A free trial of a weight loss pill is the best of both worlds, right?  Not according to the FTC, which recently brought its first Restore Online Shoppers’ Confidence Act (ROSCA) case against a group of marketers who advertised exactly that.

Weight loss substantiation is old territory for the Commission.  ROSCA, however, is not.  The FTC’s first ROSCA case, filed in Nevada district court, alleges that health companies made unsubstantiated claims that their dietary supplements would lead to weight loss, muscle building, virility, and improved skin.  More significantly, however, are the allegations surrounding the marketers’ “free trial” and “buy-one-get-one free” offers.  According to the FTC, the companies collected customers’ debit and credit card information in order to enroll customers in a negative option (subscription) program.  While there is certainly nothing wrong with subscription programs on their face, the FTC alleges that the companies here inadequately disclosed the nature of the program – they never clearly told customers their accounts would be charged each month.  ROSCA prohibits marketers from charging customers in an Internet transaction unless the marketer has clearly disclosed all of the material terms of the transaction and obtained customers’ express informed consent. In this case, according to the FTC, the marketers did not provide the required disclosures for a negative-option program before accepting payment; failed to disclose material facts about their refund and cancellation policy, among other facts; and didn’t give customers a simple, effective way to stop the automatic charges.


Continue Reading FTC Says Companies Have a Fat Chance of Getting Away With Deceptive Online Marketing in First ROSCA Case

We are close to live blogging from the annual NAD Advertising Law Conference and for those who could not join us, we wanted to share highlights from its opening — keynote speaker FTC Chairwoman Edith Ramirez.  The FTC typically uses this conference to lay out its enforcement priorities relevant to national advertisers and gives us all a peek into the crystal ball for the coming year.  So here’s what we heard.
Continue Reading Live (almost) from New York, It’s the NAD Annual Conference

A Journey into the Land of Dr. OzOn June 17, 2014, Senators, staff, and the public were off to see Dr. Oz testify in Washington, and in the eyes of some Senators, this Oz may encourage as many deceptive tricks as his movie counterpart.  Senator Claire McCaskill, Chairman of the Senate Commerce, Science, and Transportation Subcommittee on Consumer Protection, Product Safety, and Insurance, opened a hearing titled “Protecting Consumers from False and Deceptive Advertising of Weight Loss Products”  with an attack on false weight loss advertisements, stating: “We’ve all heard and seen the ads, promising quick and substantial weight loss if only you take this pill, drink this shake, use this device, or apply this cream, all without adjusting diet or increasing physical activity.  It seems too good to be true—and of course it is.”

The hearing brought together individuals from the private sector and the government to discuss the marketing of deceptive weight loss products, their effect on consumers, and what actions can be taken to better protect consumers.  Among those testifying were representatives from the FTC, the Advertising Self-Regulatory Body, the Council for Responsible Nutrition, TrustInAds.org, the Natural Products Association, and of course, the star host of the Dr. Oz Show, Dr. Mehmet Oz.


Continue Reading A Journey into the Land of Dr. Oz: Congress Wants to Shed Weight Loss Scams

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;
    Continue Reading FTC Holds Conference on Faux Fat Foes

The FTC has become increasingly aggressive in holding advertisers responsible for advertising claims made by their affiliate networks and marketers.  Indeed, just this week the FTC announced another settlement in a case that was part of the same “sweep” as the case discussed here. In July of 2012, the FTC amended its April 2011 complaint

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

Social media sites have been a boon for brand marketers over the past several years, and one of the latest big trends in social media – Pinterest.com – has generated buzz from a growing number of marketers as well as consumers. Pinterest users can “pin” images, including those from other websites, to the user’s “pinboard”.