Check Advisory
Let’s take a brief look at each of these claims. While the FTC relies on expert testimony to establish the lack of merit associated with these claims, most just fail the common sense test.
1. Lose 2 pounds or more a week for a month with no exercise or dieting.
Those of us looking to lose weight are suckers for the magic pill, but really? Does this make any sense at all? You’re telling me that so long as I buy a bottle of your magic herbal pills for $79.99, I’ll lose five pounds a week regardless of the fact I do no exercise at all and eat a pint of Ben & Jerry’s for breakfast, lunch and dinner each day? Common sense suggests this is a laughable proposition. Avoid such statements when advertising such products.
2. Eat what you want, but still lose weight.
Unless the magic pill is made of meth, this simply isn’t true. See the previous section AKA the Ben & Jerry’s diet fail.
3. Results in permanent weight loss even after you stop using it!
The only way to keep weight off is by making lifestyle changes involving eating healthy while regularly exercising. Even prescription pills stop working after you stop taking them. Companies and affiliates should avoid making such claims in marketing materials.
4. Blocks absorption of fat or calories.
The only product this claim is true for is Alli, a prescription drug. There are a few natural products that may block fat and calories, but not in sufficient amount to make a difference with weight loss. Avoid such claims unless you have a very strong independent study verifying the claim.
5. Safely lose more than three pounds a week for four consecutive weeks.
Yes, there are situations where weight loss of more than two pounds a week can occur, but not safely. The problem is scientific studies have shown that faster weight loss leads to health problems such as gallstones. Given this, the FTC takes the position this claim is deceptive because of the use of the word “safe.” This claim, however, is one area where a company might have a leg to stand so long as studies exist supporting your position. That being said, a company taking this approach should establish a budget in anticipation of litigation with the FTC.
6. Anyone can lose weight with this product!
The FTC frowns on such claims because it correctly notes that people have unique bodies and metabolism. As a result, the Agency argues no product is going to cause everyone to lose weight. While this conclusion may be questionable, it would be equally difficult for a company to show evidence countering it given it is difficult to test “all” people. As a general rule, these claims should be avoided.
7. Lose weight with creams or gadgets. [Excluding exercise equipment.]
Again, you should be invoking the common sense test here. Are there any exterior gadgets that can cause you to lose weight? The only one I can think of is duct tape placed over the mouth to keep one from consuming food. Short of that, magic metals have never been proven to work scientifically. The same goes for weight loss creams. If you are going to make such claims, ensure that you have a number of independent scientific studies from credible sources backing your claims because the FTC enjoys hunting these types of weight loss products and claims.
No Need To Exaggerate
The weight loss market is a “hope” niche. Marketers need only provide consumers with the hope of weight loss to see robust sales. If your product works, it should be enough to show the accurate results. If the results involve a gradual loss of weight, you can always improve conversion rates by emphasizing the results are realistic unlike other wild, unsubstantiated claims seen on the web. [“While others make wild weight loss claims, we’re going to tell you the truth.] What you cannot do is use any of the seven statements detailed by the FTC above.
Contact me today if you are concerned about the nature of weight loss claims you are asserting online. Don’t wait until the FTC is busting down your office door.
Richard A. Chapo, Esq.