Putting More Proof Into Product Claims


(By Keith Bendis -- Bloomberg News)

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By Cindy Skrzycki
Tuesday, December 9, 2008

Advertisements promising miracle weight loss, full heads of hair and rich investment returns prove the power of marketing and how desperately we don't want to be fat, bald or poor.

Now the Federal Trade Commission, which oversees U.S. advertising including celebrity and customer endorsements, is proposing to change 28-year-old guidelines so the industry would have to be more specific about what consumers can expect from a product. Until now, it was enough to offer broad disclaimers such as "results not typical."

"The advertiser would be required to say what is expected, what is the ordinary result," said Mary Engle, the FTC associate director for advertising practices. "If the average loss is 10 pounds, they should say that."

Eliminating general disclaimers would be a major change for the part of the $149 billion advertising industry that pays for testimonials in print, television and online media. Consumer groups and state attorneys general say the proposal is overdue.

Companies in many product categories use celebrity and customer testimonials. Weight-loss companies, in particular, often use testimonials to show consumers what they might achieve.

"A visual is very compelling in our industry," said Kim Matthews, general counsel for weight-loss company Jenny Craig.

The company uses entertainer Queen Latifah, actress Valerie Bertinelli and pro-basketball player Baron Davis as well as its own customers with before and after pictures that state "results not typical."

Matthews said Jenny Craig knows to the pound what the average person can expect to lose over defined time periods because of extensive research.

Even companies that can back up their claims aren't eager to change the guides. Though labeled advisory, the FTC has used them in dozens of enforcement actions over the past decade when ads were found to be deceptive.

"To require advertisers to say you have to know the typical experience places a difficult, if not impossible, burden on advertisers," said Anthony DiResta, an attorney at Reed Smith who represents the Word of Mouth Marketing Association and the Association of National Advertisers, which represents 400 companies.

DiResta said that while results from a dishwasher detergent might be measurable, it would be much harder to calculate how well a high-protein drink works for everyone on a weight-loss program.

The FTC began a routine review of the guidelines early last year. The latest was issued Nov. 28, with new comments due by Jan. 30.


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