Education on Proper Weight Loss Claims

    Kevin Thompson is an MLM attorney, proud husband, father of four and a founding member of Thompson Burton PLLC. Named as one of the top 25 most influential people in direct sales, Kevin Thompson has extensive experience to help entrepreneurs launch their businesses on secure legal footing. Recently featured on Bloomberg TV and several national publications, Thompson is a thought-leader in the industry.

    In a society that places a strong emphasis on appearance and in a country where a high percentage of Americans struggle with their weight, the U.S. market for weight–loss products is a booming industry. The FTC, along with other local and state consumer protection agencies, has recently started aggressively enforcing inappropriate claims for weight–loss products. Dependent on the circumstances, penalties for false or misleading claims can be severe. Regulators have made it clear that they’re taking these claims seriously. With this in mind, it’s time we all become more informed about the basic rules.

    Marketing Challenges

    Remember 7 minute abs? While hilarious, the famous scene in “There’s Something About Mary” reminds us that marketing for weight loss products can get a bit ridiculous. The temptation is to appeal to peoples’…well…laziness. And in a competitive landscape, with countless weight loss products, companies are pressured into stretching the truth, implying that results are significant and EASY compared to the competition.

    Since the rules are somewhat strict when it comes to weight loss claims, marketing these products effectively presents a serious challenge. It’s obviously easier to market a product as a “quick-fix” without adding the phrase “combined with diet and regular exercise.”  This is known as a “buzz-kill” for marketers.

    Real Claims, Real Problems

    “U.S. patent reveals weight loss of as much as 28 pounds in 4 weeks…Eat all your favorite foods and still lose weight. The pill does all the work.”

    “Lose up to 2 pounds daily without diet or exercise.”

    “Thigh Cream drops pounds and inches from your thighs.”

    “Lose excess body fat. No willpower required. Works for everyone no matter how many times you’ve tried and failed before.”

    “The Super Fat Fighting Formula inhibits fats, sugars and starches from being absorbed in the intestines and turning into excess weight, so that you can lose pounds and inches easily.”

    FTC Rules

    Under the Federal Trade Commission Act, claims made in an advertisement must be truthful and the advertiser must be able to substantiate the claims with proof of their truthfulness. “A deceptive ad is one that contains a misrepresentation or omission that is likely to mislead consumers acting reasonably under the circumstances to their detriment.” (more here: FTC’s An Advertising Guide for the Industry)

    The FTC evaluates ads based on how a reasonable customer would respond to or interpret the information in the ad.

    Proper Disclosures

    The FTC regularly pursues weight loss products that overpromise results in their advertisements. Under Section 5 of the FTC Act, if an ad or an element of an ad could be misleading in the absence of disclosure, then that information should be disclosed within the advertisement to clarify.

    As an example, a weight loss supplement ad claims that a study found that individuals could lose “seven pounds in seven days.” The advertisement does not mention that the study participants also exercised and starved themselves for the duration of the study. That the participants exercised and dieted would need to be disclosed within the advertisement to avoid the ad potentially misleading consumers about the supplement’s effectiveness. Additionally, if the results represented are not typical, then the ad must have a disclosure stating what result a consumer could typically expect from using the product. And the disclosures need to be specific. Long gone are the days when “results may vary” was enough.

    Regarding disclosures, there’s a right and a wrong way to do it. I once had a client try to insert a disclosure in white font on a white page. Unfortunately, it takes more than simply throwing a disclosure on a page to “check that box.” It needs to be placed in a way that is easy for a consumer to find and must also be phrased in a way that would be easy for a consumer to understand. Avoiding lengthiness and ambiguity is key. In the words of the FTC, disclosures must be “clear and conspicuous.”

    Ensuring that Claims and Representations Are Substantiated

    An advertiser must be able to substantiate any material claim or representation about a product that is made in an advertisement or potentially face liability. A company must have a “reasonable basis” for any express or implied claims or representations prior to the advertisement running. The company must have derived this “reasonable basis” from objective evidence that proves the claim, such as a scientific study. Generally, the FTC Commission determines what constitutes a “reasonable basis” for a claim by considering a variety of factors, which include: 1) the type of claim in the ad; 2) the type of product the advertisement is marketing; 3) the consequences of a false claim and the benefits of a true claim with regard to the type of product; 4) what amount of substantiating evidence experts think is necessary; and 5) the cost of procuring the appropriate amount and type of substantiating evidence.

    There is typically a higher burden for claim substantiation for products related to health or safety, such as dietary supplements. The FTC generally requires that claims for weight loss products be substantiated by reliable scientific evidence. “Reliable” means the data must be collected using methods that experts in the field of weight loss accept as reliable and that qualified individuals must review the data. Letters or testimonials from satisfied customers are not enough to support a claim made about a weight loss product. Sensa and HCG Platinum were also fined for misrepresenting scientific studies as supporting their claims.

    Conclusion: Do’s and Don’ts

    Don’t

    Imply that weight loss will result without adjustments to diet and exercise;
    Use consumer testimonials containing above-average results without disclosing average results;
    Make specific claims about the product without proper substantiation (i.e. “9 out of 10 doctors endorse our product,” “The average person loses 10 pounds in 3 weeks,” etc.);
    Overstate the benefits of the product;
    Ignore what’s happening in the field. The company is judged based on activities from the field.

    Do

    Collect data supporting all of the potential claims that are being made by distributors;
    Educate distributors to provide proper disclosure while marketing the weight loss products. This can be done via videos, email newsletters and content on the website;
    Pay attention. The company is obligated to monitor distributor behavior to detect any issues.
    Disclose the average results on all marketing material that contains above average weight loss claims.
    Provide disclosures in a clear and conspicuous format, easy to read by all prospective customers.

    There is serious demand for weight loss products in this country.  Those that market or advertise these products have great opportunities for success.  In order to reap the full benefit of these opportunities and to avoid the steep penalties being imposed by the FTC, complying with some of these rules is vitally important.

      Kevin Thompson is an MLM attorney, proud husband, father of four and a founding member of Thompson Burton PLLC. Named as one of the top 25 most influential people in direct sales, Kevin Thompson has extensive experience to help entrepreneurs launch their businesses on secure legal footing. Recently featured on Bloomberg TV and several national publications, Thompson is a thought-leader in the industry.