Wednesday, June 18, 2008
Eric S. Nguyen, Harvard Law School, has published "Weight Loss Testimonials: A Critique of Potential FTC Regulations on Diet Advertising," in volume 63 of the Food & Drug Law Journal (2008). Here is the abstract.
Each year, millions of consumers purchase diet products ranging from herbal supplements to meal replacement drinks. Companies like Weight Watchersand Jenny Craig devote tens of millions of dollars of their annual budget toadvertising. At the center of much of the industry's marketing efforts are television advertisements featuring consumers who have experienced great success with such products. Concerned that these testimonials consistently mislead consumers, the Federal Trade Commission has suggested that it may promulgate more restrictive advertising guidelines. Industry watchers have suggested concrete revisions.The most aggressive proposal would restrict advertisers to featuring only those consumers who have experienced typical weight-loss results. Other proposals call for companies to include in their advertisements a table of detailed statistics on typical weight loss. This article argues that these leading proposals for change are overly broad and likely to be found unconstitutional under the First Amendment. It suggests that Congress and the Commission should instead devote greater resources to the post-market enforcement of the existing guidelines, which already require that testimonials be both representative of what consumers will generally achieveand confirmed by adequate substantiation.
Download the article from SSRN here.