Marketing “wearable caffeine” can get you in trouble with FTC, the regulatory watchdog over advertising

The Federal Trade Commission (FTC) has proposed to settle charges with two marketing companies promoting “shapewear garments” with “slimming claims for caffeine-infused products.” FTC vigorously enforces federal laws against deceptive advertising where it finds that claims for health care products are false and unsubstantiated by scientific evidence.

In this case, the proposed orders prohibited further claims and required more than $1.5 million in consumer refunded:

“Caffeine-infused shapewear is the latest ‘weight-loss’ brew concocted by marketers,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection. “If someone says you can lose weight by wearing the clothes they are selling, steer clear. The best approach is tried and true: diet and exercise.”

The FTC’s complaint against Norm Thompson Outfitters alleges the company deceptively advertised, marketed, and sold women’s undergarments infused with microencapsulated caffeine, retinol, and other ingredients, claiming the “shapewear” would slim and reshape the wearer’s body and reduce cellulite. The products, made with Lytess brand fabrics, were sold via mail order and on the company’s Norm Thompson Outfitters, Sahalie, Body Solutions, and Body*Belle websites.

Specifically, the FTC alleges that the company made claims that wearing its shapewear would eliminate or substantially reduce cellulite; reduce the wearer’s hip measurements by up to two inches and their thigh measurements by one inch; and reduce thigh and hip measurements “without any effort.” The complaint alleges that these claims are not true or substantiated by scientific evidence, and therefore violate the FTC Act.

The complaint against Wacoal America contains similar allegations. It charges that the company’s iPants supposedly slimmed the body and reduced cellulite. Specifically, the company made false and unsubstantiated claims that wearing iPants would: substantially reduce cellulite; cause a substantial reduction in the wearer’s thigh measurements; and destroy fat cells, resulting in substantial slimming. The complaint alleges that these claims are not true or substantiated by scientific evidence, and therefore also violate the FTC Act…

Consumers should carefully evaluate advertising claims for weight-loss products. For more information, see the FTC’s guidance for consumers of products and services advertised for Weight Loss & Fitness.

Weight loss products continue to be subject to strong regulatory enforcement scrutiny. Companies marketing dietary supplements or any other health and wellness products should have all their marketing materials, including product labels and website, reviewed for FTC compliance.

Recent FTC enforcement actions for false and misleading advertising have included:

  • FTC enforcement action against marketers of acai products
  • FTC enforcement action against marketers of diet pills and other weight loss products
  • FTC charges against “marketers for tricking people — especially Spanish speakers — who were looking for affordable health insurance into buying worthless medical discount cards”

FTC notes:

More and more, scam artists are exploiting people’s trust in well-known news organizations by creating fake news sites that use the logos of legitimate news organizations or soundalike names and web addresses. The sites are a front to get you to sign up for weight loss products, work-at-home opportunities, anti-aging products, or debt reduction plans.

One way they do this is to describe a so-called “investigation” into the effectiveness of popular acai berry dietary supplements — supplements from acai palm trees native to Central and South America — to help people lose weight. But the claims the sites make just aren’t true.

FTC also warns against “free trial” offers for acai berry, “colon cleanse” products, and other “phony offers.”

As to weight loss, FTC asks: “Wouldn’t it be nice if you could lose weight simply by taking a pill, wearing a patch, or rubbing in a cream? Unfortunately, claims that you can lose weight without changing your habits just aren’t true. Doctors, dieticians, and other experts agree that the best way to lose weight is to eat fewer calories and be more active. That’s true even for people taking FDA-approved pills to help them lose weight.”

Consult an attorney experienced in FTC and advertising law whenever marketing a weight loss or other healthcare or health and wellness product.

Michael H Cohen Healthcare & FDA Lawyers

Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.

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