Senate Hearing on Diet Claims Targets Outliers

Outlandish weight-loss claims are nothing new. People have been trying to lose weight for decades, and they are often vulnerable to quick fixes. The Senate Subcommittee on Consumer Protection, Product Safety and Insurance held a hearing today on “Protecting Consumers from False and Deceptive Advertising of Weight-Loss Products" to gather input on how to best approach the advertising and marketing problem.

While witnesses included representatives from supplement industry trade groups, ad watchdog groups and FTC, which recently settled a case involving weight-loss  marketers accused on deceptive advertising, the Senate panel had its attention focused mostly on Dr. Oz (Mehmet Oz, M.D.) whose popular TV talk show, The Dr. Oz Show, has covered many weight-loss and other health products.

Subcommittee Chairman Claire McCaskell (D-MO), who called the hearing, honed in on the language used by Dr. Oz relative to weight-loss ingredients, such as green coffee extract and Garcinia cambogia, saying words like “magic" and “miracle" undermine his credibility and put consumers at risk of deception and disappointment.

Oz acknowledged that in the past he used what he called “flowery" and “passionate" language to describe the benefits of various products and that this might have caused federal agencies such as FTC and FDA some extra distress—unscrupulous marketers pick out bits of what Oz has said on his show and twist them to sell products with misleading claims. However, he said he studies products deeply before he talks about them on the show, and he believes in the products he talks about so much that he even recommends them to his own family. “There are products I feel strongly about, but won’t air," he said, noting his fear of being taken out of context.

McCaskell was having none of the Oz defense. “I’m surprised you are defending this," she responded, referring to his use of words like miracle. “I don’t understand why you need to go there." She added his misuse of language relative to weight loss products is not just from 100 episodes ago, but as recent as this year. She urged Oz to look closely at the FTC’s “7 Gut Check Claims" and let them guide his advice on the TV show.

“I know the seven claims," Oz said. “My job is to be a cheerleader for the audience…to offer hope."  He reiterated that he researches the evidence on products before they air and noted he is still comfortable with recommending green coffee extract. He said what those who steal his words for marketing leave out is his consistent message on the show that pills and supplements won’t help if they are not paired with  healthy diet and exercise. Oz also reminded he went after the very scammers the panel and FTC have targeted, and he doesn’t sell any product he recommends.

“I know you feel that you are a victim," McCaskell quipped, “but sometimes conduct invites being a victim." She told Oz he has considerable power with consumers who seek health solutions, but with power comes great responsibility. “I know you take this seriously; I know you care about America," she said. “We didn’t call this hearing to beat up on you but to talk about this real crisis in consumer protection." She told him he can be part of the “police" or part of the problem, the choice is his.

Among the solutions Oz offered to limit weight loss scams were increased cooperation between federal agencies, state attorneys general and private sector companies on identifying offenders and shutting them down; development of a master list of celebrity endorsements to be held by FTC and used to quickly identify violators; and a whistleblower system specific to weight-loss claims. He noted internet advertising platforms must bear some responsibility to curtail dubious weight-loss claims.

Robert Hatton Haralson IV, executive director of TrustinAds.org, also testified on how his organization’s membership of internet industry leaders is working together to keep deceptive advertising off the internet and to educate consumers on ad-related scams. One of its most recent Bad Ads Trend Alerts highlighted online weight-loss ads for dietary supplements and other products. He said the members are immediately incentivized to stop deceptive ads from running on their sites with the use of sophisticated automatic filtering systems.

While McCaskell wished brisk walks would be advised instead of dietary supplements or other weight-loss products, she and the panel, for the most part, took little issue in the dietary supplement industry’s position that scammers should be removed from the marketplace and prosecuted, and   while industry supports FTC enforcement, it has also undertaken efforts as self-policing. “Our members fully support efforts to combat fraud and to enforce the range of rules and regulations that the federal government has to protect consumers and to give them the information they need," said Dan Fabricant, Ph.D., CEO and executive director of the Natural Products Association (NPA). “Our members know that the public trust with their customers is one of the main reasons that natural products are so prevalent in the marketplace."

Fabricant detailed NPA’s Truth in Advertising Program, including actions taken and changes made by advertisers through the program.  Drawing on his recent experience as head of the dietary supplement division at FDA, Fabricant outlined the numerous enforcement actions FDA has the authority to use including mandatory recall, administrative detention, injunctions and seizures. He also noted FTC’s enforcement actions in the weight-loss area in telling the panel federal authorities have the tools they need to address weight-loss scammers. However, despite all the tools and actions, “We are still wrestling with online advertisers," he said.

Steve Mister, president and CEO of the Council for Responsible Nutrition (CRN)—which partners with the BBB’s National Advertising Division (NAD) on self-regulation for the dietary supplement industry—said a significant first step would be to increase resources and priority for weight-loss enforcement in FDA and FTC. Strengthening policing programs would also help, as would more online retailers vetting advertisers. “Some media outlets, eager to accept advertising dollars, turn a blind eye to advertising copy that clearly violates the law," he said, in his full testimony. “It seems every time FTC targets one company for deceptive advertising, two more pop up."

McCaskell asked Mary Koelbel Engle, who testified on behalf of FTC’s Bureau of Consumer Protection’s Division of Advertising Practices, if the agency considered going after media outlets. “Media enjoys considerable first amendment protection," Engle said. Section 12 of the FTC act provides the authority for the agency to pursue any entity that disseminates false or deceptive advertising, Engle explained, but FTC has thought it makes more sense to work with media on a voluntary and cooperative basis.

C. Lee Peeler, president and CEO of Council of the Better Business Bureau (BBB), who also testified during the hearing, told the panel national broadcasters are doing a good job of weeding out bad advertising, but smaller media companies, including radio are more challenged by smaller resources and staffs. However, he said even a single ad buyer in a small media company could use the Gut Check guide to keep fruadlent ads off the air. When asked by McCaskell why satellite radio also features deceptive weight loss advertising, Peeler said, “industry needs to catch up to technology."

Despite a plug during the Q&A by Sen. Richard Blumenthal (D-CT) for his Dietary Supplement Labeling Act, introduced with Sen. Dick Durbin (D-IL), dietary supplement regulation was not a major focus of the hearing. Rather, after Fabricant and Mister testified that the problem is primarily with fringe or fly-by-night companies acting unscrupulously and illegally—even the testimony from Dr. Oz said existing laws allow for enforcement of these scams—the panel focused on how to address these outlier companies that often have no physical address, are foreign and/or change names after enforcement.

“Dr. Fabricant’s point that it is easier to go after …companies that you can find that have buildings and that are actually manufacturing something and putting their label on it than these post office boxes, that’s one of our conundrums in consumer protection," McCaskell said. “Finding the post office box, finding the IP address and taking action against those who are responsible is very complicated in this world."

She asked how FTC goes after fly-by-nighters. Engle said FTC first has to figure out who is responsible for the ads. This includes not just the creators of the ads but also the peddlers of the ads. She said FTC has gone after affiliates, including issuing multiple rounds of subpoenas to web hosters and ad networks. “It takes significant amount of resources," she explained. “We are able to do it…but it is time-consuming." She said FTC has gone after large affiliates.

Engle also faced questions from Subcommittee Ranking Member Dean Heller (R-NV) about FTC’s practice of barring certain claims unless it is supported by at least two adequate and well-controlled human clinical studies. “It is my understanding that FTC has also tried to apply that [standard] elsewhere," Heller said. “Even though there are some current guidelines in the agency that states that determining whether competent and reliable scientific evidence exists is a flexible and a fact-specific inquiry. Is there some conflict in some of the regulations that you are trying to enforce?"

Engle said she sees no conflict. “The basic law is that companies must have a reasonable basis for the advertising claim that they make at the time they make those claims," she explained, adding what constitutes a reasonable basis will depend on the product and the claim. “In the case of products that promise health benefits, the Commission has required competent and reliable scientific evidence." She noted for weight-loss products, FTC has concluded randomized controlled studies are needed to substantiate claims a product will cause weight loss. She clarified that if a company had one good study showing weight loss, FTC wouldn’t necessarily consider it unsubstantiated, but in cases where a company has violated the FTC act and is under order, the agency has determined two studies are needed going forward. “These kinds of studies for weight loss do need to be particularly long term; they are not particularly expensive relative to the amount of money that can be made for these products, and given the level of fraud we have seen in this area, it is important to have the extra assurance of a second study to assure this was a real result…not due to an inadvertent fluke or bias in the study."

Heller asked if FTC has considered modifying its dietary supplement guidelines, but Engle said the guidelines were written broadly and shouldn’t be considered conflicting.

For more information on the hearing, including submitted testimonies from witnesses and a archived video of the hearing, visit the Senate website for the Subcommittee on Consumer Protection, Product Safety and Insurance.