Listen up, all you fans of consumer testimonials! The FTC has just confirmed that a “results will vary”-style disclaimer isn’t likely to disclaim anything in the eyes of a consumer. Instead, marketers must consider the “net impression” their testimonials convey.
A subsidiary of diet plan marketer Medifast Inc. agreed to a $3.7 million settlement with the FTC stemming from charges that it violated a previous settlement order entered into in 1992.
In order to make sense of the settlement, we’ll need to rewind briefly to 1992. You might recall that at the time, Sir-Mix-a-Lot had a number one single extolling the virtues of a baby [who] got back. Meanwhile, Medifast (apparently not sharing Sir-Mix-a-Lot’s views on the human form) encouraged consumers to lose weight by participating in their low-calorie meal substitute program. The FTC alleged that Medifast’ s weight-loss claims were unsupported, so the 1992 settlement order barred Medifast from making any future unsupported claims about a user’s success in achieving or maintaining weight loss.
But according to the FTC, since about 2009, Medifast started running more unsupported weight loss ads that touted its low-calorie meal substitutes including the “5 and 1” plan. The company allegedly used radio, television, Internet, and print advertisements to tell consumers that by using Medifast programs and products, they could lose two to five pounds each week. Medifast mostly made these representations through the use of consumer testimonials.
One ad stated: “Why Medifast? Three great reasons. Cynthia Lujan lost 73 lbs on Medifast! Cindy Daniels lost 43 lbs on Medifast! Jennifer Lilley lost 70 lbs on Medifast! You can lose up to 2 to 5 pounds per week on Medifast.”
The complaint alleged that Medifast advertised that these consumer endorsers’ experiences were typical and all consumers would lose more than 30 pounds by using the product. Though Medifast used a disclaimer at the bottom of the ad that stated “Results will vary” the FTC said this wasn’t sufficient to counteract the “net impression” consumers received from the ad, noting that the disclaimer appeared in small type or was spoken quickly. (and because it seems we can almost never blog without mentioning "up to" it's worth noting that the FTC also interpreted the "up to 2-5 pounds per week claims as one that consumers would be likely to achieve ((though they did not include the "all or almost all" language used in the recent windows consent orders.))
The Medifast settlement is also important for another reason: it details the sort of rigorous clinical test the FTC wants to see for low calorie meal replacement weight loss claims. Under the settlement order, Medifast will need at least one “adequate and well-controlled human clinical study of the low-calorie meal replacement program” or a study that follows the detailed protocol laid out in the settlement in order to support future weight loss claims.
The protocol listed in the settlement is meticulous. For example, the weight loss study must identify primary and secondary outcome measurements and if a subject drops out of the program after two weeks (for a reason other than a change of residence or medical reason) the subject's last recorded weight must be used as his or her ending weight for the study’s data analysis.
The FTC also specified duration requirements for weight-loss studies: if the advertiser’s representation will relate to weight loss, the study must cover a period of at least 16 weeks; if the advertiser’s representation will relate to weight maintenance, the study must cover a period of at least 52 weeks.
So what does this mean for all advertisers and marketers? First of all, nobody should place much faith on a “results will vary” disclaimer, particularly one that is not very large and prominent– the FTC’s results on that method will assuredly not likely vary in future enforcement actions. Secondly, the FTC appears to have laid down a marker for substantiation of weight loss claims for low calorie meal replacement products. With regard to other types of weight loss products the FTC in the past has sometimes suggested that two well-controlled studies might be required. Thus it may be too soon to tell whether the one clinical study requirement and the study duration requirements in the order are intended to apply to other weight loss products as well.