FTC Commissioner Sheila Anthony last week said she would prefer media companies acted voluntarily to halt the ads or submit the claims to self-regulatory processes. But she also said the FTC feels media companies have too long ignored its requests to act voluntarily.
"There is nothing in the FTC act that prevents us [from going after media companies]," said Ms. Anthony, a Democrat serving on the Republican-majority, five-member commission. "We are looking at all advertising and where it is running."
Ms. Anthony said the FTC has already prosecuted marketers and ad agencies for fraudulent health claims, but the number of ads containing the claims continues to grow. "We are seeing questionable claims everywhere we turn," she said.
Ms. Anthony cited the experience of the FTC several years ago. At the time, a number of products she didn't identify promised consumers in ads they could quickly lose varying amounts of weight-in one case up to 93 pounds-without dieting. The ads ran in publications including Hearst Magazines' Cosmopolitan, Esquire and Redbook; Gruner & Jahr USA's McCall's; Hachette-Filipacchi Magazines' Woman's Day; and Gannett Co.'s USA Today. The FTC charged marketers, but it also wrote the media companies asking they curb the ads. Only USA Today responded, she said, and similar ads continue to run.
"Major national newspapers, magazines, television, cable and radio stations seem too ready to accept the substantial advertising dollars of this industry without question," Ms. Anthony said.
Media and advertising groups last week expressed some surprise at the statements and suggested the FTC might have a difficult time holding media companies responsible. At the same time, they suggested the warning may have its intended effect.
"It is going to raise eyebrows. It will raise the awareness that it needs to be looked at," said Jeff Perlman, senior VP of the American Advertising Federation. "But let's not forget that the real villain is companies trying to push the products."
Jerry Cerasale, senior VP of the Direct Marketing Association, warned that trying to determine when an ad is "obviously bogus" is not easy and the FTC would be putting media in the role of being censors. "Our initial reaction is we are very concerned when they start looking at that kind of liability," he said. The Magazine Publishers of America in a statement said it believes "it is the responsibility of advertisers and their advertising agencies to produce truthful and accurate advertising."
"It's very unusual to go up against the media," said Steve Durchlsag, a Chicago lawyer who handles advertising cases. "Up to now, [the media] has not been the focus. It would be an enormous shift in responsibility."