During my term as a commissioner at the Federal Trade Commission over the past five years, the FTC has brought more than 60 dietary-supplement cases. If we had additional resources, we could bring a lot more. We tend to focus FTC's enforcement priorities on nationally advertised claims for products with unproven benefits; on products promoted on the Internet and elsewhere to treat or cure serious diseases; and on claims that pose significant safety risks
Although the FTC has a variety of means to combat deceptive claims for dietary-supplement and weight-loss advertising, our efforts alone are not enough. We cannot effectively police the dietary-supplement and weight-loss industries by ourselves. The industry and media should play a significant role, but to date they have not stepped up to the plate to help prevent the dissemination of deceptive ads.
better ad screening
The media should engage in pre-publication screening of potentially problematic ads. Newspapers, magazines, radio stations and cable TV should follow the lead of the major broadcast TV networks and responsible print-media companies by refusing to run or promote those ads that, on their face, promise incredible and unachievable results. Our recent law-enforcement experience suggests that some members of the media are, for the most part, not paying enough attention to the ads they publish.
Recently, the commission held a one-day workshop focusing on deceptive weight-loss advertising. The goal of the workshop was to explore alternative approaches to reducing deceptive claims in advertising weight-loss products, as well as to provide the FTC staff and interested parties with an opportunity to discuss new strategies for fighting weight-loss fraud. I listened to much of the workshop discussion and found it both enlightening and disappointing.
The first panel consisted of individuals with a scientific background. They were asked to look at a list of eight categories of claims and indicate whether they believed such claims were scientifically feasible. The claims were those commonly found in weight-loss ads, including "lose substantial amounts of weight without diet or exercise" or "lose weight while still enjoying unlimited amounts of high-calorie foods." The panel essentially agreed that such unqualified claims could not possibly be true. In legal terms, these claims are patently false.
The second panel included representatives of the weight-loss industry. Not surprisingly, there was less unanimity among these panelists' views, but each member indicated that industry self-regulation is important. However, I sensed that industry basically wants to maintain the status quo because of the fear of losing market share. And the market for weight-loss products seems almost insatiable. Ellen Levine, editor in chief of Good Housekeeping, summed it up best when she said "advertisers do not market what consumers do not buy."
The final panel included representatives of the newspaper, cable TV and magazine industries. In some ways, I was most disappointed by this panel. With the exception of Good Housekeeping, most of the media representatives admitted they do not pre-screen ads. While they may screen ads for taste, and they may choose not to run categories of ads-such as for alcohol, tobacco or guns-they appear not to examine, or even care, whether or not a particular ad claim is obviously false.
I, for one, found this very disturbing. I think consumers trust the media to screen ads at some level, especially those consumers who have a relationship with a particular medium, such as a subscription to a newspaper or magazine.
Pocketbook vs. public welfare
So I am left to wonder why the media are not taking a more responsible role. Is it because they are not paying close enough attention to the ads that are being run? Or are they deliberately placing their pocketbook interests above the welfare of the public that they purport to serve?
FTC staff attorneys are developing a list of patently false claims that will eliminate the need to make difficult scientific determinations. Using the list to screen out obviously false ads should not be onerous. I hope we will see more of the media choosing to pre-screen and forgo placing ads that result in a fraud on their audiences who, after all, are their customers, too. I do not believe the First Amendment protects fraud.
Sheila F. Anthony is a commissioner of the Federal Trade Commission, Washington. These are the views of Commissioner Anthony and do not reflect the view of the commission or any other commissioner.