Some of us (not naming names) began 2014 with self-driven promises to go to the gym instead of watching Bravo, to opt for that kale salad instead of the truffle oil risotto, and to start doing calf raises while brushing our teeth.  Small steps.

Meanwhile, the FTC got into the spirit of the season by holding a press conference called “Operation Failed Resolution” which gave tips to media, marketers and consumers alike for how to vet, advertise and evaluate products that promote weight loss and thinner bodies.

  • Note to Media: For the media, the FTC announced the launch of “Gut Check: A Reference Guide for Media on Spotting False Weight-Loss Claims.”  Gut Check refreshes slightly but largely mirrors the FTC’s 2003 Red Flag Guides.  It describes seven weight-loss claims that *cannot* be true and should prompt a second look.  If one of these seven claims is involved in a marketers’ advertising, the FTC encourages media to think twice before running any of the product claims. They are:
  1. The product causes weight loss of two pounds or more a week for a month or more without dieting or exercise;
  2. It causes substantial weight loss no matter what or how much the consumer eats;
  3. It causes permanent weight loss even after the consumer stops using product;
  4. It blocks the absorption of fat or calories to enable consumers to lose substantial weight;
  5. It safely enables consumers to lose more than three pounds per week for more than four weeks;
  6. It causes substantial weight loss for all users; and
  7. It causes substantial weight loss by wearing a product on the body or rubbing it into the skin.

To reinforce its message, the FTC also announced it had sent letters to 75 media outlets.  Also during the conference, a question was posed as to whether the FTC has authority under Section 5 to hold media outlets responsible for these kinds of weight loss claims – to which Mary Engle gave a resounding “yes!”  Jessica Rich added that the new guides are not meant as a “shot across the bow” to media, but the Commission certainly has the authority to pursue it.

  • Note to Marketers: The FTC emphasized the age-old principle that you need to make sure you have sound science to support what you say about your products.  As a general matter, if you are advertising a weight-loss product that operates by any means other than the accepted diet and exercise plan, “sound science” means two independent, adequate and well-controlled human clinical studies.  In the enforcement actions announced by the FTC, the complaints highlighted issues with studies such as the lack of data available for independent analysis or the fact that the studies were not blinded or placebo-controlled.  Also be sure that your experts base their endorsements on testing of the product that’s at least as extensive as what other experts in the field would normally conduct.  Finally, stay away from the “gut check” claims above or you might have issues with your media publishers in addition to those you’ll have with the government.
  • Note to Consumers: Finally, the FTC announced the release of new information for consumers on weight loss, including a teaser website about an eggplant extract pill designed to reach people who are surfing online for weight-loss products.  [Some of us might wonder (not naming names) if we would have found this site on our own during one late night involving risotto and the Bravo network.]  FatFoe makes a range of prohibited weight-loss claims but when consumers try to place an order, they learn the ad is a warning from the FTC about diet rip-off programs.

So even though 88% of our New Year’s resolutions are said to end in failure, the FTC gave some guidance for everyone to stay on track.