USE OF ADVERTISING IN HEALTHCARE INDUSTRY
...e supported by the endorser’s actual use of his or her expertise in making an evaluation of the product. Further, if an ad includes an endorsement by an independent testing organization, that organization must actually be an expert testing organization that has conducted valid scientific tests on the advertised product. Naturally, such test results must support the endorsement message. Lastly, if the expert or organization endorsement is based on comparison, and the overall impression created by the endorsement is that the featured product is superior to other products, then the endorser must actually have found such superiority. Payments for Endorsements Advertisers also must disclose any material connection between a person endorsing a product and the company selling the product. A "material connection" is defined as a relationship that might affect the weight or credibility of the endorsement. For example, if an endorser is an employee or relative of the advertiser, that fact must be disclosed because it is relevant to how much weight a consumer would give to the endorsement. Similarly, an advertiser must disclose if a consumer has been paid for giving an endorsement. Unless the endorser is an expert or well known personality, any payment of money to an endorser in exchange for his or her endorsement must be disclosed. In addition, advertisers must disclose when there exists a connection, other than an endorsement fee, between the endorser and the advertiser which might materially affect the weight or credibility of the endorsement. Both the advertisers and endorsers are potentially liable for violations of the FTC’s rules regarding endorsements. ADVERTISING IN WEIGHT LOSS INDUSTRY – AN ANALYSIS I am going to now analyze the advertising trends in the Weight Loss Industry and examine the use of testimonials and endorsements in the industry. The figures I am going to quote in the subsequent portion are taken from a report prepared by the FTC staff. The report attempts to take a comprehensive look at weight loss advertising and highlights the scope of the problem facing consumers as they consider the thousands of purported remedies on the market, as well as the serious challenge facing law enforcement agencies attempting to prevent deceptive advertising. WEIGHT LOSS INDUSTRY - SOME REPORTED FACTS • A majority of adults in the United States are overweight or obese. • They invest over $30 billion a year in weight loss products and services. • Data indicate that at any given time, almost 70 million Americans are trying to lose weight or prevent weight gain. • In 2000 they spent approximately $35 billion on products they were told would help them achieve those objectives-- videos, tapes, books, medications, foods for special dietary purpose, dietary supplements, medical treatments, and other related goods and services. • As with cigarette smoking and alcohol abuse, false or deceptive advertising of weight loss products and services puts people at risk • Overweight and obesity have reached epidemic proportions, afflicting 6 out of every 10 Americans. • Overweight and obesity constitute the second leading cause of preventable death, after smoking, resulting in an estimated 300,000 deaths per year. • The costs, direct and indirect, associated with overweight and obesity is estimated to exceed $100 billion a year. Many weight loss products and services promise immediate success without the need to reduce caloric intake or increase physical activity. The consumers are entitled to accurate, reliable, and clearly-stated information on methods for weight management. They have a right to know if the weight loss products they're buying are helpful, useless, or even dangerous. For this reason, the staff of the Bureau of Consumer Protection, Federal Trade Commission (FTC), joined with the Partnership for Healthy Weight Management to collect and analyze weight loss advertising. FTC collected and analyzed a nonrandom sample of 300 advertisements, mostly disseminated during the first half of 2001, from broadcast and cable television, infomercials, radio, magazines, newspapers, supermarket tabloids, direct mail, commercial e-mail (spam), and Internet websites. In addition, to evaluate how weight-loss advertising has changed over the past decade, they collected ads disseminated in 1992 in eight national magazines to compare with ads appearing in 2001 in the same publications. I will discuss the findings in detail pertaining to the use of testimonials and endorsement in the industry. 1. Consumer Testimonials Consumer testimonials are pervasive in weight-loss advertising. Of the advertisements in the sample, 195 (65%) used consumer testimonials as a mechanism to promote the weight-loss product or service. The ads that used this technique contained about five testimonials on average, with some containing as many as 50 or more. Testimonials rarely described modest or realistic successes, instead touting extraordinary and rapid weight loss. Nearly 90% of ads using consumer testimonials claimed specific amounts of weight loss and more than half (56%) included a specific time period for the largest amount of weight loss reported in the ad, e.g., “I lost 30 pounds in 30 days.” The average for the largest amount of weight loss reported in each of the 195 advertisements was about 71 pounds. Fifty seven (57) ads (30%) reported weight loss exceeding 70 pounds, and 38 ads (20%) reported weight loss exceeding 100 pounds. In many instances ads used testimonials reporting weight loss in ranges that are, in all likelihood, simply not achievable for the products being promoted. Thirty-six ads used 71 different testimonials claiming weight loss of nearly a pound a day for time periods of 13 days or more. These ranged from claims of 22 pounds in 13 days to 120 pounds in seven weeks. All but three of these ads were for dietary supplement products. There are many examples of implausible testimonials but perhaps the most remarkable is this one from a woman who claimed: “7 weeks ago I weighed 268 lbs, now I am down to just 148 lbs! During this time I didn’t change my eating habits at all: the pounds must have disappeared only due to the new slimming capsule. My appearance is so different that my friends actually believe that I had liposuction.” The product featured in this advertisement claims to work by preventing the absorption of fat in the digestive system. In fact, weight loss of this magnitude would require a net calorie deficit of, 571 calories per day over the course of seven weeks. Even complete fasting would not produce this kind of result. Nevertheless, this testimonial was disseminated to millions of Americans through Cosmopolitan, Soap Opera Digest, National Enquirer, Women’s Day, Let’s Live, Women’s Own, McCall’s, Star, and First for women. Testimonials in weight-loss advertisements appear to serve at least two functions. First, they convey an efficacy claim, i.e., the product works; and second, they attempt to minimize consumer skepticism. Many potential purchasers of weight-loss products have purchased other weight-loss products that failed. The challenge for the advertiser is to convince the purchaser that its product will work when all the others have not. One way to do that is to present the purchaser with examples of “real people” just like themselves who have used the product successfully. Indeed, in some instances, particularly infomercials, the endorser directly addresses viewers to reassure them that the product really worked when all other products and programs failed. Weight-loss testimonials convey more than a limited message about one person’s experience. They also convey a very convincing claim to consumers that the product is effective and, in some instances, that the product will enable the user to experience similarly dramatic results. Thus, testimonials can be deceptive in at least three distinct ways. First, the testimonial may not have experienced the reported result. Second, the reported weight loss may not be attributable to the product, but to other diet, exercise, or lifestyle changes. Third, an advertisement presenting testimonials claiming extreme and typical weight loss as typical or ordinary experiences is likely to be deceptive without an indication of the more modest weight loss results that the typical user would experience using the product. Typical Disclaimers Seventy (70) of the 195 ads (36%) had some form of disclaimer addressing the issue of whether the reported results are meant to be representative of users of the product or service. In only 18 of the cases, however, was the disclaimer conspicuous or proximate to the testimonials. In the vast majority of advertisements, disclaimers were buried in fine print footnotes or, in video ads, flashed as a video superscript too quickly for viewers to read. Some of these disclaimers do little to inform consumers that the results reported in the advertisements are, at best, extreme cases, and that consumers should not expect to achieve similar results. For example, a disclaimer telling consumers that “results may vary” tells consumers almost nothing other than that everyone will not achieve 50 pounds of weight loss. With one or two notable exceptions, advertisers made no effort to provide specific information about the actual weight loss the average consumer could expect using a particular product. 2. Before/After Photos Before-and-after photos, often appearing with testimonials, are commonly used in weight loss ads. Forty two percent (42%) of the ads in this sample contained before-and-after pictures. More than just graphic consumer testimonials, these pictures try to create an image of what the consumers could accomplish personally if they only used the advertised product. Before-and-after pictures usually fall into one of two categories: (1) the illustrated personal testimonial, and (2) the clinical comparison of isolated body portions. The former type often contains the following elements: Before Picture: Snapshot quality photograph of the subject that incorporates poor posture, neutral facial expression, unkempt hair, unfashionable attire, poor lighting, and washed out skin tones. After Picture: Brightly lit (sometimes studio portrait quality) pose of smiling subject in fashionable, often skimpy, attire, shoulders held back, tummy tucked in, with a stylish hair style and carefully applied makeup. Eighty-eight percent (88%) of the ads with before-and-after pictures contained illustrated testimonials. In television spots and infomercials, this type of before-and-after treatment often incorporates a before photograph superimposed over a videotaped segment featuring the subject after using the advertised product or service making his/her videotaped testimonial. Another form of before-and-after illustration isolates one portion of a subject's anatomy, usually the waist or buttocks, to show purported results, sometimes in a progression of three or more photographs over a period of time. These pictures often emulate the kind of illustrations found in medical articles. A few ads (two in this sample) feature both types of before-and-after pictures. Eleven percent (11%) of the ads with before- and-after pictures featured “clinical” comparison pictures. Often the only discernable difference in the before picture and the after picture is a change in posture and body control. In the before picture the subject's shoulders are slumped, the abdominal muscles are relaxed, and the pelvis thrust forward to emphasize body fat. The after picture shows the subject holding in his/her abdomen and/or holding back his/her shoulders to emphasize lean body mass. A close examination of the before picture in this type of ad raises the question of whether the subject needed to lose weight and suggests that little or no weight was actually lost. Some before-and-after photographs clearly appear to have been altered, usually by placing an image of the after subject’s head on the photographic image of another (very obese) subject’s body. Finally, it is not always clear whether “clinical” before-and-after pictures are depicting the results from actual users of the advertised product or service or are intended merely to be illustrative of the product’s or service's capacity to produce weight loss. 3. Scientifically Proven/Doctor Endorsed Still another technique that advertisers use to convince consumers that they are buying a tested and proven product is to assure consumers that a product is “recommended,” “approved by,” and often “developed” or “discovered” by a medical professional. (Table 8) For example, several advertisements prominently feature a “physician” wearing a white lab coat and a stethoscope and sitting in front of a diploma-filled wall. To add an air of legitimacy to the advertised pro duct, some advertisements appear to be written by a physician. Others feature interviews with doctors or researchers who tout the product as being safe and effective. One Internet site even invites customers to call a “Medical Advisory Board” staffed with “qualified medical professionals” to answer medical questions. Expert endorsements, however, can be misleading. For example, an advertisement may fail to disclose that the medical professional endorsing the product has a financial interest in promoting the sale of the product – a fact likely to affect the weight consumers give the endorsement and that could affect their purchase decision.36 Marketers may even use a fictitious medical professional to endorse their products.37 In other instances, experts either may not have actually reviewed the scientific evidence on the product or its ingredients or failed to utilize existing expert standards in conducting their review. CASE I – ROTATION DIET The marketers of the "Rotation Diet" and several related weight-reduction plans made false, misleading and unsubstantiated claims in advertisements for their mail-order programs and products, the Federal Trade Commission charged in a complaint announced. Dr. Barry Bricklin, an expert in the psychology of dieting, signed a consent agreement settling related Commission charges that he provided false and misleading endorsements for the diet plans. Buckingham Productions Inc., five related companies and several individuals sold weight-reduction programs under several names: the "Rotation Diet," the " 'No Frills' Rotation Diet," the "Freedom Diet," the "Freedom Plus! Diet" and the "Rotation- Freedom Diet." Advertisements for the diet plans claimed that dieters could eat virtually unlimited quantities of any food they wished for four out of seven days each week and still lose weight if, for the other three days, they followed a severely restricted low- calorie diet along with the company's vitamin supplements and wafers. Under the plans, the dieter alternated (or "rotated") between "free" days (no caloric restrictions) and "balance" days (calorically controlled). Past Commission cases have established that people on a diet will lose weight and maintain weight loss only if they reduce their total caloric intake over a period of time. Ads for these diets expressly claimed that a range of weight loss per month eight to 20 pounds for women and 12 to 25 pounds for men was usual. According to the complaint, Buckingham did not have substantiation for these claims. The ads also claimed the diets were proven safe and could not harm dieters. The complaint charged these claims were similarly unsubstantiated. The Commission alleged that testimonials by users of the Rotation Diet were not genuine. The Commission also charged that the photographs accompanying other testimonials were in fact photographs of Buckingham employees. The Commission charged that failure to disclose the connection between Buckingham and the photographed individuals was misleading, because reasonable consumers would not expect such a connection, and such disclosure would have affected the credibility of the testimonials. In addition, the Commission charged that Dr. Barry Bricklin, a psychologist and expert in the psychological aspects of dieting, represented that he used his expertise to test and evaluate the products in the same way similarly qualified experts would normally do. The Commission charged he did not have such substantiation. In addition, the complaint alleged that based on his expertise, Dr. Bricklin knew or should have known that the claims in his endorsements were false and misleading. (More) Under the consent agreement, Dr. Bricklin is prohibited from representing in the future that consumers can eat as much food as they want and still lose weight without also giving the specified disclosures about weight reduction. Dr. Bricklin is also prohibited from making claims about "usual" or "average" weight loss, or about the efficacy or performance of weight reduction or weight control products or programs, unless he relies on competent and reliable surveys or other scientific evidence for substantiation, as defined in the agreement. The ads for the diets appeared in national magazines including Family Circle, Woman's Day, T.V. Guide, Redbook, Family Weekly and Playgirl, as well as The Chicago Tribune, The National Enquirer, The New York Daily News, Newsday and other major newspapers. The claims also appeared in television and radio ads and direct-mail brochures. In addition to Buckingham Productions Inc., which does business as the Rotation Diet Center, the complaint names the following companies: Furlong-Elliot Corp.; Freedom Center Inc.; Plaza Business Services Inc.; N.F. Rotation Inc.; and Rotation- Freedom Diet Inc. Buckingham Productions is located in Doylestown, Pa. The other companies are located in Furlong, Pa. USE OF ENDORSEMENTS IN THE PHARMACEUTCIAL INDUSTRY The pharmaceutical industry has contributed to many lifesaving innovations in medicine and has become one of the most successful industries in the world. As a result, pharmaceutical industry financial and marketing influences extend to federal regulatory agencies, professional organizations, medical journals, continuing medical education, scientific researchers, media experts, and consumer advocacy organizations. These extensive influ...