Not all marketing claims, no matter how glossy the campaign, are created equal. This is the message that the Federal Trade Commission (“FTC”) recently sent when it began paying out a whopping $21 million-plus to consumers that were misled by Lights of America Inc. The FTC filed suit against the California-based light bulb manufacturer in September 2010, alleging that it exaggerated the light output and life expectancy of its LED bulbs.
More recently, the government entity mailed more than 430,000 checks totaling upwards of $10 million, the total amount that prepaid debit card company NetSpend agreed to pay up to settle an FTC lawsuit, accusing it of denying or delaying activation of consumers’ cards.
Both multi-million dollar cases center on companies making false or deceptive marketing claims to consumers, and thereby, fall neatly within the FTC’s role as the nation’s consumer protection agency. So, too, does the rising promotion of an array of teas, shakes, and lollipops, which promise benefits, such as weight loss.
In particular, Flat Tummy Co. says its products “reduce bloating, support your metabolism, cleanse your system, and improve digestion.” The Perth, Australia-based company, which manufactures in and distributes its products from New York rose to fame thanks to paid-for promotions by the Kardashian/Jenners and a handful of other celebrities and influencers, all of whom have boasted about the results of the “weight loss” teas and appetite suppressant lollipops.
Flat Tummy Co. joins FitTea, another popular Instagram-promoted brand that sells products containing ingredients, which it says have a “metabolism boosting effect.” Yet, neither company’s wellness warranties “have been evaluated by the Food and Drug Administration,” and as Steven Salzberg, a professor at the Johns Hopkins School of Medicine, told Forbes, chances are, these companies are likely peddling little more than “the classic dietary scam.”
The National Advertising Division (“NAD”) seems to agree. The organization – which is the division of the Better Business Bureau tasked with “reviewing national advertising for truthfulness and accuracy, and fostering public confidence in the credibility of advertising” – took action against FitTea last year after receiving complaints that the company and its famous endorsers were engaging in paid-for social media marketing that was not disclosed as such.
While the NAD found that Kourtney Kardashian, Khloe Kardashian, and Kylie Jenner had been paid to post about FitTea on various social media platforms, but had failed – on more than one occasion – to disclose the paid nature of the endorsements in the relevant posts, it took issue with something else, as well. The NAD criticized the content of some of FitTea’s paid-for endorsements, namely ones that assert that consuming FitTea helps to promote weight loss.
The NAD’s January 2017 decision states, "While the diet and exercise program that FitTea promotes to customers who purchase FitTea might result in weight loss or other weight-related health improvements, there was no evidence in the record that drinking FitTea by itself will boost metabolism, boost immunity, burn fat or otherwise result in weight loss.”
The non-profit organization reviewed FitTea’s claims that its products “boost energy” and “support metabolism” claims, and noted that while research on green tea is promising and indicates that green tea extract may aid in fat oxidation, the effect of green tea and caffeine on weight loss and/weight maintenance is “inconsistent and inconclusive.”
Following its review, the NAD recommended that FitTea discontinue its “boosts energy” and “supports metabolism” claims (which the company has done) and also recommended that FitTea refrain from posting or reposting testimonials – either authentic or paid-for – that assert that its products facilitate weight loss, unless it could substantiate such claims with conclusive medical or scientific evidence.
Unsurprisingly, given their similar company positioning, Flat Tummy Co.’s website and social media accounts make many of the same claims as those that the NAD flagged as problematic for FitTea, including claims that its products will “reduce bloating, support your metabolism, help maintain a healthy immune system, and boost your energy,” in addition to hosting testimonials specifically speaking to the products’ “weight loss” capabilities.
With that in mind, paired with the widespread paid-for advertisement and endorsement of the Flat Tummy brand and its products (including paid-for social media endorsements and billboards in New York’s Times Square), this seems like a relevant case for FTC attention.