Keep an Eye on the FTC

Keep an Eye on the FTC

by Jon Benninger

After attending the Federal Trade Commission's (FTC) workshop"Deception in Weight Loss Advertising" in Washington last month, I ama little wary. First, I am opposed to all false and misleading advertisingclaims and fully support law enforcement action against those who defraudconsumers. However, the FTC workshop could set a precedent that will affect allof us.

Until now, FTC has regulated advertising by taking enforcementaction against advertisers that the agency believes have made a false orunsubstantiated claim. In other words, the regulation occurs after the adhas appeared. The agency is seeking to change this sequence in the specific caseof weight-loss advertising. FTC is proposing the development of a list offorbidden claims the media should use to pre-screen ads.

This is problematic. As media representatives at the workshopclearly stated, such a list would cause them to refuse all ads for weight-lossproducts, citing the lack of resources to pre-screen the ads. In other words,even if a manufacturer had substantiation for a weight-loss claim that was noton the forbidden list, the media would likely refuse to accept the ad.

Second, if this new regulatory theory comes to pass, it isextremely likely that it would be expanded into other product categories. Whatis developed for weight-loss products could be broadened to apply to all dietarysupplements, with a very long list of "illegal" claims.

As I noted, I fully support the FTC in its mission to stopfraudulent and misleading advertising claims. I just get nervous when aregulatory agency starts to make a list of things that cannot be said. And,based on the clear bias the FTC's science panel showed against dietarysupplements, the list of forbidden claims for dietary supplements would not beshort.

Also, during the workshop, the science panel alluded todiscussions with FTC representatives about the questions and content of thispanel. Unfortunately, I don't think the participants from the trade associationsreceived the same pre-event assistance. One association representative evenmentioned to me prior to his panel that he had no idea what the questions wouldbe. The "script" for this workshop was clear. The science panel wasassembled to vote unanimously against the eight claims in question. The industrypanel was assembled to demonstrate industry support (how could they not supportsuch broad scientific agreement?) for the creation of a list of illegal claims.And the media panel was assembled to agree to abide by such a list. Audienceparticipation, questions and comments were not a part of the workshop--any linesof discussion that veered from the plan were quickly quashed by FTC moderators.

Representatives from FTC stated that the purpose of the workshopwas for the agency to listen, learn and consider alternative ways of addressingdeceptive ads. From my view, it seemed that the purpose of the workshop was tocreate support for one alternative: The development of a list of illegaladvertising claims. We should all keep one eye on this process.