Typical “results may not be typical” hearing


Jared Fogle, who lost a great deal of weight eating Subway products, was not present at a hearing on deceptive advertising, but his name did come up. Subway used him to underscore how it compares, calorie-wise, to other fast food companies. But was the promotional use of Fogle, whose “results may not be typical,” fair or deceptive?

Four groups of Washington types found themselves in agreement, in general at least. Senators want to protect their constituents from unscrupulous advertisers, while also protecting the interests of friends in the advertising community; federal watchdogs want to protect consumers and punish the wicked and get more tools to accomplish the latter goal; consumer watchdogs want to protect consumers and see the wicked punished; and advertisers want unscrupulous competitors shut down while retaining their own rights to sell their wares.

Subcommittee on Consumer Protection, Product Safety Chairman Mark Pryor (D-AR) laid out the types of deceptive advertising he was concerned about, including bait and switch, ads disguised as news, paid bloggers, false testimonials, “free” offers, false advertising of green products, and bogus claims in general. He added that the vast majority of advertisers are good guys – suggesting we must find ways to punish the bad minority without hurting the honest majority.

Ranking member Roger Wicker (R-MS) added that it is important to protect consumers, but not limit their right to hear and evaluate commercial messages.

A key issue discussed was consumer testimonials. The question is whether or not it is fair to highlight consumers who had extraordinary results with a product (often due to using it with other personal life options, like combining the use of a dietary supplement with rigorous diet and exercise programs).

Advertisers said yes, it is fair – it is often motivational to others.

The FTC is worried that consumers biting on deceptive advertising, particularly in health matters, fail to explore conventional treatment options, a dangerous situation that can sometimes lead to fatalities.
A proposed remedy is to require advertisers to disclose average results. Advertisers pointed out this is easier said than done – even defining what an average result is can be an impossibility – particularly in the weight loss category.

Advertisers advocated their self-regulatory practices, saying the last thing they want is the bad reputation and scurrilous competition from false advertisers. Consumer watchdogs agreed that this was a critical component of the policing environment, as long as the FTC provided to backbone to punish the miscreants.

Here are testimony summaries.

David Vladeck, Director, Bureau of Consumer Protection, Federal Trade Commission: FTC deals with deceptive health and safety claims, bogus ecological/green claims, and now, ads preying on consumers worried about the economy. Deceptive health claims put consumers at great risk, because they stop them from seeking actual treatment. It can’t be just about punishing bad guys – consumer education is key. These advertisers often prey on fear and target the elderly or those who can’t afford conventional treatment. Infomercials, fake news broadcasts are often used – they’re really prolonged sales pitches. Also targeting weight loss industry for grossly exaggerated claims. Seeks help from the media to keep these ads off the air, teaching broadcasters about red flag claims indicating likelihood of bogus claims. Consumer testimonials may not include any information that cannot be scientifically supported. Many use disclaimers (like results are atypical) – FTC wants these disclaimers to be held to the same standards as the rest of the ad. Consumers have a right to know when they are the target of a sales pitch, which is why FTC wants full disclosure when bloggers or others are receiving valuable consideration to pitch or display a product or service.

Sally Greenberg, Executive Director, National Consumers League: League has been fighting deceptive ads since 1904. Consumers are used to turning on TV and seeing how easy it will be to lose weight or get rich – with a disclaimer saying that results are not typical. Subway’s use of Jared Fogel is a case in point. Pharmas use images of doctors to push products. Believes this sort of marketing has crossed the line into false and deceptive territory. There are great problems on the internet with compensated bloggers. Public trust has been abused with video news releases – average newsroom gets 10-15 every day. Congress should consider holding VNR producers to FTC regs.

Urvashi Rangan, Director of Technical Policy, Consumers Union: Broad and specific challenges defining allowable green marketing. Words like carbon-neutral, natural, non-toxic seem more impressive than they really are, other deceptive words out there as well. Bottom line, a consumer can not look at a product and see if claims are certified. Uses six-pronged standard for evaluating labels, not the least of which is independently confirmed as factual. Eliminating or better defining meaningless or unverified terms should be banned or explained. No claims unless they are certified. Baselines for claims established. Better define differences between organic and natural. Mandatory ingredient label for green products.

C. Lee Peeler, President and CEO, National Advertising Review Council: Advocates self-regulation as a means of preventing deceptive advertising. Three self-regulatory bodies. If deception is found, advertisers must make necessary changes. Many complaints come from competitors, a healthy sigh of a self-policing marketplace. Third party groups participate. Industry support for self-regulation is over 90%. Advertisers who refuse to participate are referred to the FTC or other appropriate government agency. Self-reg is taking on deceptive green claims. Annually, hundreds of advertisers participate in the system. Still, much work to be done.

Greg Renker, Co-Chairman, Guthy-Renker LLC: Direct-response TV advertising company. Chair of electronic marketing association. Self-regulation is key to making the advertising form work – customers must be able to trust the products sold in infomercials. Federal regulation should be used when necessary. We share the goals for a fair and healthy marketplace. Fears proposals may have unintended negative effects. Consumers testimonials – marketer has always been able to use consumers who had results better than another might enjoy. Finally, we’re all singing from the same hymnal – we all want fair, truthful advertising – and we don’t want to compete with unscrupulous advertisers who take share while damaging our own credibility.

Jon Congdon, President, Product Partners, LLC: Provider of health and fitness products. Products have helped millions lose weight and improve health. Advertising emphasizes that physical effort is required to get the most out of its products. Agrees with almost all he has heard today – unscrupulous companies make it hard to advertise his products. False advertisers create a hurdle Product Partners must clear in its own advertising. Requirement to disclose average results is a problem. Unscrupulous companies may just load their test groups to get desired results, while honest companies will face great expense to comply without even understanding how to measure “average” in a category like weight loss. An extraordinary weight loss story they run has inspired others to try to lose weight even though their problems are not as severe.

RBR/TVBR observation: Nobody is in favor of false advertising, least of all honest advertisers. But it’s extremely difficult to construct a dragnet that catches the crooks without also rounding up a large number of the innocent. Speech is a slippery thing, which is why the First Amendment must be respected. To avoid the legislative/regulatory desire to write new rules, the more strength and effectiveness that advertiser self-regulatory bodies can demonstrate, the better