Some say “ah-sigh;” I say “ah-kai;” but apparently the proper pronunciation of “acai” — the so-called super berry — is actually “ah-sigh-ee.” Who knew? Acai berries are native to the Amazon rainforest and have been hailed by marketers as offering a slew of health benefits, including massive weight loss. Unfortunately, according to various consumer advocacy groups like the Center for Science in the Public Interest, there is zero clinical evidence supporting its weight loss benefits. Nonetheless, that did not stop a bunch of Internet marketers from making such claims for years, and consumers ate it up (so to speak).
Deceptive and misleading weight loss ads are nothing new. A 2002 report published by the Federal Trade Commission (FTC), the government agency tasked to enforce truth-in-advertising laws, disclosed that 55% of advertising for weight loss products and services contain false or unsupported efficacy claims. Below are just a few of the over-the-top weight loss advertising claims we have encountered in recent years, along with a brief discussion on how the FTC handled them.
- Amazon rainforest “super berry” burns body fat
Beginning in 2008, various Internet marketers claimed that acai berries, juices and supplements could cure everything from cancer to aging to erectile dysfunction. But when the ads promised “450% more weight loss than dieting and exercise alone,” everyone went bananas. The weight loss marketing claims included promises to burn fat more efficiently, process food more quickly, cut down on cravings, boost metabolism, and cleanse your system of fat. While acai berries appear to be extremely healthy (they contain tons of antioxidants and nutrients), consumer advocacy groups and the FTC stated that there is absolutely no evidence that they have weight loss properties or burn body fat. On top of the lack of claim substantiation, according to the FTC, various acai berry marketers also used deceptive ad tactics to get consumers to purchase their products, including charging customers for “free trials” of the product and creating fake news websites, fake testimonials and even fake celebrity endorsements. It’s no surprise that the FTC was not very happy about this. A complaint filed by the FTC in federal district court accused several acai product marketers of false and misleading ad claims, and sought injunctions against them. Several acai berry marketers eventually agreed to pay millions of dollars in consumer refunds to settle the FTC charges.
- Just wearing “toning shoes” (without exercise) will tone your buns
In 2011, footwear company Sketchers claimed in ads that its Shape-Ups “toning shoes” would help consumers lose weight and strengthen and tone their backside (without having to go to the gym or exercise). The company recruited reality stars Kim Kardashian and Brooke Burke to promote their weight loss claims. Kardashian in her commercial fired her personal trainer (who she no longer needed thanks to wearing Shape-Ups) and Burke in her commercial told viewers that lacing up her Shape-Ups was the newest way to burn calories and tone muscles. The FTC responded in 2012 by filing a complaint against Sketchers, alleging that the company could not substantiate its claims about the product’s supposed weight loss and muscle strengthening benefits, as compared to regular fitness footwear. The FTC also alleged that Sketchers made deceptive advertising claims, including falsely representing that clinical studies supported its weight loss and toning claims. The FTC admonished the company to shape up their substantiation evidence or tone down their claims. Later that year, Sketchers agreed to settle the FTC claims. In addition to complying with tough injunctive provisions for future Sketchers ad claims, the company agreed to refund consumers $40 million.
- Tea-based skin cream can reshape and slim your body
Skin cream maker Beiersdorf, Inc. claimed in television and online ads and that regular use of its “Nivea My Silhouette!” skin cream reduces body size. The company claimed that the cream’s “Bio-slim Complex,” made from a combination of white tea and anise, could reduce fat. In one TV commercial for the product, an actress applies the cream to her stomach and thighs and then puts on a pair of old jeans, which now seem to fit after applying the cream. The voiceover in the commercial states: “New Nivea My Silhouette! with Bio-Slim Complex helps redefine the appearance of your silhouette and noticeably firm skin in just four weeks. So you can rediscover your favorite jeans.” Sponsored online search ads purchased by Beiersdorf included phrases like “stomach fat” and “thin waist,” so that when consumers searched those terms, Nivea ads would appear, thus implying that the skin cream would reduce stomach fat and help consumers slim their waist. The FTC filed a complaint against Beiersdorf alleging that these ad claims were false and misleading. Beiersdorf settled with the FTC by agreeing to pay $900,000 and to stop making claims that any product applied to the skin causes substantial weight or fat loss, or reduces body size. The company was also required, going forward, to have competent and reliable scientific evidence for any claims regarding the health benefits of its products.
- Sprinkling flavor-enhancing powder on your food will reduce your appetite and promote weight loss
Sensa Products, LLC marketed a flavor enhancing food additive called Sensa, made of tricalcium phosphate, silica and artificial flavors. If that does not water your taste buds, Sensa marketers promised that if consumers sprinkled Sensa on their favorite foods (pizza, pasta, burgers, etc.) it would enhance the food’s smell and taste, making them feel full faster so they would eat less and lose weight without having to diet or exercise. One ad claimed: “Need to lose 30 lbs? Try Sensa Free. Sensa is clinically proven to help you lose 30 lbs without dieting or spending all your time working out. Just sprinkle on your food, eat and lose weight.” The FTC stated that there was no real scientific evidence to back up these claims, and the FTC filed a complaint against Sensa Products and some of its marketers for making false and unsubstantiated claims about the product. The FTC also alleged that the defendants failed to disclose that some of its endorsers were paid for their endorsements with cash and trips to Los Angeles. In 2014, Sensa Products settled with the FTC, agreeing to pay $26.5 million in consumer refunds.
- Oral drops of a placenta hormone will cause rapid weight loss
In 2011, the FTC and the Federal Drug Administration (FDA) took joint action against several marketers who claimed that over-the-counter products containing human chorionic gonadotropin (HCG), the hormone produced during pregnancy by cells that form the placenta, promoted rapid weight loss. Various marketers of HCG products claimed that if consumers took HCG oral drops while adhering to a very low-calorie diet, they would lose weight. The products also contained “FDA Certified” labels and used endorsements by celebrities, including Carmen Electra, to promote their products. According to a joint FDA/FTC press release, there is no evidence that HCG promotes weight loss. In 2013, the FTC filed a complaint against certain HCG marketers for making false claims about their products and failing to disclose to consumers that certain endorsers appearing in ads were compensated or were related to a company employee or officer. In 2014, the defendants settled with the FTC. As part of the settlement, the defendants were ordered to stop making false and misleading claims about HCG products, obtain competent scientific evidence to back up any efficacy claims for the product, and pay a $3.2 million judgment. The money judgment was originally suspended based on the defendants’ alleged inability to pay, but recently a federal district court stated that the FTC could collect the money judgment from the defendants.
The lessons learned from these weight loss advertising cases are clear. If you are an advertiser, make sure that you (1) have sufficient scientific evidence to substantiate your efficacy claims, (2) disclose all paid advertising endorsements and testimonials to consumers (see the FTC’s Endorsement Guides), and (3) pay careful attention to web-based marketing, including keyword advertising through online search ads. The FTC’s website has a webpage dedicated entirely to online advertising and marketing, which contains useful information to help companies avoid common Internet marketing pitfalls. The FTC has also prepared a handy guide to use as a checklist for spotting misleading weight loss claims. Advertisers should be aware of this guide and take active steps to avoid using any of the listed “gut check” claims, which the FTC describes as weight loss claims that experts say simply can’t be true. Examples of gut check claims include telling consumers that your product causes sustained weight loss of two pounds or more a week without dieting or exercise, or causes substantial weight loss no matter what or how much the consumer eats. The FTC and consumer class action attorneys will be looking out for these “gut check” claims, so it is important that advertisers try and avoid using them.
Pingback: Advertising Law Compliance for Start-Up Companies | Advertising & Marketing Law Blog