After years of litigation, California infomercial producer Modern Interactive Technology, Inc. (“MIT”), along with its two principals, recently settled charges by the Federal Trade Commission (“FTC”) that they participated in developing deceptive claims used to sell weight loss products.
The FTC alleged that MIT created, wrote, edited, and produced infomercials for the “Enforma System” — a weight loss program which included the dietary supplements “Fat Trapper” and “Exercise in a Bottle.” These infomercials offered the ability to lose weight without dieting. They included claims such as, “you can enjoy all these delicious foods like fried chicken, pizza, cheeseburgers, even butter and sour cream, and stop worrying about the weight” and “just a few capsules and you’re freed forever from the endless cycles of dieting and guilt, dieting and guilt.”
FTC’s “Red Flags”
Over the last decade, the FTC has brought more than one hundred cases challenging weight loss claims. Today, weight loss continues to be a top priority for the FTC, and it is currently focusing its efforts on claims about whether non-prescription drugs, dietary supplements, creams, wraps, patches, and other devices cause weight loss. As part of its enforcement efforts, in late 2003, the FTC issued a guide entitled “Red Flag: Bogus Weight Loss Claims,” which compiled a list of claims that the FTC said could not be true for these types of products. These claims include:
- Consumers can lose two pounds or more per week (over four or more weeks) without reducing caloric intake and/or increasing their physical activity;
- Consumers can lose substantial weight while still enjoying unlimited amounts of high calorie foods;
- The product will cause permanent weight loss, even when the user stops using the product;
- The product will cause substantial weight loss through the blockage of absorption of fat or calories; and
- Users can lose substantial weight through the use of a product that is worn on the body or rubbed into the skin.
The FTC published its “Red Flags” guide to persuade the media and others to stay away from making or disseminating these and other similar claims. The guide — backed up by the FTC’s aggressive enforcement — appears to be working. According to a study released by the FTC in April, over the last few years, the number of ads that has included these claims has dramatically reduced. Many advertisers appear to have heeded the FTC’s warnings.
Red Flag for Agencies and Production Companies
It’s not only the advertisers that need to watch out. For advertising agencies and production companies, it’s often not enough to just get the client’s approval before making a claim. The FTC has made it clear that if agencies and production companies, and even their principals, participate in the creation of deceptive advertising, under certain circumstances they may also be held liable for violating the nation’s laws that prohibit false advertising. And the FTC has many weapons in its arsenal to go after deceptive claims — including obtaining injunctive relief (that prevents you from engaging in certain practices in the future) and collecting big monetary damages.
What should you do? As a start, before you begin working on a commercial that makes claims that you know just can not be true, whether for a miracle weight loss pill or some other product that is just too-good-to-be-true, ask some questions. Check out the research. Make sure that there is a reasonable basis for the claims that are being made. And, no, I have not seen any evidence to suggest that reading this column will help you to lose weight.
This column presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
Jeffrey A. Greenbaum ESQ. is a partner at Frankfurt Kurnit Klein & Selz, New York. If you have a suggestion for a topic to be covered in a future column, send an e-mail to jagreenbaum@fkks.com
