FTC Weight Loss Claims – Legal Gut Check

FTC Weight Loss Claims – Legal Gut Check

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Weight loss products are big business, yet FTC, the Federal Trade Commission, comes down hard on false and misleading weight loss claims.

In today’s video, we’ll talk about how the FTC handles weight loss claims—and we’re not referring to “love” handles, either.  We’ll also give you some legal risk mitigation ideas.

I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group.  Since 1999, our law firm has counseled hundreds of healthcare industry clients every year on healthcare and FDA legal issues.

Let me give you “the skinny” here … pun intended.

FTC enforces federal law against false advertising.  This means that FTC looks carefully at the marketing claims your company makes for each and every one of your healthcare products.

Of all the healthcare products in the universe, FTC scrutinizes weight loss products the most “heavily” (okay, that’s the last pun for now).  Why?  FTC probably realizes that almost everyone wants to lose weight, and, that consumers are particularly vulnerable to promises by weight loss products.

FTC lays out its warnings on its web page entitled, Gut Check: A Reference Guide for Media on Spotting False Weight Loss Claims.

Here’s what FTC says: “Misleading ads for weight loss products target consumers desperate for results. But let’s face it: When it comes to dieting, there are no easy answers.  If a product promises weight loss without effort and sacrifice, it’s bogus.”

That is the first giveaway: if it sounds too easy, there’s probably false advertising. Watch out for FTC compliance issues.

In fact, FTC has come up with 7 kinds of claims where you should “think twice before running” those ads.  Here they are—the claims say that the product:

  1. Causes weight loss of two pounds or more a week for a month or more without dieting or exercise;
  2. Causes substantial weight loss no matter what or how much the consumer eats;
  3. Causes permanent weight loss even after the consumer stops using product;
  4. Blocks the absorption of fat or calories to enable consumers to lose substantial weight;
  5. Safely enables consumers to lose more than three pounds per week for more than four weeks;
  6. Causes substantial weight loss for all users; or
  7. Causes substantial weight loss by wearing a product on the body or rubbing it into the skin.

FTC then goes into each of these 7 types of claims and explains why FTC believes these are false and misleading.

Let’s just take number one: “causes weight loss of two pounds or more a week for a month or more without dieting or exercise.”  According to FTC, “Meaningful weight loss requires taking in fewer calories than you use. It’s that simple.”

What’s really interesting are the types of ads that FDA showcases as false and misleading because they all into one or more of these categories.

For example:

“I lost 30 pounds in 30 days – and still ate all my favorite foods.”

“Lose up to 2 pounds a day without diet or exercise.”

“Take it off and keep it off. Kiss dieting goodbye forever.”

Do any of these sounds familiar? What about this one?

“Block fat before your body absorbs it. The pounds and inches will melt away.”

We’ve had a lot of clients come to us with these kinds of ads.  Fat-blocking is also very popular.  Go away, fat, you’re blocked!

What about this one: “Jane dropped 4 dress sizes in 30 days!”

Not so fast, says FTC.

If you have a weight loss product, there are two things we recommend that you do.  First, take a look at all the examples that FTC gives on its Gut Check page.  And see whether any part of your ad contains similar language or promises.

You might have an ad that sounds innocuous in part, but then tucks in one or more of these “gut check” promises.

Second, have your ad reviewed by legal counsel.  Your “gut” should tell that the ad promises too much and is too good to be true; at the same time, an ad or marketing campaign can generate millions of dollars in revenue.  A good healthcare and FDA lawyer not only emphasizes compliance, but also stays attuned to the brand promise and the marketing magic behind a campaign.

It’s a subtle dance. As the saying goes, “all work and no play makes Jack a dull boy.”  In the same way, compliance is not a string of endless “NO’s” or zeros.  Nor is it a string of endless YES’s.  Rather, it takes experience, skill, and judgment to help a client make decisions that will keep the company flush with customers, while wearing the compliance garlic to ward off the enforcement vampire.

One client came to us only AFTER the FTC had already imposed a multi, multi, multimillion judgment for false and misleading claims.  The legal fees for an ounce of prevention are a fraction of the cost of fighting against millions of dollars of exposure, and, once FTC has the claims in its sights, it’s really too late.

To quote the Amazon Prime sci-fi flick, The Expanse: at that point, you’ve been target-locked. No exit.  Don’t roll the dice, get legal advice— I would add before the regulators take out a slice.

If this sounds like a lot to absorb, we encourage you to book a Legal Strategy Session with us.  That gives us time to assess your business model or proposed arrangements, or propose marketing and advertising, and provide valuable legal insight as well as recommendations for risk mitigation.

Thanks for watching. Here’s to the success of your healthcare venture, we look forward to speaking with you soon.

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