There are certain questions we ask ourselves when investigating companies’ health claims. Did they have appropriate substantiation? Did they tell the truth when they said their claims were supported by scientific studies? Did they clearly disclose that product endorsers were getting a piece of the pie? When it comes to a just-announced multimillion dollar settlement with the marketers of Nopalea – an “anti-inflammatory wellness drink” derived from Nopal cactus (also known as prickly pear) – the FTC says the answer to those questions is nope, nope, and nope.
Sold by Scottsdale, Arizona-based TriVita, Inc., a 32-ounce bottle of Nopalea set people back $39.99 plus shipping and handling. The beverage also contains agave nectar, pineapple syrup, and a proprietary blend called “purple haze” – although at the risk of disappointing Jimi Hendrix fans, the “purple haze” in Nopalea is a mix of grape seed, beet juice powder, and orange juice concentrate.
Ads for Nopalea, including an infomercial with 70s supermodel Cheryl Tiegs, claimed the product was effective for an encyclopedia of maladies, including pain from arthritis, fibromyalgia, swollen joints, stiff muscles, and surgery; skin conditions like psoriasis; breathing problems, including sinus infections; and a host of other health issues. What’s more, the advertiser said that scientific studies proved that drinking Nopalea significantly reduces or eliminates the effects of inflammation and a litany of serious pain. The complaint alleges that the defendants didn’t have appropriate support for their representations. What about the claim that scientific studies prove Nopalea significantly reduces inflammation, pain, and swelling? False, says the FTC.
The ads also featured consumer endorsers touting the benefits of the product. But many of the people who told those dramatic stories were actually “Independent TriVita Business Owners” who got a commission from the sale of Nopalea – a fact the defendants had an obligation to clearly disclose.
To settle the case, the defendants will turn over $3.5 million for consumer redress. The stipulated order also contains provisions to protect people in the future. You’ll want to read the order for the particulars, but for covered products, the defendants will need randomized, double-blind, placebo-controlled human clinical testing before making a broad category of claims related to inflammation, pain relief, and other medical conditions. Other health claims will have to meet the “competent and reliable scientific evidence” standard.
The stipulated order applies just to the defendants, but there are insights that perceptive marketers can take from the case.
Dramatic “good for what ails ya” claims are likely to draw scrutiny. Before making bold promises that a product can treat a wide variety of serious diseases and medical conditions, make sure your substantiation is in order. Advertisers who say expressly or by implication that scientific studies support those claims shouldn’t be surprised when the FTC says “Show me.”
Rank and file(s). The stipulated order requires the defendants to hold onto underlying data about human clinical tests or studies – protocols, information about randomization, statistical analyses, documents about sponsorship, etc. There’s an exception for reports published in peer-reviewed journals, but the provision offers insights into considerations experts may apply in evaluating clinical data.
Test your testimonials. There’s a mistaken belief in some quarters that the standards are different when health claims are conveyed through consumer testimonials. Not so. As the FTC Endorsements Guides make clear, “Consumer endorsements themselves are not competent and reliable scientific evidence.” If you don’t have the science to support the underlying claim, it’s unwise to convey it through an endorsement.
The object of my connection. While we’re talking testimonials, the complaint charges that the defendants failed to adequately disclose that many of the “consumers” who endorsed Nopalea were actually product distributors who get a commission on the sale of the product. Here’s the standard: If there’s a material connection between the endorser and the marketer of the product – a link that would affect how people evaluate the endorsement – disclose it. Read The FTC’s Revised Endorsement Guides: What People are Asking for a quick refresher.