FTC to Media: Time to Lose Some Pounds

Just in time for the New Year, as thousands of people are making weight loss resolutions and searching for ways to stick to them, the Federal Trade Commission (FTC) released updated guidance for publishers and broadcasters on how to evaluate weight-loss claims when screening ads for publication. The imposition of liability on the media for deceptive claims that are published is not new, and major television networks already pre-clear advertisements to ensure that they not misleading violations of section 5 of the FTC Act. Thus, the guidance does not create new liability for publishers, but rather provides a reminder for publishers to be vigilant when it comes to weight-loss claims.

The FTC’s Gut Check: A Reference Guide for Media on Spotting False Weight-Loss Claims, provides an update to its original "Red Flag Bogus Weight Loss Claims" reference guide from 2003. "Gut Check" identifies seven automatically suspect weight loss claims that should trigger investigation by publishers to ensure truthfulness. Such claims include:

  • 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
  • Causes substantial weight loss by wearing a product on the body or rubbing it into the skin

Additionally, "Gut Check" provides guidance on the use of consumer endorsements and disclaimers. The guides remind publishers that consumer endorsements must either be typical of the weight loss results experienced by users, or must clearly and conspicuously disclose what the typical results are. The FTC concludes that as a rule, endorsements from people who claim 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. Regarding clear and conspicuous placement, the FTC says that disclosures should be:

  • Close to the claims they relate to – for example, consumer testimonials – and not buried in footnotes or blocks of text people aren’t likely to read
  • In a font that’s easy to read and at least as large as other fonts the advertiser uses to convey the claim
  • In a shade that stands out against the background
  • For video ads, on the screen long enough to be noticed, read, and understood
  • For video or radio ads, read at a cadence that’s easy for consumers to follow, and
  • In words consumers will understand

"Gut Check" was released in conjunction with settlements in four weight-loss cases, indicating this is an area of great concern to the FTC that will likely see continued stringent enforcement.

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