If you use consumer testimonials in your ads or have clients who do, check out the FTC’s settlement with Jason Pharmaceuticals, a subsidiary of the diet company, Medifast, Inc. But to really explore what the case is about, we’ll need to take a trip back to 1992. (Sorry -- we should have asked our UK consumer protection counterparts to let us borrow the TARDIS for this.)
1992 is when the FTC settled a case with Jason for allegedly deceptive weight loss claims. The order barred the company from making unsupported promises about losing weight or keeping it off.
Fast forward to the present. According to the FTC, at least since 2009, Jason ran ads that featured unsupported weight loss claims about low-calorie meal substitutes, including Medifast’s “5 and 1” plan.
The ads made prominent use of consumer testimonials. Here’s just one example: “Why Medifast? Three great reasons. Cynthia Lujan lost 70 lbs. on Medifast! Cindy Daniels lost 43 lbs. on Medifast! Jennifer Lilly lost 70 lbs. on Medifast! You can lose 2 to 5 pounds per week on Medifast." Another ad said: “TRUST MEDIFAST. THE PROGRAM THE DOCTORS RECOMMEND. Jeff & Maureen lost a combined 169 lbs.!”
In most ads, the only disclaimer was a small, inconspicuous “Results will vary” in print or a rushed statement on radio or TV. The complaint alleges that the ads conveyed to consumers that users of the Medifast low-calorie diet program will likely lose 2 to 5 pounds per week, that the results of the people in the ads were typical of what users would get, and that users will likely lose more than 30 pounds. The FTC says that Jason didn’t have proof to back up those claims.
What about that “Results will vary”? The complaint says it wasn’t sufficient to change the net impression that Medifast users could expect the get the results featured in the ads.
To settle charges that it violated the 1992 order, Jason will pay a $3.7 million civil penalty. In addition, the company is barred from misrepresenting that people who use any low-calorie meal replacement program, including the Medifast “5 and 1” plan, can expect to get the same results as an endorser or can lose a particular amount of weight or maintain weight loss. To support clams like that, the company will need at least one adequate and well-controlled human clinical study of the low-calorie meal replacement program or a study that follows a protocol laid out in detail in the settlement.
The company also will need appropriate scientific evidence to back up any other claim about the health benefits, safety, or side effects or any low-calorie meal replacement program. In addition, the new order bars misrepresentations that any doctor, health professional, or endorser recommends a weight loss product, program, service, drug, or dietary supplement.
What can other marketers take from the settlement? First, as the FTC has said for decades, companies need sound science to support health claims, including weight loss representations. Second, “results will vary”-type “disclaimers” aren’t likely to disclaim anything. That’s why it’s important to consider the net impression conveyed by your testimonials. Read the FTC's Endorsement Guides for more on using testimonials in your ads. Third, once a company is under order, the FTC takes enforcement seriously.
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