Misleading advertising of health products triggers FTC Complaint and Penalties

Dietary supplement manufacturers, medical device manufacturers and distributors, and makers of cosmetics should have legal review of their website advertising and marketing claims for Federal Trade Commission (FTC) issues.In one of the latest FTC enforcement actions for false and deceptive advertising against a wellness or health product, the FTC slammed a company for making false claims regarding a product that supposedly help build abs of steel:

The Federal Trade Commission (FTC) announced last week that it reached a settlement with the marketers of an exercise device named the “Ab Circle Pro” that was sold online and through television infomercials. Like many “revolutionary” pieces of exercise equipment sold through infomercials, the Ab Circle Pro was marketed as “the most innovative piece of exercise equipment ever” because it enabled consumers to achieve incredible weight loss results with very little time and effort for the low price of “$14.95, plus shipping and handling.” The advertisements compared a three minute workout with the Ab Circle Pro to “30 minutes of abs and cardio” and claimed that “just three minutes a day” of exercise using the device was the equivalent of “100 Sit Ups.” The advertisements also “guaranteed” results with a “30-day-risk free trial” and assured consumers that they would either “lose ten pounds in just two weeks or [receive their] money back.” As usual, the infomercial featured numerous testimonials from users who had lost weight using the Ab Circle Pro, and the host of the infomercial was an “incredible fitness celebrity” and “busy mom,” Jennifer Nicole Lee, who claimed that she “lost over 80 pounds” using the “miracle breakthrough” device.

The FTC investigated the claims made in the Ab Circle Pro advertisements and concluded that the device was not the “miracle breakthrough” that was advertised because “just three minutes a day” of exercise using the device was not the equivalent of “30 minutes of abs and cardio” or “100 Sit Ups.” The FTC also concluded that the claims about “rapid and substantial weight loss” were deceptive because the advertisements failed to appropriately disclose that the advertised weight loss could only be achieved through “a reduced calorie diet and engaging in cardiovascular exercise, in addition to using the Ab Circle Pro.” Moreover, the FTC discovered that “$14.95, plus shipping and handling,” actually meant a $235 to $285 charge to most consumers (including delivery fees). Finally, the FTC found that video testimonials from the host and alleged users of the Ab Circle Pro were misleading because they suggested that use of the Ab Circle Pro caused weight loss that was actually achieved with cardiovascular exercise and dieting. Accordingly, the FTC filed a complaint against the owners of the rights to the Ab Circle Pro, the host of the infomercial, the producers of the infomercial and the distributors of the Ab Circle Pro. A day after the complaint was filed, proposed settlements with each defendant were filed.

The FTC and FDA have overlapping jurisdiction over healthcare products such as dietary supplements, cosmetics, medical devices, and consumer products aimed at the fitness market. The FTC regulates advertising and, under the the Federal Trade Commission Act, takes enforcement action against companies that make false and misleading claims.

Those claims in the consumer products arena can involve false claims of results–as in this case; or something as seemingly innocuous as stating that the product has an equivalency to a certain fitness regimen; or mis-stating the amount of effort required to achieve a result. Like the abs fitness manufacturer in this case, dietary supplements manufacturers also run into trouble where they make weight loss claims – for example, claims that a certain amount of weight can be lost irrespective of diet or exercise, or based solely on HCG or some other substance.

Companies sometimes hire legal counsel for FDA advice but forget that FTC concerns are equally important. As well, state consumer advertising and unfair competition laws can be deployed against false claims.

When introducing a new consumer product to market in the health, wellness and fitness arena, or bringing a dietary supplement, medical device, or cosmetic to market, be sure to contact an experienced healthcare legal team. The Cohen Healthcare Law Group has experience in FDA and FTC law and regulatory issues, including: