Weight Loss News

Bogus weight-loss claims are illegal, but proliferating

Armond Budish
The Plain Dealer

The holidays are behind us, and the weight from all those food-laden celebrations is probably behind us, too - not to mention on our stomachs and hips. Wouldn't it be nice if there was an easy way to take off the pounds?

Perhaps you remember hearing your favorite disc jockey on the radio announce that he ate like a pig, yet lost weight while he slept at night by drinking Body Solutions. You might have thought: If a trusted DJ tells you he lost weight and the radio station agreed to run the ad, it must be true, right?

A report issued by the Federal Trade Commission in September found that bogus weight-loss advertisements promising quick, easy weight reduction have become "pervasive" in the media.

Over the last decade, the FTC has undertaken more law-enforcement cases involving weight-loss products than in the previous 70 years. Yet the products keep rolling in, with the claims becoming more outlandish all the time.

Let's look at the laws that are designed to protect us from deceptive marketing practices.

Is it legal to market weight-loss products by deception?

Absolutely not. The Federal Trade Commission Act prohibits "unfair or deceptive acts or practices." Advertising is deceptive if it contains a representation or omission that is likely to mislead consumers acting reasonably under the circumstances. The representation or omission must be material, which means it is likely to affect consumers' conduct or decisions with respect to the particular product or service. Claims about a product's performance, features, safety, price or effectiveness typically are material.

In addition, before making claims in an ad, the law requires substantiation of the claims. For example, the law prohibits an ad with a person stating that she lost 90 pounds by taking a product unless supporting research shows that a user actually could lose that much weight.

Personal statements, anecdotal reports and unscientific studies are not sufficient. Advertisers generally must be able to support claims by tests, studies or other evidence that has been conducted and evaluated according to generally accepted scientific standards.

Do miracle weight-loss claims meet these tests?

No. Take the claims about Body Solutions. Ads stating that you can eat whatever you want and lose weight while you sleep are "patently false," according to the Federal Trade Commis sion. The FTC has sued and recently reached an agreement with Mark Nutritionals Inc. to stop running its deceptive ads about Body Solutions and to drop the term "weight loss" from the name of its product.

Yet Body Solutions is just one of a proliferating number of products and services making bogus claims about their weight-loss capabilities. Despite the FTC's enforcement efforts, the problem continues to grow. Why? Because many Americans want to believe there's an easy way to take off weight. Companies know it takes a long time for the FTC to respond, and, until the agency weighs in with a complaint, a company can grab its share of the $30 billion we spend each year to try to lose weight.

Do the media face any potential liability?

Yes. The laws prohibiting unsubstantiated advertising apply not just to the company marketing the product, but also to anyone who assists the company in the creation of deceptive advertising or facilitates dissemination of that deception.

This opens the door to liability against the radio stations, magazines and other media that run obviously bogus ads without any attempt to check the accuracy of the message. Even celebrity endorsers can face legal action.

The FTC has preferred to try to work with rather than against the media, to get them to voluntarily accept more responsibility. In its September report, the FTC urged the media to voluntarily "reject the creation and acceptance of advertisements that contain false or misleading weight-loss claims."

Of course, there is no substitute for consumers to use common sense before buying into claims for weight-loss products that seem too good to be true. The public maintains a healthy skepticism about statements by politicians. But when it comes to our own body fat, we seem more than willing to put aside our doubts and readily swallow those fatuous miracle stories about losing weight without dieting and exercise.

Budish is a partner in the law firm of Budish & Solomon in Pepper Pike.

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