Too good to be true?
Advertising
Advertisements that offer miraculous, quick-fix solutions for weight loss are on their way to becoming the next First Amendment battleground.
That's because false or misleading claims are rampant in weight-loss advertising, despite the government's efforts to crack down on offenders. The Federal Trade Commission has brought more than 80 such cases during the past decade, among them a record $10 million judgment against Enforma Natural Products Corp. (The company claimed that its Fat Trapper product, extracted from the shell of crustaceans like shrimp and crab, prevented the absorption of fat.)
But regardless of that enforcement push, nearly 40 percent of ads in a recent FTC study make at least one claim that is almost certainly false. Meanwhile, weight-loss advertising has more than doubled in the past decade. Selling diet pills can be so profitable that operators continue to flout the law or simply close up shop and pop up later.
So the Bush administration is turning its sights on the media, trying to persuade magazine and newspaper publishers and cable TV stations not to publish weight- loss ads that make obviously false claims. By summer's end, the FTC will have finished a "no-no" list of claims with no scientific basis. Though still in the works, the list is likely to include claims such as "Eat all your favorite foods and still lose weight."
Earlier efforts to jawbone publishers on this issue have failed. "A publisher's job performance is based on ad revenue," says Herbert Rotfield, a media expert at Auburn University. "What's the incentive for rejecting an ad?" ( U.S. News itself ran one such ad a few years ago.) But this time the FTC is raising the ante, with implied threats that its list could prompt legal action against media outlets that don't screen ads sufficiently.
Prior restraint? That prospect is sending magazine and newspaper publishers into conniptions. "If today we have to screen weight-loss advertising [for truthfulness], what category will we have to screen tomorrow?" asks Michael Pashby, executive vice president of the Magazine Publishers of America. Both the MPA and the newspaper publishers' trade group believe the FTC's dissemination of the list would be an unconstitutional prior restraint on speech. False-advertising laws were meant to target advertisers themselves, and the media groups believe the government has no statutory authority to widen the laws' scope to include the media.
From a practical point of view, says Pashby, the FTC list will be out of date the minute it is published, with wily operators changing their ads just enough to skirt the prohibitions. He predicts that many magazines would simply stop running all weight-loss ads to avoid extra expense and potential legal hassles, an outcome the government does not want. The final decision to go forward with the "no-no" list rests with the FTC's top brass, whom the publishers are trying to dissuade. But with three of the five commissioners on record in favor of new media responsibility, odds are that a list will be published. -Pamela Sherrid
This story appears in the June 16, 2003 print edition of U.S. News & World Report.