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Rock Street, San Francisco

Margaret Ann Cook
11/21/2018
MC 3080 section 2
Critical Thinking Paper
The Federal Trade Commission, FTC, was established in 1914 to promote fair competition and protect consumers, the primary function of the FTC is to prevent problematic advertising and to correct false or deceptive advertisements. Regulating advertising and requiring advertisers to substantiate their claims is one of the measures used to accomplish their goal. The Federal Trade Commission has a long-standing history with the problematic advertisement of weight loss medication, in 1942 the commission won its first case against a company selling a miracle diet pill using false claims in advertisements. More recently, the FTC has prioritized its interest in the regulation of advertising of weight loss medications. Their efforts include both preventative and corrective measures, relying more heavily on litigation and punitive measures to get these companies and their advertisers listening.
This objective is of such high importance because it goes much further than keeping a fair commercial climate and preventing fraud against costumers, it includes a duty to protect the public’s health. The FTC applies a heightened standard for the substantiation of health claims, requiring competent and reliable scientific evidence. The FTC can only bring action against companies publishing such false and harmful advertisements after they have been published, because prior restraint is largely considered unconstitutional. Because of this it is primarily up to media outlets to make the right decision based on the guidance the FTC gives in their preventative measures.
One such preventative measure, “Gut Check” is a guide that identifies 7 common red flags to help you spot a false weight loss claim and encourages you to not publish
advertisements with false weight loss or health claims . These red flags include: “causes weight loss of two pounds or more a week for a month or more without dieting or exercise; causes substantial weight loss no matter what or how much the consumer eats; causes permanent weight loss even after the consumer stops using product; blocks the absorption of fat or calories to enable consumers to lose substantial weight; safely enables consumers to lose more than three pounds per week for more than four weeks; causes substantial weight loss for all users; or causes substantial weight loss by wearing a product on the body or rubbing it into the skin” (Mack, 2004). These should not be able to be dismissed as puffery as science has proven these 7 claims impossible. Media Education campaigns like this one place a lot of responsibility on the media to help solve this problem. The FTC sends out these guides along with warning letters to those publishing problematic ads and outlets they wish to educate on the matter. This guidance provided by the FTC is however merely a suggestion to media outlets not to publish such content, however that does not stop them from doing so. Which is why the FTC relies so heavily on punitive action to defer companies from taking part in such business.
Over the years, the Federal Trade Commission has filed over 90 claims against defendants using bogus weight loss claims in their advertisements. One of the more notable cases was brought against Hi- Tech Pharmaceuticals and several other defendants, in 2004, the legal battle would be drawn out for 13 years. In 2008 the federal district court ruled in favor of the FTC, who claimed Hi-Tech made deceptive claims about the efficacy and safety of several weight-loss products. The defendants were ordered to pay $15.8 million to their consumers, and were given an injunction that prohibited claiming that their products cause “rapid or substantial weight- or fat loss, or affect body fat, appetite, or metabolism” unless the claims are true and supported by scientific evidence (Long, 2017.) In 2011 the commission once again filed sanctions against Hi-Tech Pharmacuticals and other defendants, this time for violating the 2008 injunction order. The defendants had continued to make weight loss and health claims without competent and reliable scientific evidence. The issue went on appeal, Hi-Tech argued they had evidence to support their claims, but ultimately the court ruled their evidence insufficient. They were ordered to pay $40 million in sanctions for making false claims without reliable evidence and for neglecting to print required warning labels for some harmful ingredients (Long, 2017.)
To some this seems like a big win for the Federal Trade Commission’s ongoing battle with the diet industry and while it is an impressive step in the right direction, these punitive actions are frequently ignored. In 2014 litigation was brought against, Sensa Products, HCG Diet Direct and LeanSpa for deceptively marketing weight loss products, including medication, lotions, patches, and drops (Wyatt, 2014.)This was part of what the FTC called “Operation failed resolution,” which seemed nearly identical to “Operation big fat lie” launched in 2004, which shared similarities with “operation waistline” launched by the commission in 1997. Despite the Federal Trade Commission’s efforts, research showed that in 2001 more than half of weight loss ads still contained one or more deceptive claims and the prevalence of these ads had more than doubled, according to a 2002 report published by the FTC (Cleland, 2002.) The FTC’s efforts have resulted in little success. The Federal Trade Commission continues to problem solve this fraudulent marketing of weight loss the same way over and over when more action needs to be taken- this pattern illuminates the need for a change.
When legal action is brought against those who falsely claim weight loss miracles, the common defense is claiming the ads are not deceptive but instead only amount to puffery. Puffery is defined as claims so outrageous that a reasonable consumer would not take the claim literally. Another defense concerns the 1st amendment. Under Central v Hudson commercial speech is protected by the first amendment unless the speech is false or unlawful.

The companies named in these claims suffer a monetary set back that is only temporary because the diet and weight loss industry is estimated to be worth over $30 billion. (Gross, 2007.) These fines are not protecting the consumer, but are punitive measures taken to discourage false marketing with limited efficacy. In this industry the stakes are higher than protecting a consumers wallet, use of these weight loss miracle products often result in serious health problems- one reason why stricter government regulations are necessary regarding the diet industry and the nature of their advertising. Recently the serious health problems caused by many of these products have come to light, and because of the interest of the health and safety of consumers, the commercial speech of the diet industry should have lower protection than other forms of commercial speech and more should be done to put a stop to such harmful and untruthful advertisements.
Even so, the FTC can only do so much to prevent that kind of speech, and because of this are relying on the media outlets to make ethical decisions when choosing ads to air. This can be problematic for the media because of the burden this places on both financials, the time sensitive manner of most media, and because this could be seen as a form of prior restraint, which is ruled non constitutional. Due to the medical nature of weight loss products and the diet industry, it would not be too far a reach to apply stricter regulations to these advertisements.
The two basic principles of FTC advertising law are that “the ad must be truthful and not misleading and before disseminating an ad, advertisers must have adequate substantiation for all objective product claims.” (Gross, 2007.) Under these rules it is fairly easy to spot false weight loss claims in advertisements and a relatively clear win in the court room. As I have shown, there is little action the FTC against false weight loss claims in advertisement until an advertisement is not only published but seen widely enough that a consumer complaint may reach the FTC. This problem has gotten, and will continue to get, worse as technology continues to change. Decades ago when these issues were limited to print ads in newspapers and magazines, rulings on commercial speech issues were far less complicated. The FTC seems to be outnumbered now by the inescapable false and harmful weight loss advertisements. Not only is the advertising on the internet making this more difficult; the emergence of social networking apps as a platform for product endorsement creates another layer of issues as it is incredibly hard to regulate. Technology is not the only element making this a tougher issue to navigate, the societal ideals that skinny is healthy and skinnier is better have become widespread in our westernized society. The majority of these drugs being deceptively advertised contain harmful empheds, which cause raised heart rates and greater risks of stroke or heart attacks, and laxatives, which when used incorrectly are dangerous to the digestive system. These drugs are often highly addictive as well, creating a high upon use and a dependence in the user. (Cleland, 2002.) The FTC wrote in their 2002 report that “Many of the products and programs most heavily advertised are at best unproven and at worst unsafe.”
These make good arguments for the supplements and products that are blatantly commercial products and thus commercial speech; but what about the diet products that seem more like pure speech than commercial speech, the books, websites, and subscriptions. It would be considerably harder to win a case concerning products like these as some may try and analyze them using strict scrutiny instead of using the Central Hudson test. In a case brought against the Atkins diet company by a man who suffered sever heart problems following the diet. Atkins’ lawyer argued that the Atkins book was not commercial speech and therefore the writer and publisher owed no duty of care to the reader, in this case the plaintiff needs to prove the book to be an integral part of the marketing of their brand and its products (Gross, 2007.) In this instance that could not be proven, an example of how these cases become more difficult to win depending on the type of product at question because the kind of product can change the kind of speech.
The Federal Trade Commission can only do so much to prevent that kind of speech without exercising unconstitutional regulations of prior restraint, and because of this are relying on the media outlets to make ethical decisions when choosing ads to air. This can be problematic for the media because of the burden this places on both financials, the time sensitive manner of most media, and because this could be seen as a form of prior restraint, which is ruled non constitutional. Due to the medical nature of weight loss products and the diet industry, it would not be too far a reach to apply stricter regulations to these advertisements.
References
Cleland, R. Gross, W. Koss, L. Daynard, M. Muoio, K. (2002) Weight Loss Advertising: An Analysis of Current Trends. Retrieved from
https://www.ftc.gov/reports/weight-loss-advertisingan-analysis-current-trendsFederal Trade Commission v National Urological Group, 104, CV, 3294 (2017)
Gross, J. (2007). The First Amendment and Diet Industry Advertising: How Puffery in Weight Loss Advertisements Has Gone Too Far, 20, Journal of Law and Health, 325
Long, J. (2017, Oct 23). FTC Obtains $40 Million in Sanctions in Weight Loss Advertising Battle with Beleaguered Supplement Manufacturer. Retrieved from
https://www.naturalproductsinsider.com/regulatory/ftc-obtains-40-million-sanctions-weight-loss-advertising-battle-beleaguered-supplementMack, B. (2004, Nov 9). FTC Launches Big Fat Lie Initiative Targeting Bogus Weight Loss Claims. Retrieved from
https://www.ftc.gov/news-events/press-releases/2004/11/ftc-launches-big-fat-lie-initiative-targeting-bogus-weight-lossWyatt, E. (2014, Jan 7). Weight Loss Companies Charged With Fraud. The New York Times. Retrieved from
https://www.nytimes.com/2014/01/08/business/us-charges-4-companies-with-deception-in-weight-loss-products.html

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