November 15, 2016
A federal judge for the Middle District Court of Florida has entered a $30 million judgment in favor of the Federal Trade Commission (“FTC”) and against NBA Advertising, Inc. and its owner. We had previously blogged about the initial filing of the lawsuit by the FTC, which was brought in connection with claims of deceptive weight loss marketing involving a product by the name of Pure Green Coffee.
Why did the Court enter judgment against the weight loss marketer?
The Court determined that the FTC conclusively established that the marketer had violated the FTC Act by:
- Falsely claiming that the product would cause consumers to lose seventeen pounds in twenty-two weeks;
- Failing to have competent and reliable scientific evidence to substantiate the weight loss marketing claims;
- Making unsupported claims that scientific evidence established the efficacy of the product, when no such scientific evidence existed;
- Failing to disclose that testimonial providers were compensated; and
- Utilizing fake news websites to offer a purportedly objective product efficacy test.
The Court further found a basis to hold the marketer’s owner personally liable by virtue of his knowledge of, and participation in, the subject deceptive weight loss marketing, as well as his use of an enterprise of related entities to carry out the scheme.
Protect Yourself from Weight Loss Marketing Claim-Related Liability
As we have previously blogged, federal authorities and state attorneys general alike have been active in investigating and prosecuting companies for deceptive advertising practices. This case reinforces the notion that businesses should be vigilant in gathering verifiable, scientific evidence to substantiate their health benefit claims. With specific regard to weight loss marketing claims, prior to launching such a campaign, the best advice is to: 1) secure two double-blind independent clinical studies that substantiate any and all weight and fat loss claims; and 2) make sure that the entire campaign is vetted by knowledgeable advertising counsel.
If you are interested in learning more about this topic or need to review your marketing practices and procedures, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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