The FTC Staff has long had a focus on deceptive weight loss claims, including a consumer education mission to urge buyers to maintain a “healthy portion of skepticism” when considering the claims of weight loss products, and a call to action urging media outlets to police against deceptive slim down claims, as well. Its most potent weapon in the diet wars is using its enforcement powers aggressively in going after marketers for making allegedly false and deceptive weight loss claims. With a recent settlement, the FTC has again stepped up its game, and any marketer of diet or wellness products should take heed.
Weight loss claims, like other health claims, require competent and reliable scientific evidence as support, and as we have reported, the FTC recently settled a matter with Iovate Health Sciences. where it defined such evidence as two controlled human clinical studies or the product or essentially equivalent product conducted by different researchers.
Recently, the FTC reached a settlement with Beiersdorf, Inc., the maker of Nivea My Silhouette! Redefining Gel Cream over advertisements in which Nivea allegedly implied the gel would reduce body size. This settlement has the same requirements as the Iovate settlement with the heightened definition of the required substantiation for weight loss claims.
In the complaint, the FTC claimed that Beiersdorf spread false or misleading representations about My Silhouette in a television advertisement and via sponsored results for Google searches relating to body size, like “stomach fat,” or “thin waist.” The My Silhouette television ad showed a woman finding her skinny jeans and discovering that they now fit. The internet ads stated “Nivea My Silhouette Can Reduce the Appearance of Your Curves!” What is interesting is what is not claimed. There is no express claim that this product will cause weight loss, let alone a promise of a significant reduction.
The proposed settlement prohibits Beiersdorf from representing that My Silhouette or a similar product applied to the skin promotes significant weight loss or body size reduction. As fencing in it further prohibits the company from claiming any drug, supplement or cosmetic causes weight or fat loss or any reduction in body size “through the use of a product name, endorsement, depiction, or illustration,” absent verification by two clinical studies. More generally, any claim Beiersdorf makes about the health benefits of any drug, supplement or cosmetic must be supported by reliable scientific evidence. Finally, the proposed settlement requires that the company pay $900,000 to the FTC.
As FTC Chairman Jon Leibowitz counseled, “The real skinny on weight loss is that no cream is going to help you fit into your jeans. The tried and true formula for weight loss is diet and exercise.” The real skinny for advertising lawyers is to take a very conservative and careful view as to what claims may fairly be implied by your ads. Iovate redefined the competent and reliable scientific evidence standard; this case makes clear that even fairly subtle implied claims may not escape the enforcement radar.
- Amy Mudge and Ellen Mossman
