Circuit Court Upholds Garvey Infomercial Ruling
A three-judge panel in the Ninth U.S. Circuit Court of Appeals in Pasadena, CA, ruled Sept. 1 that Garvey was not liable for statements he made while appearing in the infomercials. This limits the circumstances in which an advertising spokesman is held responsible for product claims.
"The court set a very high standard of liability regarding celebrity endorsements and testimonials," Edward Glynn, a partner at Garvey's law firm, Venable LLP, said in a statement.
The circuit court said U.S. District Judge Gary A. Feess of the Central District of California was correct in deciding Garvey's endorsement was within the meaning of a Federal Trade Commission guidebook.
The FTC in 2000 sued Garvey and the producers of DRTV spots for Enforma Natural Products, Encino, CA. The agency alleged infomercial producer Modern Interactive Technology Inc. made false advertising claims when it aired the spots 48,000 times between December 1998 and May 2000.
The FTC claimed false advertising and other violations of the Federal Trade Commission Act in connection with the infomercials for Fat Trapper and Exercise in a Bottle, weight-loss supplements that were part of the Enforma System.
Garvey endorsed Exercise in a Bottle and Fat Trapper, which is made from seafood shells and, according to the court, "surrounds the fat in the food you eat and entraps it." He was paid $1.1 million for the infomercials.
Glynn said the Garvey decision is the highest court ruling covering FTC policies on celebrity endorsements. It is also one of the most notable since a legal settlement involving singer Pat Boone for his endorsement of an acne medication in the 1970s. However, endorsers must always be aware of potential pitfalls.
"This isn't carte blanche," Glynn stated. "If you're a celebrity spokesperson, you have to take at least sufficient steps so someone won't be able to say you were recklessly indifferent to the truth of product claims. You can't just show up and say, 'Where's my script?' "