The Skinny On False Weight-Loss Advertising ... And Other Big Fat Lies

A while ago we talked about some problem product areas for advertising, such as tobacco. While tobacco is specifically covered by statute, other product areas can be problematic, too, even if not be specifically covered by a statutory bar. One area that has received a lot of public attention recently is focused on a growing national problem: overweight America!

We've known about this for quite a while. Five years ago, USA Today reported that almost 65% of people in the U.S. are either overweight or obese. Americans' extra weight costs the nation as much as $93 billion in annual medical bills. Wiki Answers reports that Americans spend over $40 billion a year ... and it's rising! That's confirmed by CBS Evening News correspondent Sharyn Alfonsi, who reported that Americans spend about $35 billion a year on weight-loss products. If that much money is being spent, there's going to be advertising on things to spend that money on, right? And a lot of them sound really fantastic. Maybe too fantastic? What about those weight-loss claims? Should you run them? Are they okay? What are your obligations as a broadcaster?

There's not an easy answer. The real question is; can you run an ad that you know or suspect is a lie? Can stations be sued? After all, in 1936, the Commission actually ordered a renewal hearing for a licensee that had aired commercials that made "exaggerated claims" for a weight-loss product.

Remember, the only area where broadcasters actually have a defense by statute on what is aired on their stations is political advertising by a legally qualified candidate. That's the Supreme Court's holding because of §315 of the Communications Act. But there's no such defense for regular advertising.

In 1960, the Commission issued a Program Policy Statement emphasizing the licensee's obligation to avoid the presentation of deceptive advertising on radio and television. It said that broadcasting licensees must assume responsibility for all material which is broadcast through their facilities, including all advertising, for which the licensee has the additional responsibility to take all reasonable measures to eliminate any false, misleading, or deceptive matter. "This duty is personal to the licensee," it said, "and may not be delegated."

Eleven years later, however, the Commission declined to adopt specific rules to eliminate deceptive advertising. Ruling on a petition to adopt by "TUBE" ( Termination of Unfair Broadcasting Excesses) and a companion case against CBS and Washington radio station WTOP, the Commission stated its preference for deferring to the Federal Trade Commission on matters of advertising copy (including weight-loss claims). It did reserve the right to act in a clear, flagrant case, and notified broadcasters that when an advertisement is the subject of an FTC complaint, the licensee should acquaint itself with the charges and the advertiser's response and then make a responsible determination as to whether to continue to carry the advertisements. But the FCC will not impose on broadcasters the duty to conduct their own tests. This is the standard. The broadcaster must make a common sense judgment and exercise reasonable diligence to be alert to obvious area of concern, in light of his own past experience or of established policies and past rulings of the FTC.

Again, in 1986, the Commission pounded in the final nail in eliminating more advertising regulatory "underbrush." In ruling on policies regarding broadcast licensee character qualifications, the Commission specifically took on the question of deceptive advertising, ruling that the broadcaster must itself engage in a "knowing presentation" of the falsity to be considered a licensing qualifications matter; an active participation in perpetrating the deception upon the audience, either by its actual involvement in the knowing creation of a deliberately fraudulent ad or by awareness of Federal Trade Commission ("FTC") or other final governmental action involving the advertisement in question."

So, how does this apply to weight-loss commercials? Weight-loss commercials are an area where the FTC has indeed taken action. While no broadcaster has been taken to task for such commercials -- since 1936 -- clearly broadcasters are on notice of FTC policies and actions and should familiarize themselves with the FTC warnings. While it's unlikely the FCC would take an adverse action without a knowing involvement in a misrepresentation, the groundwork has been laid for some broadcaster responsibility for advertisements that are obviously baseless in this area. Here are some materials of which all broadcasters should be aware.

In 2004, the Federal Trade Commission launched its "Operation Big Fat Lie," a nationwide law enforcement sweep against six companies making false weight-loss claims in national advertisements. Operation Big Fat Lie is a part of the FTC's efforts to: stop deceptive advertising and provide refunds to consumers harmed by unscrupulous weight-loss advertisers; encourage media outlets not to carry advertisements containing bogus weight-loss claims; and educate consumers to be on their guard against companies promising miraculous weight loss without diet or exercise.

These cases followed the FTC's December 2003 "Red Flag" initiative to encourage the media to adopt standards that would screen out weight-loss advertisements containing false claims. As part of the Red Flag initiative, the FTC staff has sent reminder letters to media outlets that ran advertisements challenged in its law enforcement actions. The letters were aimed at assisting media in identifying and rejecting weight-loss ads that contain facially false claims. The media letters included: (1) a copy of the problem advertisement; (2) a copy of the Commission's Reference Guide for Media on Bogus Weight Loss Claim Detection; and (3) a description of each Red Flag Claim contained in the problem advertisement. The FTC also created a website to assist media in identifying false weight-loss claims.

http://www.ftc.gov/bcp/conline/edcams/redflag/index.html

The site provides the following keys for identifying weight loss false claims. It advises that the next time media get an ad or spot for a nonprescription drug, dietary supplement, skin patch, cream, wrap, earring or other product that is worn on the body or rubbed into the body containing claims like the ones below, Red Flag the ad. A claim is too good to be true if it says the product will...

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

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.