The Big Fat Lie

A while ago we talked about some problem product areas for advertising, like tobacco.  That’s a product area that’s specifically covered by statute.  There are other product areas that are problematic also, although they may not be specifically covered by statute.  One area that has received a lot of public attention recently is focused on a growing national problem: Overweight America!

Five years ago, USA Today reported that almost 65% of people in the USA are either overweight or obese.  Americans’ extra weight costs the nation as much as $93 billion in annual medical bills.  Wiki Answers reports that Americans spend over 40 billion dollars a year and it's rising!  CBS Evening News correspondent Sharyn Alfonsi reported, Americans spend about $35 billion a year on weight-loss products.  Where that much money is being spent, there’s going to be advertising, right?   What about those weight loss claims.  Should you run them?  Are they OK?  What are your obligations as a broadcaster?

That’s actually not an easy answer.  Can you run an ad that you know is a lie?  Can stations be sued?  The only area where broadcasters actually have a defense by statue on what is broadcast over their stations is political advertising by a legally qualified candidate.  But there is no statutory defense for regular advertising.  Generally, the Commission will not hold a broadcaster responsible for the truthfulness of its broadcasts, but they do impose do have an obligation to inquire about the truthfulness of the programming, including advertising that they broadcast over their stations where there is reason to inquire. 

In 2004, the Federal Trade Commission launched its “Operation Big Fat Lie,” a nation-wide law enforcement sweep against six companies making false weight-loss claims in national advertisements. Operation Big Fat Lie is a part of the FTC’s efforts to: stop deceptive advertising and provide refunds to consumers harmed by unscrupulous weight-loss advertisers; encourage media outlets not to carry advertisements containing bogus weight-loss claims; and educate consumers to be on their guard against companies promising miraculous weight loss without diet or exercise. 

These cases followed the FTC’s December 2003 “Red Flag” initiative to encourage the media to adopt standards that would screen out weight-loss advertisements containing false claims. As part of the Red Flag initiative, the FTC staff has sent reminder letters to media outlets that ran advertisements challenged in its law enforcement actions. The letters were aimed at assisting media in identifying and rejecting weight-loss ads that contain facially false claims. The media letters included: (1) a copy of the problem advertisement; (2) a copy of the Commission’s Reference Guide for Media on Bogus Weight Loss Claim Detection; and (3) a description of each Red Flag Claim contained in the problem advertisement. The FTC also created a website to assist media in identifying false weight loss claims. 
http://www.ftc.gov/bcp/conline/edcams/redflag/index.html

 The site provides the following keys for identifying weight loss false claims. It advises that the next time media get an ad or spot for a nonprescription drug, dietary supplement, skin patch, cream, wrap, earring or other product that is worn on the body or rubbed into the body containing claims like the ones below, Red Flag the ad. A claim is too good to be true if it says the product will... 

• Cause weight loss of two pounds or more a week for a month or more without dieting or exercise

• Cause substantial weight loss no matter what or how much the consumer eats

• Cause permanent weight loss (even when the consumer stops using product)

• Block the absorption of fat or calories to enable consumers to lose substantial weight

• Safely enable consumers to lose more than three pounds per week for more than four weeks

• Cause substantial weight loss for all users

• Cause substantial weight loss by wearing it on the body or rubbing it into the skin 

-- Gregg Skall is a Washington DC based attorney at Womble Carlyle Sandridge & Rice, PLLC specializing in all things media and FCC. If you have a comment, suggestion, or want more information, you can reach him at (202) 857-4441 or gskall@wcsr.com.

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