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We can’t vouch for the accuracy of Shakira’s representation that “Hips Don’t Lie.” But the FTC says anti-cellulite and slimming claims for caffeine-embedded underwear sold by lingerie company Wacoal and catalog retailer Norm Thompson were deceptive. As for Norm Thompson's statement that Dr. Oz endorsed its products, the complaint challenges that as false. (And no, we’re not kidding about the caffeine-embedded underwear part.)

Wacoal advertised its iPant line in magazines, online, through social media, and on point-of-sale displays. Was this just a temporary smoothing illusion when women wore the tights, bike shorts, or leggings under clothing? Not according to Wacoal: "Novarel Slim microfiber incorporates microcapsules containing caffeine, retinol, ceramides and other active principles that improve skin’s appearance and control cellulite.  The caffeine activates microcirculation and speeds up the breakdown of fat. The active principles are released during the garment’s use, providing a permanent anti-cellulite effect."

Wacoal’ s hangtag, which recommended wearing the tights or shorts 8 hours a day for 28 days, claimed that “test results show most women reported,” among other things, “a reduction in thigh measurement.”

But there was less to Wacoal’s “proof” than met the eye. The FTC says Wacoal based its claims on two unblinded, uncontrolled trials with serious methodological flaws. What’s more, the company stretched the truth about the results people got from wearing the shapewear. Wacoal's ads promised a "reduction in thigh measurement," but the study showed an average loss of less than 1/6 of an inch.

Norm Thompson also made cellulite and reduction claims for the products it sold – bike shorts, tights, and leggings marketed with the brand name Lytess: “Lose 2 inches off hips and 1 inch off thighs in less than a month . . . without effort.”  The ads continued, “No diets or pills. Lose inches just by wearing these cellulite-slimming Lytess leggings. The unique fabric is infused with caffeine to metabolize fat. . . . In less than a month, you’ll be visibly slimmer and firmer.” The company claimed the product worked because “caffeine metabolizes and dehydrates fat cells” and “botanicals flush out toxins.”

Don’t just take our word for it, Norm Thompson said: “Dr. Oz loves these.” The company’s Body Belle and Solutions catalogs added, “Recommended by Dr. Oz for fighting cellulite!”

What did the science really show?  According to the FTC, the studies cited by the company were unblinded, uncontrolled, and rife with methodological flaws. Furthermore, Norm Thompson selectively advertised a lone statistical outlier. Only one participant out of the 55 people in the studies reported a 2” loss from the hips and only one reported 1” off the thighs.

That glowing recommendation from Dr. Oz? The FTC charged that Dr. Oz never endorsed the product.

Under the terms of separate proposed settlements, the companies will need competent and reliable scientific evidence to support a broad range of future ad claims. In addition, Wacoal will pay $1.3 million and Norm Thompson will pay $230,000 to provide refunds for people who bought the products. 

What can other companies take from these cases?

Substantiation for objective claims: A foundational principle.  When selling unmentionables, most advertisers mention fit, comfort, or other subjective attributes. But the law draws a sharp distinction between a suggestion that a certain kind of underwear may help people look or feel better while wearing it vs. an affirmative representation (especially one supposedly supported with scientific evidence) that it will reduce cellulite, shrink hips or thighs, and destroy fat. If you don’t have a solid underpinning for what you say, don’t make objective claims that are subject to the FTC’s long-standing “reasonable basis” standard.

A brief word on testing methodology.  In both cases, the FTC challenged the way the underlying studies were conducted. Of course, the appropriate methodology will depend on – among other things – the nature of the claim and what experts in the field believe is necessary to support it. But uncontrolled, unblinded tests for caffeine-infused fat-dehydrating underwear?  A prudent advertiser would evaluate the methodology with care.

When recapping results, remove the rose-colored glasses.  Even putting aside the fundamental flaws in methodology, the FTC says Wacoal and Norm Thompson falsely reported the results of their studies. As these cases suggest, it’s unwise to build an ad campaign around statistical outliers. Basing claims on best-case-scenario findings could lead to a worst-case-scenario result for advertisers.

Name dropping?  It’s Marketing 101 that advertisers like to associate their products with famous names. But it’s FTC Law 101 that if an ad says a person endorses a product – whether an expert, a celebrity, or someone else – that claim has to be true. By falsely stating "All styles are recommended by Dr. Oz for fighting cellulite!" Norm Thompson violated that principle.

You can file online comments about the proposed settlements with Wacoal and Norm Thompson by October 29, 2014.

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