At Kronenberger Rosenfeld, we represent manufacturers, sellers, and advertisers of weight loss products and are familiar with the unique legal and compliance issues faced by any company doing business in the weight loss industry.
The time-honored maxim of caveat emptor—or “let the buyer beware”—is no longer the governing principle when it comes to the sale of weight loss products. During the past decade, the Federal Trade Commission (FTC) has brought numerous cases in the weight loss arena and has recently announced the possibility of prosecuting media outlets that do not refuse advertisements for so-called “bogus” weight-loss products. Additionally, state and county law enforcement authorities, including Attorneys General and District Attorneys, have undertaken their own investigations regarding the online advertising of weight loss products. Finally, there has been a gradual rise in consumer class actions against companies that market and sell weight loss products. The cumulative result of these legal actions has been to rewrite the rules of marketing. To paraphrase the FTC’s comments at a press conference regarding certain weight loss products, it is no longer “let the buyer beware,” but rather, “let the buyer be educated.”
Kronenberger Rosenfeld has extensive years of experience helping its clients in the weight loss industry navigate and stay on top of this ever-changing regime of regulations. We routinely conduct reviews of weight loss websites and advertising material for clients to ensure they are compliant with state and federal regulations, including the FTC Act. Among the points of review used are:
- Does the material promise specific weight loss results, such as “lose 5 pounds in 10 days”? Statements such as these are the common thread throughout law enforcement and class actions. Due to the individual nature of weight loss, it is impossible to make such a statement. It is not permissible to say “lose 5 pounds in 10 days” with a disclaimer that “results are not typical” or “individual results may vary.” Those disclaimers are only useful when applied to a testimonial statement from a verified consumer, such as “I lost 5 pounds in 10 days.”
- Is the material clear that diet and exercise are a necessary component of any weight loss plan? The FTC routinely complains about the advertorial suggestion that success could be achieved without diet and exercise. Moreover, the FTC has noted that weight-loss products that imply such success is possible only cause consumers to defer legitimate weight loss efforts.
- Does the material use stock photography images of models to advertise the product? The FTC and other law enforcement agencies clearly consider the advertisement of a weight-loss product using the images of people other than verified users of the product to be false and deceptive.
- Does the material use truthful testimonials from verified consumers and disclose when they are compensated? Use of testimonials is fine so long as they are from verified users of the product who provide you with a testimonial affidavit or release form, which may include use of their image as well. If the consumer is paid for their testimonial, this needs to be disclosed in the advertisement. For further clarity, a verified testimonial such as “I lost 100 pounds,” should not be placed next to an image of any person other than the consumer providing the testimonial.
- Does the client maintain a file of peer-reviewed scientific studies that support each of the claims made about the product? From the FTC’s perspective, an article from WebMD or CNN.com saying “Scientific studies show X promotes weight loss” is not sufficient support for your advertising claims. However, such articles will often reference the specific scientific studies on which the article is based. You can then use that information to search for the official publication of the test results on a database such as PubMed.gov. Most databases charge for full copies of the journal publication (the abstract is not enough), which is a relatively minor cost of doing business in this field. Sometimes, when past studies are unclear, we advise the client to obtain the written opinion of an expert in the field.
If you have not had your website or advertising campaigns reviewed by an attorney, or if a significant amount of time has passed since your last review, you should obtain such a review to identify any areas of concern. The costs of a compliance review are minor compared to the defense of an FTC or consumer action. Kronenberger Rosenfeld, LLP is experienced in advising clients on FTC compliance issues, including with respect to weight-loss products, dietary supplements, and nutraceuticals. We understand your business model and the desire to achieve compliance while maintaining acceptable conversion rates, and are willing to work with you toward that goal.