Attorney: Expect FTC Binge on Diet Claims

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The Federal Trade Commission sent a sharp message to marketers of weight-loss products last week with its release of a study showing that a large percentage of ads used misleading testimonials, deceptive before-and-after photos and false claims.

The study shows that the agency still considers the issue a major problem, said New York attorney Jeffrey Edelstein, a partner and marketing law specialist with Hall, Dickler, Kent, Goldstein & Wood, and marketers can expect more law enforcement actions by the FTC on this front in the near future.

However, despite the FTC's suspicions of weight-loss products, it remains possible to market them to consumers and abide by federal guidelines.

"Advertisers can make a good-faith effort to get substantiation to support their claims that their product is effective," he said. "They can then be careful when they make their advertisements."

More than half of all ads for weight-loss products contain questionable claims, and 40 percent contain at least one claim that is almost certainly an outright falsehood, the commission said in the study. The FTC examined 300 ads and promotions that ran in major media channels, including mainstream and national magazines, from February to March 2001.

In a majority of cases, the products were sold via direct response, by mail, telephone or Internet order, said Timothy Muris, FTC chairman.

Marketers often run into trouble in their use of testimonials, taking one or two success stories and portraying them as average, Edelstein said. They also make claims that, as the FTC has noted, defy mainstream medical thinking, which is a sure-fire way to attract regulator attention.

To avoid an FTC lawsuit, marketers can use rigorous clinical testing to determine how effective their product is and what benefits most consumers will experience in using the product, Edelstein said.

"The lessons are, you really have to take care when you're preparing your advertising that you have substantiation for your claims," he said. "Make sure that when you're using examples of consumers who lost weight, the weight loss is typical."

The past 10 years have seen a shift away from low-calorie meal replacement products to pills that marketers commonly claim work in the absence of diet and exercise, the FTC said. The likelihood that weight-loss product ads make misleading claims has grown since 1992, and the overall number of ads for weight-loss products doubled from 1992 to 2001.

The FTC conducted the study along with the Partnership for Healthy Weight Management. The agency plans to hold a public workshop Nov. 19 on deceptive advertising in the weight-loss product industry.

In addition to the study, the FTC said it filed federal civil charges against a Quebec-based company doing business under the name Bio Lab, which marketed the weight-loss and cellulite-treatment products Quick Slim and Cellu-Fight. The company claimed the products eliminated weight and cellulite without any user effort.

Bio Lab advertised Quick Slim in Glamour and TV Guide magazines, in weekend newspaper coupon inserts in the Dallas Morning News, San Francisco Examiner, Los Angeles Times and Washington Post, and on the Internet, and sold it via direct response, the FTC charged. Bio Lab marketed the Cellu-Fight product via direct mail and Internet advertising.

Neither product has been clinically proven to provide the benefits claimed in the ads, the FTC said.

On Sept. 6, a federal judge in Albany, NY, approved a restraining order against Bio Lab prohibiting it from advertising and essentially halting the company's operations, Muris said. A preliminary hearing on the case is set for Sept. 20.


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