In the supplement universe, governing bodies typically identify three eternal problem areas, wherein lurk the unscrupulous business practices that mainstream news sources so love to uncover, hash and rehash. The categories of sports nutrition, sexual health and weight loss tend to harbor the most instances of common industry malfeasance, like adulteration, cut-and-run capitalism and overblown claims, with marketing that often supersedes the boundaries of efficacy, legality and good taste.
Advertisements for weight loss supplements are of special note, as the U.S. Federal Trade Commission (FTC) has made efforts to curb fraud in weight loss marketing, most notably over the issue of before-and-after testimonials.
I recently spoke with attorney Ivan Wasserman, of Washington, DC-based law firm Manatt, Phelps & Phillips, and asked him about FTC’s current stance on weight loss fraud. He explained that historically, quantified atypical testimonials would fly as long the advertiser had substantiation that the product was effective, and it used the disclaimer “results not typical.” The consumers were often in the dark about what typical results actually were. “Now marketers have to show what typical results are,” Wasserman explained.
As with most FTC guidelines, there’s some legal wiggle room around the language. “Typical results are difficult to show and define,” said Wasserman. “For example, is typical the same for a 500-pound person and a 200-pound person?”
Popular products like Hydroxycut and Xenadrine temper their 54-pound and 45-pound weight loss stories with a disclaimer showing some semblance of research to quantify “typical.” Here’s what sits below each before-and-after testimonial on the Hydroxycut website: “Individuals used Hydroxycut with diet and exercise and were remunerated. Average weight loss with key ingredients was 20.94 lbs. vs. 1.70 lbs. with placebo in one 12-week study, and 16.50 lbs. vs. 1.73 lbs. in one 8-week study. All groups followed a calorie-reduced diet.”
Well there you go. It’s science. But the notable lack of specificity regarding the words “diet and exercise” still leave some questions unanswered. And rather than the 12-week or 8-week studies mentioned in the disclaimer, the testimonials on the website all show the results of 18-week regimens, trumping up the results even further.
Xenadrine’s website provides a similar disclaimer. Zantrex-3 doesn’t even touch testimonials.
But the disclaimer seems to suffice for FTC, where the big issue is about quantified results. One way that marketers may be able to avoid having to state typical results, Wasserman explained, is to not use any numbers. “If an advertisement with a testimonial uses just pictures and no number, it’s harder for FTC to grapple with.” Also, displaying a great range of results allows marketers to navigate around the definition of “typical.” “One way advertisers are trying to avoid implying that the results of any one consumer are ‘typical,’ is to have a whole range of testimonials—for example, 20 before-and-afters ranging from five to 100 pounds of weight loss.” Wasserman stressed, however, “Whether you use one testimonial or twenty, whether you use only pictures or numbers, the bottom line is you must have competent and reliable scientific evidence that your product is effective.”
During this past summer, FTC took pains to revamp its definition of “competent and reliable scientific evidence” in two landmark claims substantiation cases leveled against Nestle and Hydroxycut manufacturer Iovate Health Sciences. They’ve caught on that words are shifty, and may take a closer look at “typical” sometime soon. Until then, weight loss remains a category with a lot of leeway, a lot of caffeine and more than a few raised eyebrows.