Unsubstantiated weight-loss claims for green coffee beans have resulted in yet another settlement with the Federal Trade Commission.
Last September, the agency took action against a company that paid for a botched study on the weight-loss benefits of green coffee beans and then relied upon the study to sell a weight-loss supplement. Applied Food Sciences, Inc., agreed to pay $3.5 million.
Just a few months prior, the FTC also sued a Florida-based company and several executives that marketed their green coffee bean supplement via fake Web sites designed to look like legitimate news sites.
In a new suit, Pure Health LLC, Genesis Today, and the individual who controlled the operations, have agreed to pay $9 million for deceptively claiming that their green coffee bean supplement would allow consumers to lose 17 pounds and 16 percent of their body fat in 12 weeks without diet or exercise.
The defendants stated that the claims were based on a clinical study (the same one challenged by the FTC last year) on television programs like The View and The Dr. Oz Show, the agency said. The TV appearances were then used in marketing campaigns so that the products could make the most of the so-called “Oz effect.”
For example, on the Dr. Oz show the company’s principal suggested search terms so that viewers could find his products online. The defendants also posted links to the episodes with statements like “New Health Discovery! As Seen on TV.”
The agency said the defendants additionally ran afoul of the Federal Trade Commission Act by paying spokespeople to promote the product and portray themselves as independent sources of information, while failing to disclose their financial connection to the companies.
In addition to the $9 million slated for consumer refunds, the agreement requires the defendants to have at least two well-controlled human clinical tests to substantiate any future weight-loss claims. False claims that dietary supplements are scientifically proven are prohibited, as are any misrepresentations about the status of endorsers.
Any claims made by the defendants about the health benefits and efficacy of any dietary supplement or drug cannot be misleading, the FTC said, and must be substantiated by competent and reliable scientific evidence.
Although the vote to file the complaint against the defendants was unanimous, two Commissioners dissented from the proposed stipulated court order. Commissioners Maureen K. Ohlhausen and Joshua D. Wright said that the redress amount improperly penalized the defendants for speech protected by the First Amendment.
“Extracting such a high amount of redress in this case could chill the speech of future speakers on television news or talk shows,” the dissenters wrote. “Food industry representatives who would otherwise discuss health or nutrition topics and mention generic substances or ingredients in a news or talk venue may fear being held liable for failing to meet the FTC’s rigorous advertising substantiation requirements. The majority’s ultimate goal in imposing such an expansive interpretation of advertising and high level of redress may be to chill the speech of Dr. Oz’s future guests. But the First Amendment forbids this objective.”
The redress “also fails to account for the fact that, unlike many weight-loss product claims challenged by the FTC, there is preliminary scientific evidence that [green coffee bean extract] is mildly effective as a weight-loss supplement,” the dissenting Commissioners said. “[I]n cases where the product provides a benefit to consumers, even if that benefit may be modest, we believe the Commission should seek redress more carefully calibrated to balance the need to prevent deception and the desire to avoid deterring the supply of valuable products or information to consumers.”
To read the complaint and stipulated court order in FTC v. Genesis Today, as well as the statements from the Commissioners on the case, click here.
Why it matters: Reminding marketers of the FTC’s focus on weight-loss and health-related claims, the settlement also provided the opportunity for a debate among the Commissioners on the scope of commercial speech and First Amendment protections.