Waving the Red Flag: FTC Regulation of Deceptive Weight-Loss Advertising 1951–2009

Abstract

This article documents the historical role of the Federal Trade Commission (FTC) in regulating deceptive weight-loss advertising, which the commission began to prioritize in the 1990s after a dramatic rise in complaints. It also includes the results of a content analysis of more than 150 FTC complaints filed between 1951 and 2009, which were used to analyze trends in advertising content, liability for deceptive practices, and outcomes. Regulatory efforts may not have curbed the use of bogus weight-loss claims, which have only increased over time. The FTC has made attempts to apply broad liability, but advertisers and corporate leaders continue to be named most frequently over other respondents, including advertising agencies, media outlets, and product endorsers. Although the number of complaints that result in financial penalties is increasing, the FTC lacks systematic and specific policies to adequately deter advertisers and address what continues to be a growing problem.

Notes

¹ Quotes are from actual advertisements used in 2001.

² For example, see Guides Concerning the Use of Endorsements and Testimonials in Advertising. Fed. Reg. 74, 53,124 (October 15, 2009).

³ Sample variations of each claim are included in the publication.

⁴ Also of note is the fact that a reduction in Red Flag claims does not signal an overall reduction of deceptive advertising practices.

⁵ This opinion was outlined in the Ad Nauseam campaign initiated by The Partnership for Healthy Weight Management in May 2000 to promote the media’s responsibility for screening weight-loss claims. The partnership recognized specific examples of false weight-loss claims published by the media.

⁶ Cases cited: Currier, FTC 002-3211; FTC v. SlimAmerica, 77 F. Supp. 2d (S.D. Fla. 1999); James L. McElhaney, M.D., 116 F.T.C. 1137 (1993); Numex Corporation, 116 F.T.C. 1078 (1993); Natural Innovations, 123 F.T.C. 698 (1997).

⁷ Example available in Physicians Weight Loss Centers of America, Inc., 116 F.T.C. 1484 (1993).

⁸ Example available in Amerifit, Inc.,123 F.T.C. 1454 (1997).

⁹ In addition, Lellis (2005) conducted a pilot study in 2005 using a convenience sample of 29 deceptive weight-loss advertising cases. This pilot led to the creation of a new coding protocol in order to accurately code and categorize the nature of the parties listed as responsible for deceptive or fraudulent weight-loss advertising, the types of products mentioned in the complaints, remedies or penalties assessed by the FTC or the courts, and also whether any Red Flag claims were called into question.

¹⁰ This list was titled “Advertising Cases Involving Weight-loss Products and Services.”

¹¹ Reliability for the 46 variables examined ranged from 63 to 100%, with the exception one variable (49%). An independent coder was retrained on the coding protocol for variables that had reliability scores below 79%; this coder reviewed and coded all 167 complaints.

¹² Dietary supplements were often classified as “foods” or “drugs” in the complaints.

¹³ An exception is FTC v. J. Walter Thompson USA, Inc., No. WL 17012679 (D. NY Oct. 20, 1995). J. Walter Thompson—an advertising agency that created ads for Jenny Craig—is the sole party listed in the complaint.