FTC, NAD Fight False Fat Claims

Date: Jun 17, 2004

The U.S. Federal Trade Commission (FTC) has set its sights on an unfortunate side effect of the increase in adult and childhood obesity: fraudulent or deceptive claims made by dietary supplements manufacturers about weight loss. In recent testimony before Congress, the Director of the FTC's Bureau of Consumer Protection, J. Howard Beales III, acknowledged that while some dietary supplements offer real benefit to consumers, claims about the safety and efficacy of any product must be substantiated by competent and reliable scientific evidence before the claims are made. The need for substantiation is especially important in advertising products intended for or targeted to children.

The FTC has initiated about 100 false advertising cases targeting dietary supplements manufacturers, with about 13 cases addressing children's products. The FTC brought three of those cases against dietary supplements manufacturers in 2004. The claims ranged from promises to prevent colds in children, to claims for treatment of attention deficit/hyperactivity disorder (AD/HD), to claims to help children lose weight.

Many dietary supplements cases initiated by the FTC, apart from lack of substantiation or downright deception in the claims, reflect safety concerns about the products. The FTC has challenge advertising claims, including broad safety claims, made about supplements containing steroids, ephedra, comfrey and other ingredients linked to adverse health effects. The FTC's current focus on weight loss claims for dietary supplements reflects the FTC's understanding that consumers, including children, could be misled by ads promising easy and fast weight loss without diet and exercise, and is part of a broader strategy by the FTC to focus on weight loss scams. Indeed, the Commission almost two years ago sought assistance from the media in screening out obviously false weight loss ads before they are aired or published. The FTC has characterized the media's response as "encouraging."

The FTC is not alone in this effort to combat false and misleading claims about dietary supplements. The National Advertising Division (NAD) and the Children's Advertising Review Unit (CARU), the bodies responsible for advertising self-regulation in the U.S., have also been active in evaluating claims for dietary supplements. In fact, CARU's self-regulatory guidelines governing advertising to children have long prohibited advertising of medicines, drugs and supplemental vitamins directly to children.

Dietary supplements manufacturers must remain mindful of the need to substantiate claims about weight loss, including claims that a product or ingredient "blocks" or inhibits metabolism of fat or carbohydrates. Ideally, substantiating studies should examine the products themselves, although we know that often this is not feasible and that studies of ingredients must be used. In this regard, however, advertisers must examine the relationship between the formula or dosage in their products relative to cited studies evaluating health effects and benefits of ingredients to make sure that advertising claims for dietary supplement products relate to the available scientific evidence on the ingredients, and are appropriately qualified to reflect the science.

Truthful, non-misleading and appropriately qualified claims about dietary supplements provide valuable information to the public. Everyone in the dietary supplements industry- indeed, everyone in the advertising industry - has a stake in assuring that honest marketers compete on a level playing field by playing by longstanding rules governing advertising.

For more information on advertising, including advertising to children, and obesity, please contact Sheila A. Millar at (202) 434-4143, or via e-mail at millar@khlaw.com. Ms. Millar is a member of the Children's Advertising Review Unit Advisory Board.