The Federal Trade Commission (FTC) has released updated guidance for publishers and broadcasters on how to evaluate weight-loss claims when screening ads for publication. The imposition of liability on the media for deceptive claims that are published is not new and major television networks already pre-clear advertisements to ensure that they do not violate Section 5 of the FTC act. Thus, the guidance does not create new liability for publishers, but rather provides a reminder to be vigilant when it comes to weight-loss claims.

Gut Check: A Reference Guide for Media on Spotting False Weight-Loss Claims provides an update to the FTC's original Red Flag Bogus Weight Loss Claims reference guide from 2003. Gut Check identifies seven automatically suspect weight-loss claims that should trigger investigation by publishers to ensure truthfulness:

  • Causes weight loss of two pounds or more a week for a month or more without dieting or exercise;
  • Causes substantial weight loss no matter what or how much the consumer eats;
  • Causes permanent weight loss even after the consumer stops using the product;
  • Blocks the absorption of fat or calories to enable consumers to lose substantial weight;
  • Safely enables consumers to lose more than three pounds per week for more than four weeks;
  • Causes substantial weight loss for all users; and
  • Causes substantial weight loss by wearing a product on the body or rubbing it into the skin.

Additionally, Gut Check provides guidance on the use of consumer endorsements and disclaimers. The guides remind publishers that consumer endorsements must either be typical of the weight loss results experienced by users or clearly and conspicuously disclose what the typical results are. The FTC concludes that, as a rule, endorsements from people who claim to have lost an average of two pounds or more per week for a month or more (or endorsements from people who say they lost more than 15 pounds overall) should be accompanied by a disclosure of how much weight consumers typically can expect to lose. Regarding clear and conspicuous placement, the FTC says that disclosures should be:

  • close to the claims to which they relate (eg, consumer testimonials) and not buried in footnotes or blocks of text that people are unlikely to read;
  • in a font that is easy to read and at least as large as other fonts that the advertiser uses to convey the claim;
  • in a shade that stands out against the background;
  • for video ads, on the screen long enough to be noticed, read and understood;
  • for video or radio ads, read at a cadence that is easy for consumers to follow; and
  • in words that consumers will understand.

Gut Check was released in conjunction with settlements in four weight-loss cases, indicating this is an area of great concern to the FTC that will likely see continued stringent enforcement.

For further information on this topic please contact Caroline Klocko at Reed Smith LLP by telephone (+1 202 414 9200), fax (+1 202 414 9299) or email (cklocko@reedsmith.com). The Reed Smith LLP website can be accessed at www.reedsmith.com.