FTC Updates Guidance on Weight-Loss Claims in Advertising

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The Federal Trade Commission has updated its guidance for media outlets on how to spot
false weight-loss claims when screening advertisements for publication. The “Gut Check
Guidance” updates the Red Flag Bogus Weight-Loss Claims reference guide for media that the
FTC first published in 2003.

The guidance applies to 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.
It does not apply to prescription drugs, meal replacement products, low-calorie foods, surgery,
hypnosis, special diets or exercise equipment.  Gut Check describes seven types of weight loss claims that, by definition, lack scientific proof and should trigger compliance bells and whistles.

The Big Seven:

• 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.

Of course, “substantial weight loss” messages can be conveyed without using specific numbers. For example, reference to dress size, inches or body fat. The guidance also contains advice on
dealing with problematic areas like consumer endorsements (sometimes called testimonials) and
fine print disclosures.

Advertisers often pick and choose their best cases, or even make up bogus endorsements,
deceptively conveying to consumers that they will achieve similar results. Advertisers that
choose to use endorsements have two choices. Either the results in the advertisement must be
typical of what other consumers can expect to achieve, or the advertisement must clearly and
conspicuously disclose the typical results.

Even for the most effective products, services or programs, weight loss of more than a pound a
week over a long period is unusual. Thus, endorsements from consumers claiming 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 disclosure of how
much weight consumers typically can expect to lose.

A disclosure is “clear and conspicuous” if it is readily apparent and noticeable. Consumers
should not have to search for it. A disclosure should be in close proximity to the corresponding
claim and not buried in footnotes that consumers are unlikely to read. The font should be easy to read, in a shade that stands out against the background and at least as large as other fonts used to
convey the claim.

For video advertisements, a disclosure should remain on the screen long enough to be noticed,
read and understood. For video or radio advertisements, a disclosure should be read at a cadence
that is easy for consumers to follow and in words that consumers will understand.

In short, if a disclosure is difficult to locate or understand, if it is obscured by other advertising
elements, or buried in unrelated details, it will not meet the “clear and conspicuous” standard.
Additionally, it is not enough to just say “results not typical” or “your results will vary.”

Also, although the “Gut Check” guidance applies just to dietary supplements, rules regarding
consumer endorsements apply across the board, including all weight loss products, programs and
services.

All those in the stream of commerce must be able to properly substantiate weight loss claims
via two independent, adequate and well-controlled human clinical studies. Recent regulatory
enforcement actions have illustrated study-related issues such as the lack of data available for
independent analysis or the fact that the studies were not blinded or placebo-controlled. If
you are using an expert, be sure that their endorsements relating to product testing are no less
extensive as what other experts in the field would normally conduct.

Consult an experienced advertising and marketing law attorney for assistance walking the fine line
between commerce and compliance.

Information conveyed in this article is provided for informational purposes only and does not
constitute, nor should it be relied upon, as legal advice. No person should act or rely on any
information in this article without seeking the advice of an attorney.