Three things the Federal Trade Commission (FTC) really doesn’t like: deceptive claims about dietary supplements; deceptive certification or seal programs; and websites that look like editorial content, but are actually advertisements. Put them all together and what do you get? If you guessed a lawsuit by the FTC, you are correct!
On June 16, the FTC sued SmartClick Media and its principal, Robert Vozkecky, alleging that the company’s “Doctor Trusted” seal and advertorial websites were deceptive. Both were used to market dietary supplements.
According to the complaint, defendants marketed a “Doctor Trusted” seal that frequently used a photo of a doctor with a stethoscope in a lab coat. If you clicked on the seal, a pop-up window appeared stating that the website had been carefully reviewed by a doctor who had reviewed the claims on the site and concluded the site to be trustworthy, based on reasonable science, with ethical pricing and billing policies. Defendants marketed and sold the seal program to 800 sellers of dietary supplements, including at least two companies that were sued by and settled with the FTC.
The FTC alleged that the review done by the doctors paid by the company was at best cursory and did not involve the exercise of any medical judgment regarding the product claims made on the websites that used the seal.
The FTC challenged this conduct as deceptive under the FTC Act and also as providing the means and instrumentalities to others to deceive consumers.
SmartClick also ran several lifestyle blogs that purported to provide unbiased advice and information on products, health issues, and other subjects and allowed consumers to review products. Many of the blogs featured male sexual enhancement supplements. In reality, according to the FTC, the blogs’ content consisted of paid promotions and placements. The court ruled that inconspicuous links at the bottom of the page were flaccid in disclosing the true nature of the websites. No surprise here as the FTC has consistently held that links at the bottom of pages are insufficient to disclose this type of important information.
The FTC’s focus on dietary supplement advertising shows no signs of relenting. Marketers who are considering using seals or advertorials to sell those products might want to proceed carefully so that they don’t provide the FTC with the ingredients for a lawsuit.