On June 17, 2014, the Senate Subcommittee on Consumer Protection held a hearing entitled “Protecting Consumers from False and Deceptive Advertising of Weight-Loss Products,” during which media outlets were urged to pay closer attention to the accuracy of claims made in ads for weight-loss products. This hearing followed through on a promise made by Subcommittee Chairman Claire McCaskill (D-MO) in January. Senator McCaskill’s pledge followed the Federal Trade Commission’s (“FTC”) announcement of renewed efforts to combat false and deceptive ad claims in this area through its “Operation Failed Resolution.”
Witnesses, including the FTC’s Mary Koelbel Engle, Associate Director of the Division of Advertising Practices, pointed to the FTC’s attempts to inform media outlets regarding the widespread use of outlandish claims by some weight-loss product manufacturers as part of the solution. Ms. Engle observed that “[w]hen consumers see products and ingredients marketed in sophisticated ways on respected media outlets and praised by people they trust, it can be difficult for them to listen to their internal voices telling them to beware.” She went on to explain that “[t]hat is why we have long sought the partnership of the media to screen deceptive diet ads before they run.”
Senator McCaskill, however, seems to want the FTC to go further, and pressed Ms. Engle as to why the FTC has never brought enforcement actions against media outlets that carry ads. In response, Ms. Engle praised the current scheme of voluntary cooperation by the media and noted the First Amendment concerns that would be raised if the agency pursued media outlets directly. However, she asked media outlets to do a better job of screening ads for false and deceptive claims, and explained that Section 12 of the FTC Act permits the agency to take action against any entity that disseminates a false or deceptive advertisement for a food, drug, or cosmetic.
This means that all media should take care to screen ads for false and deceptive claims, whether those ads will be broadcast, transmitted by cable or satellite, run in print, or placed on a website. As part of “Operation Failed Resolution,” the FTC made available a reference guide entitled “Gut Check” and an accompanying quiz that it has asked entities accepting ads to use to spot false claims. The agency has requested that the media use these tools to “serve as a front-line defense, halting false claims before they run—and before people risk their money and maybe even their health on a worthless product.” As we’ve explained before (here and here), “Gut Check” includes a list of seven representations that simply cannot be true and contains guidelines concerning the use of endorsements in ads for weight-loss products.
So when faced with an ad for a weight-loss product, what are media outlets to do? Exercise caution, screen the ad for compliance with the FTC criteria, and, if in doubt, consult with legal counsel for guidance.