The First Amendment and FTC Weight‐loss Advertising Regulation

Abstract

The contemporary American ideal of feminine beauty is a skinny, but voluptuous model like Heidi Klum or Tyra Banks, and the ideal man is a cross between the good looks of Brad Pitt and the raw athletic prowess of Derek Jeter or Michael Jordan. Yet over sixty percent of the adult population in the United States is overweight with nearly thirty percent classified as obese, i.e., having a BMI (Body Mass Index) of 30 or more (USA Today 2002). It is not surprising, then, that Americans spend over $30 billion per year on weight-control products and activities (FTC 2002). It is equally not surprising that this substantial pool of funds has attracted the attention of some less-than-scrupulous individuals seeking to make fraudulent profits off of the misery and weight-loss aspirations of so many. While many programs advocate reduced caloric intake and increased physical activity as the prescription for healthy weight loss at a moderate rate, a significant portion of the industry engages in, at best, what may be described as deceptive advertising and at worse blatantly false advertising. [F]alse and misleading claims are common in weight-loss advertising, and ... appear to have increased dramatically over the past decade (FTC 2002, p.vii). There is no doubt that a large number of unscrupulous weight-loss product manufacturers are preying on vulnerable consumers through the use of false and deceptive advertising campaigns. Since 1990, the Federal Trade Commission (FTC) has brought approximately 90 enforcement actions for false or deceptive weight-loss advertisements or claims and has apparently never lost a case (FTC 2003). Despite these efforts, advertisements with unsubstantiated claims continue to proliferate. While the efforts of the FTC have been laudable, the results have been somewhat less than successful in ameliorating the problem. Yet review of the over 160 cases brought by the FTC since 1927 reveals no meaningful enforcement action against media vehicles (FTC 2003). The weight-loss industry consists mainly of small and transient manufacturers, rendering enforcement efforts aimed at producers nearly futile. The FTC has limited resources which are being inefficiently allocated pursuing enforcement actions against manufacturers. Since there are fewer media vehicles than manufacturers, enforcement action aimed at vehicles would certainly prove a more efficiently allocation of resources. Obviously, any attack on media vehicles by the FTC raises First Amendment issues. However, careful review of the law reveals that there is nothing to prohibit such an FTC campaign. Accordingly this paper argues that enforcement action by the FTC against media vehicles would be a more effective method of limiting the growth of false and deceptive weight-loss advertisements. Moreover, repeated actions by the FTC would ultimately lead to potential liability for the vehicles at the state level and would therefore constitute a significant economic deterrent to continued acceptance of such ads. THE FTC'S DAUNTING TASK The difficulty in policing dietary-supplement advertising claims primarily is based on the diffuse nature of the industry. Effective industry-wide regulation is routinely thwarted because termination of one misleading advertisement campaign is quickly replaced with another. A common denominator and more efficient avenue for controlling the dissemination of false advertising in this area would be regulation of the media through which the advertisements flow. False and deceptive weight-loss advertisements result in substantial financial losses to duped consumers and occasionally to serious illness or even death. For example, from 1994 to 2000, Ephedra, a chief ingredient in Metabolife (a dietary supplement marketed for weight loss), was implicated in 80 deaths and 1400 cases involving significant adverse side effects (Public Citizen 2001). Given the severity and prevalence of the problem, federal governmental intervention would be expected. …