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Part Seven Special Topics and Perspectives
Belch: Advertising and
Promotion, Sixth Edition
Exhibit 21-9 Weight-loss
program marketers are now
required to substantiate
their claims as a result of an
FTC ruling
VII. Special Topics and
Perspectives
21. Regulation of
Advertising and Promotion
© The McGraw−Hill
Companies, 2003
complaint charging that none of five large, well-known diet program marketers
had sufficient evidence to back up claims that their customers
achieved their weight-loss goals or maintained the loss (Exhibit 21-9).
Three of the companies agreed to publicize the fact that most weight loss is
temporary and to disclose how long their customers kept off the weight they
lost. The agreement required the companies to substantiate their weight-loss
claims with scientific data and to document claims that their customers keep
off the weight by monitoring a group of them for two years. 51
In 1997 the FTC challenged advertising claims made by Abbott Laboratories
for its Ensure brand nutritional beverage. The FTC charged that
Abbott made false and unsubstantiated claims that many doctors recommend
Ensure as a meal supplement and replacement for healthy adults,
including those in their 30s and 40s. The agency complaint said Abbott
relied on a survey of doctors that wasn’t designed to determine whether
many doctors actually recommended Ensure as a meal replacement for
healthy adults. Rather, according to the FTC complaint, the survey asked
doctors to assume that they would recommend a supplement for adults who
were not ill and then merely select which brand they would suggest. The
FTC ruled that Abbott went too far when it suggested that doctors recommend
Ensure for healthy, active people, like those pictured in its ads, in
order to stay healthy and active. Abbott agreed to settle the charges and stop
using endorsements from medical professionals unless it could produce reliable
scientific evidence to substantiate the claims. 52
Recently the FTC has stepped up its action against false and unsubstantiated
claims in ads and infomercials. A few years ago, the commission fined
the Home Shopping Network $1.1 million for making unsubstantiated advertising
claims for two weight-loss products, an acne treatment, and a dietary
supplement for menopause and premenstrual syndrome. Under the settlement Home
Shopping is enjoined from making product claims about curing and treating diseases
without “reliable scientific evidence.”
The FTC’s Handling of Deceptive Advertising Cases
Consent and Cease-and-Desist Orders Allegations of unfair or deceptive
advertising come to the FTC’s attention from a variety of sources, including competitors,
consumers, other government agencies, or the commission’s own monitoring and
investigations. Once the FTC decides a complaint is justified and warrants further
action, it notifies the offender, who then has 30 days to respond. The advertiser can
agree to negotiate a settlement with the FTC by signing a consent order, which is an
agreement to stop the practice or advertising in question. This agreement is for settlement
purposes only and does not constitute an admission of guilt by the advertiser.
Most FTC inquiries are settled by consent orders because they save the advertiser the
cost and possible adverse publicity that might result if the case went further.
If the advertiser chooses not to sign the consent decree and contests the complaint,
a hearing can be requested before an administrative law judge employed by the FTC
but not under its influence. The judge’s decision may be appealed to the full fivemember
commission by either side. The commission either affirms or modifies the
order or dismisses the case. If the complaint has been upheld by the administrative law
judge and the commission, the advertiser can appeal the case to the federal courts.
The appeal process may take some time, during which the FTC may want to stop
the advertiser from engaging in the deceptive practice. The Wheeler-Lea Amendment
empowers the FTC to issue a cease-and-desist order, which requires that the advertiser
stop the specified advertising claim within 30 days and prohibits the advertiser
from engaging in the objectionable practice until after the hearing is held. Violation of
a cease-and-desist order is punishable by a fine of up to $10,000 a day. Figure 21-4
summarizes the FTC complaint procedure.
Corrective Advertising By using consent and cease-and-desist orders, the
FTC can usually stop a particular advertising practice it believes is unfair or deceptive.
However, even if an advertiser ceases using a deceptive ad, consumers may still