Public Workshop: Advertising of Weight Loss Products

AGENCY: Federal Trade Commission (FTC).

ACTION: Notice Announcing Public Workshop

SUMMARY: The FTC is planning to host a public workshop to explore alternate approaches to reducing deceptive claims in advertising for weight loss products.

DATE: The workshop will be held on November 19, 2002, from 9:00 a.m. to 5:00 p.m. at the Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. The event is open to the public and there is no fee for attendance. Pre-registration is not required.

REQUESTS TO PARTICIPATE AS A PANELIST: Written requests to participate as a panelist in the workshop must be filed by October 15, 2002. For further instructions, please see the "Requests to Participate as a Panelist in the Workshop" section below. Persons filing requests to participate as a panelist will be notified by October 29, 2002, if they have been selected.

WRITTEN COMMENTS: Whether or not selected to participate, persons may submit written comments on the topics to be discussed by the panelists. Such comments must be filed on or before October 29, 2002. For further instructions on submitting comments, please see the "Form and Availability of Comments" sections below. To read the Commission's policy on how it handles the information you may submit, please visit http://www.ftc.gov/ftc/privacy.htm

ADDRESSES: Written comments and requests to participate as a panelist in the workshop should be submitted to: Secretary, Federal Trade Commission, Room 159, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. In the alternative, they may be emailed to weightloss@ftc.gov.

FOR FURTHER INFORMATION CONTACT: Rona Kelner, (202) 326-2752, rkelner@ftc.gov, or Lesley Fair, (202) 326-3081, lfair@ftc.gov, Division of Advertising Practices, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. A detailed agenda and additional information on the workshop will be posted on the FTC's website, www.ftc.gov, by October 29, 2002.

SUPPLEMENTARY INFORMATION:

Background and Workshop Goals

Obesity is a significant public health problem. According to the Surgeon General's 2001 Call To Action To Prevent and Decrease Overweight and Obesity, an estimated 61% of American adults are overweight or obese.⁽¹⁾ The relationship between overweight and medical conditions such as cardiovascular disease, hypertension, certain cancers, type 2 diabetes, and osteoarthritis is well established and the toll of those diseases is substantial. Obesity-related illnesses account for approximately 300,000 deaths annually.⁽²⁾

In response, as many as 68 million U.S. adults are trying to lose weight.⁽³⁾ Many of them turn to commercial weight loss products.⁽⁴⁾ Consumers spend an estimated $33 billion annually on weight loss products, with the sale of dietary supplements accounting for a significant proportion of overall expenditures.⁽⁵⁾ According to a CDC study, between 1996 and 1998, an estimated 17.2 million Americans used one or more non-prescription weight loss products.⁽⁶⁾

Unfortunately, the use of false and misleading claims in ads for these products is common. The Commission has undertaken a vigorous enforcement program, including the filing of more than eighty cases since 1992. Recognizing that law enforcement alone has not proven sufficient to deter the promoters of bogus diet products, the FTC staff has fought weight loss fraud on other fronts. To enlist the voluntary cooperation of industry, the staff has worked closely with the Partnership for Healthy Weight Management, a coalition of representatives from science, academia, the health care profession, government, commercial enterprises, and public interest organizations whose mission is to promote sound guidance on strategies for achieving and maintaining a healthy weight. To encourage self-regulatory efforts by publishers and broadcasters, the staff has met with members of the media to discuss voluntary clearance standards that would weed out the most egregious weight loss claims before they are disseminated to consumers.

Despite these efforts, the proliferation of deceptive weight loss ads appears to be on the rise. On September 17, 2002, the FTC staff issued Weight-Loss Advertising: An Analysis of Current Trends.⁽⁷⁾ Prepared with assistance from the Partnership for Healthy Weight Management, the report analyzes the claims and techniques used in 300 ads from all major forms of media. Based on its analysis, the staff concluded that false or misleading claims are common in ads for weight loss products. Furthermore, although deceptive advertising for weight loss products is by no means new, the staff's comparison of 1992 magazine ads with magazine ads from 2001 suggests that the number of products and the amount of advertising - much of it deceptive - have dramatically increased over the last decade. Reputable marketers continue to take care to avoid false and misleading claims, but it appears that too many unscrupulous marketers are making false claims promising dramatic and effortless weight loss to sell their products.

The report also finds that these deceptive ads have appeared in a wide range of print and broadcast media. Although some publishers and broadcasters embrace the benefits of voluntary self-regulation by choosing not to run ads that make outlandish promises to consumers, others have not. Many of the same questionable claims that the Commission has challenged as deceptive year after year, e.g., that through the use of the advertised product consumers can lose substantial weight without diet and exercise, can lose weight while continuing to eat unlimited amounts of high-calorie foods, and can safely lose a substantial amount of weight in a short period of time, continue to appear.

Because consumers make their product selection based in part on advertising claims, ads that present false or misleading information can impede informed consumer decision making, inflict substantial financial injury, and even harm consumers' health. To explore the impact that these ads have on the public health and new approaches for fighting the proliferation of misleading claims for weight loss products, the Commission will convene a public workshop on November 19, 2002. Government officials, scientists, public health groups, marketers of weight loss products, advertising professionals, and representatives of the media are especially encouraged to participate.

Panel #1 will consist of officials from government agencies with expertise in the health risks of obesity. This panel will discuss why obesity has become a public health problem and what actions their respective agencies are taking to meet the crisis.

Panel #2 will consist of researchers, academicians, medical professionals, and industry experts who will discuss the state of the science. One possible approach to the problem would be to determine whether there are a list of common claims for weight loss products that are generally agreed to be false. To facilitate this discussion, the FTC staff requests comments on whether the current state of the science would establish that the following claims commonly found in ads for over-the-counter weight loss products are false:

1) that the use of the advertised product will cause consumers to lose a substantial amount of weight without reducing their caloric intake and/or increasing their physical activity;

 

2) that the use of the advertised product will cause consumers to lose a substantial amount of weight while still enjoying unlimited amounts of high-calorie foods;

 

3) that consumers can lose a substantial amount of weight through the use of the advertised product that is applied to the body or rubbed into the skin (e.g., wraps, patches, belts, clips, or creams);

 

4) that the use of the advertised product will cause consumers to lose weight preferentially only from those parts of the body for which they wish to lose weight;

5) that consumers can lose a substantial amount of weight through the use of the product advertised to block or absorb fat or calories;

 

6) that the advertised product will cause a substantial amount of weight loss for all users;

 

7) that the advertised product will cause permanent weight loss; or

 

8) that the use of the advertised product will cause consumers safely to lose more than three pounds per week for a period of more than four weeks.

In addition, commenters are encouraged to discuss the state of the science tending to prove or disprove other claims commonly found in ads for weight loss products.

Panel #3 will consist of representatives from the dietary supplement industry, non-prescription drug manufacturers, and others engaged in the sale of weight loss products. They will provide perspectives from the different sectors of the industry on the state of the advertising and marketing of weight loss products and discuss what the industry believes could be done through self-regulation, law enforcement, or other means to stop the proliferation of fraud in this product category.

Panel #4 will consist of law enforcement officials who will discuss the challenges they face in prosecuting weight loss fraud cases and why the efforts taken to date do not appear to have had the desired deterrent effect.

Panel #5 will consist of media law experts who will discuss the extent to which publishers and broadcasters may reject advertisements making questionable claims and what can be done to encourage the media to screen out patently false claims more effectively.

Panel #6 will consist of publishers and broadcasters who will discuss current approaches to self-regulation and the costs and benefits of voluntary screening procedures. This panel will also explore steps that could be taken to encourage effective self-regulation in this area and whether a list of presumptively false claims for weight loss products would assist them in their efforts.

Requests to Participate as a Panelist in the Workshop

Those parties who wish to participate as panelists in the workshop must notify the FTC in writing of their interest in participating by October 15, 2002, either by mail to the Secretary of the FTC or by email to weightloss@ftc.gov. Requests to participate as a panelist should be captioned "Weight Lost Advertising Workshop - Request to Participate, P024527." Parties are asked to include in their requests the name and number of the panel on which they would like to participate, a statement setting forth their expertise in or knowledge of the issues on which the panel will focus, and their contact information, including a telephone number, facsimile number, and email address. An original and two copies of each document should be submitted. Panelists will be notified by October 29, 2002, whether they have been selected.

Using the following criteria, FTC staff will select a limited number of panelists to participate in the workshop:

1. The party has expertise in or knowledge of the issues that are the focus of the workshop.

2. The party's participation would promote a balance of interests being represented at the workshop.

3. The party has been designated by one or more interested parties who timely file requests to participate as a party who shares group interests with the designator(s).

in addition, there will be time during the workshop for those not serving as panelists to ask questions.

Form and Availability of Comments

To facilitate the discussion, the FTC requests that interested parties submit written comments on the issues that the panels will address. Comments should be captioned "Advertising of Weight Loss Products Workshop - Comment, P024527" and must be filed by October 29, 2002.

Parties sending written comments should submit an original and two copies of each document. To enable prompt review and public access, paper submissions should include a version on diskette in PDF, ASCII, WordPerfect, or Microsoft Word format. Diskettes should be labeled with the name of the party, and the name and version of the word processing program used to create the document. Alternatively, comments may be emailed to weightloss@ftc.gov.

Written comments will be available for public inspection in accordance with the Freedom of Information Act, 5 U.S.C. 552, and FTC regulations, 16 C.F.R. part 4.9, Monday through Friday between the hours of 8:30 a.m. and 5:00 p.m. at the Public Reference Room 130, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. This notice and, to the extent technologically possible, all comments will also be posted on the FTC website, www.ftc.gov.

By direction of the Commission.

Donald S. Clark
Secretary

1. The Surgeon General's Call To Action To Prevent and Decrease Overweight and Obesity, U.S. Department of Health and Human Services, at xiii (2001).

2. Id.

3. Serdula, M.K., et al., Prevalence of Attempting Weight Loss and Strategies for Controlling Weight, J.A.M.A. 1999;282:1353-1358 <http://jama.ama-assn.org/issues/v282n14/rfull/joc90559.html>.

4. Bryant, J., Fat is a $34 Billion Business, Atlanta Business Chronicle (Sept. 24, 2001), citing research by Marketdata Enterprises, Inc.

5. Graham Colditz, Economic Costs of Obesity, Am. J. Clin. Nutr. 1992;55:503-507s, cited in Statistics Related to Overweight and Obesity, National Institute of Diabetes & Digestive & Kidney Diseases (visited July 25, 2002) <http://www.niddk.nih.gov/health/nutrit/pubs/statobes.htm#20>.

6. Heidi Michels Blanck, et al., Use of Nonprescription Weight Loss Products: Results From a Multistate Survey, J.A.M.A. 2001;286:930-935 <http://jama.ama-assn.org/issues/v286n8/rfull/joc10285.html>.

7. The report is available at www.ftc.gov.