In recent years, the U.S. Federal Trade Commission (FTC) has paid particular attention to advertisers who have falsely promised fast and easy weight-loss results. Marketers who promote diet or wellness products or who make representations about weight loss, fat loss, calorie burning or the loss of inches must ensure that their claims are supported by reliable scientific evidence. Recently, the FTC reached an agreement containing a consent order with a multinational cosmetic company to stop claiming that its skin cream causes significant weight loss and reduction in body size. The company agreed to pay US$900,000 to the FTC as part of the settlement. The skin care company was accused of falsely claiming that consumers would slim down with regular use of the product. FTC chair Jon Leibowitz stated that: “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.”
This case makes it clear that, even if a television ad does not expressly claim that the product will cause weight loss, the reasonable consumer may get that impression, based on the depictions and overall effect of the ad. Product claims and representations cannot be false or misleading, and this includes representations that are implied through the use of a product name or illustration. What would also appear to be caught under the enforcement radar is the use of sponsored links on Google to imply that a product has certain properties by linking specific search terms, such as “stomach fat” or “thin waist”, to the search results for the product.
In a separate case, the FTC reached a settlement with a footwear manufacturer in which the manufacturer agreed to pay $25 million in respect of its claims that its product line would tone and strengthen leg muscles. The FTC argued that this claim was unsupported, and commented that such claims must be supported by “sound science”.
The FTC has made it clear that any representation regarding the health benefits of any drug, dietary supplement, cosmetic or fitness device must be substantiated by competent and reliable scientific evidence. A company cannot claim that any drug, dietary supplement or cosmetic product causes weight or fat loss or a reduction in body size unless the claim is supported by two randomized, double-blind, placebo-controlled human clinical studies. Statements from satisfied customers or product in-use tests usually are not sufficient to support a health or safety claim.
Canada has similar requirements for scientific evidence in support of product claims and advertising. The Competition Act provides that any representation or claim about the performance or efficacy of a product must be based on adequate and proper tests. Similarly, the Food and Drugs Act prohibits false, misleading or deceptive advertising of food, drug or cosmetic products. Health Canada and Advertising Standards Canada have issued a guideline that provides examples of acceptable and unacceptable claims for cosmetic advertising and labelling. For contour creams, for example, claims such as “lose inches,” “reshapes,” “enhances/smoothes/contours silhouette” or “slims/slimming” are unacceptable. Similarly, any claims that garments or other devices can lead to weight loss would need to be adequately supported.