Advertising Law Alerts

January 15th, 2014

FTC Issues Updated Guidance on Weight Loss Claims

The Federal Trade Commission (the "FTC" or the "Commission") announced this week that it updated its guidance for publishers and broadcasters on how to spot deceptive or false weight-loss claims when screening advertisements for publication. The guidance document, "Gut Check: A Reference Guide for Media on Spotting False Weight-Loss Claims" compiles a list of seven "can't-be-true weight loss claims" that the FTC says should prompt publishers and broadcasters to take a "gut check" (or "a second look") before disseminating the advertising. These include any ad that says that a dietary supplement, over-the-counter drug and/or products rubbed into the skin or worn on the body:

1. causes weight loss of two pounds or more a week for a month or more without dieting or exercise;
2. causes substantial weight loss no matter what or how much the consumer eats;
3. causes permanent weight loss even after the consumer stops using product;
4. blocks the absorption of fat or calories to enable consumers to lose substantial weight;
5. safely enables consumers to lose more than three pounds per week for more than four weeks;
6. causes substantial weight loss for all users; or
7. causes substantial weight loss by wearing a product on the body or rubbing it into the skin.

In a companion letter, also released this week, the FTC asked publishers and broadcasters to share this new guidance with their sales staffs and screen out diet ads that make these "gut check" claims.

The FTC's new "Gut Check" guidance updates the Commission's original guide on weight loss claims, "Red Flag: Bogus Weight Loss Claims," published in 2003. The "bogus" weight loss claims listed in the 2003 guide were similar; however, the FTC has updated its guidance to cover issues of typicality and endorsements to address concerns it enunciated in its 2009 revisions to the Endorsement Guides. As the FTC's new guidance states: "Too often, advertisers cherry-pick their best cases or even make up bogus endorsements, deceptively conveying to consumers that they'll get similar results...If an ad features endorsers making weight loss claims that aren't likely to be typical - but there's no disclosure of typical results or the disclosure isn't clear and conspicuous - ask the advertiser to make a good disclosure or show you that the results are typical."

These two guidance documents further demonstrate the Commission's interest in weight loss claims and its expectation that the media will do its part to prevent the dissemination of deceptive diet ads. Indeed, the Commission has brought hundreds of weight loss enforcement actions over the last decade, and announced this week that it reached settlements in four major weight loss cases: Sensa Products, LLC; L'Occitane, Inc.; HCG Diet Direct; and LeanSpa, LLC.

Given the FTC's ongoing focus on deceptive weight loss claims, advertisers, agencies and the media must use care in developing and clearing these ads. Review the substantiation. Make sure that there is a reasonable basis for all statements about any weight loss product or its ability to achieve certain results for consumers. And remember: If a claim or a product seems too good to be true, it usually is.

If you have any questions about weight loss claims, or about any other advertising law issues, please contact Terri Seligman at (212) 826 5580 or tseligman@fkks.com, Hannah Taylor at (212) 705 4849 or htaylor@fkks.com, or any other member of the Frankfurt Kurnit Advertising, Marketing and Public Relations Group.