Recent FTC Actions Focus Attention on Weight-Loss and Nutrition Advertising
By: RICHARD J. WEGENER
Turn on any newscast – it takes only minutes to learn of today’s national concern with obesity. The obesity epidemic is refocusing attention on issues surrounding weight loss and nutrition. While the Federal Trade Commission is not a public health agency, it does have a long history of regulating marketing under Section 5 of the FTC Act, which broadly prohibits unfair or deceptive acts or practices in commerce. An act or practice is “deceptive” if it misleads consumers acting reasonably under the circumstances and is material, that is, likely to affect the purchase or use decision. Deception Policy Statement, appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 168-170 (1984).
FTC Acts Against Deceptive Weight-Loss Claims
The FTC is committed to law enforcement against deceptive advertising for weight loss pills, patches and programs. For example, claims that SkinnySleep™ (a dietary supplement pill) “works overnight with a thermic formula to burn fat while you sleep . . . to make sure you wake up . . . skinnier than when you went to bed” were successfully challenged as unsubstantiated. Federal Trade Commission v. The Fountain of Youth Group, LLC., No. 3:04-CV-47-J-99HTS (D.M. Fla. 2004).
High Profile Proceeding Challenge Nutritional Content Claim
The Commission has also brought cases challenging foods' nutritional content claims. In a high profile proceeding this summer, the Commission challenged KFC ads that portrayed eating a bucket of KFC chicken as “eating better” and that " [t]wo KFC breasts have less fat than a BK Whopper.” In fact, KFC chicken had only slightly less total fat than a Whopper, but more than three times the transfat and cholesterol, more than twice the sodium and more calories. KFC corporation (2004). In yet another proceeding against a well-known food product, the FTC challenged ads claiming that Wonder Bread, a good source of calcium, would help children's brain function and improve memory. Interstate Bakeries Corp. , 2002 F.T.C. LEXIS 20 (2002) (consent order). Although calcium does affect brain function, the Commission alleged there was no evidence that adding calcium to the diet would improve brain function and memory. The FTC also settled charges that the company's advertising agency knew or should have known that the claims were unsubstantiated.
The Commission has also challenged deceptive fat and calories claims made in food advertising. In one case, an ad claimed that the Klondike Lite Ice Cream Bar was 93% fat free. The FTC alleged that claim was false because the bar actually had 14% fat when you included the bar’s chocolate coating. The Isaly Klondike Co., 116 F.T.C. 74 (1993) (consent order). Similarly, an ad for Carnation Liquid Coffeemate showed the product being poured over fruit and cereal while claiming it was low in fat. The FTC challenged that claim because, while the express low fat claim was true for the one tablespoon serving appropriate for use in coffee, it was not true for the half cup consumers would use on cereal or fruit. Nestle Food Co., 115 F.T.C. 67 (1992) (consent order).
Policy Changes May Be Necessary To Foster Useful Claims
As the Commission fights false advertising, it must be careful not to inadvertently inhibit useful claims. The FTC may need to relax some policies that restrict claims that could be helpful to those seeking to control calories. For example, current food labeling rules have a 25% threshold for reduced-calorie claims and prohibit such claims for foods that are already low-calorie. But small incremental calorie reductions can become nutritionally significant in the aggregate, especially in the context of longer term dietary changes. Even very modest daily changes may have a substantial impact on weight over several weeks or months.
Food advertising can be a critical source of information allowing consumers to make better food choices.
Companies that falsely promise effortless and dramatic weight loss without diet or exercise face a real risk of government challenge; marketers that mislead consumers about the benefits of their foods, especially as it relates to obesity, will also be pursued. Continuing enforcement is a certainty.