Junkfood Science Special Report: FTC’s diet pill crackdown — a marketing scheme in disguise

On January 4th, the Federal Trade Commission announced it had cracked down on makers of four over-the-counter (OTC) weight-loss pills for making false advertising claims, fining them $25 million.

According to the FTC, the claims made by Xenadrine EFX, CortiSlim, One-A-Day WeightSmart and TrimSpa “were not supported by competent and reliable scientific evidence.”

· Among the claims the FTC complaint said were false or unsubstantiated were those for Xenedrine EFX that it was “clinically proven to cause rapid and substantial weight loss and clinically proven to be more effective than leading ephedrine-based diet products.” The FTC also said the people appearing in their advertisements falsely represented that they had lost weight solely using the product when they had actually had to engage in rigorous diet and/or exercise, and that they failed to disclose they were paid for their testimonials.

· The makers of CortiSlim were accused of falsely claiming the product resulted in rapid, substantial, and permanent weight loss and could reduce the risk of osteoporosis, obesity, diabetes, Alzheimer’s disease, cancer and cardiovascular disease.

· Among the charges against TrimSpa were its use of celebrities and testimonials, and that there was inadequate scientific evidence to support its advertising claims that it caused rapid and substantial weight loss and suppressed appetite. “Testimonials from individuals are not a substitute for science,” said FTC Chairman Deborah Platt Majoras.

· And One-A-Day WeighSmart was slapped down for making unsubstantiated claims it helps control weight by increasing metabolism.

Few would argue against exposing fraud and quackery taking advantage of innocent people, costing them money and possibly endangering their health. But how likely is it that similar criteria will be used to shut down bariatric surgery enterprises, prescription weight-loss drugs and weight-loss plans that are making nearly identical claims or are as poorly substantiated by quality scientific evidence?

Not likely at all.

Those working behind the scenes of the FTC actions are the giants in the mainstream weight-loss industry. By crippling a significant hunk of their competition — OTC weight-loss products, which they note rake in $1 billion a year — more consumers will be led to their products. They are not passive beneficiaries of these FTC actions. For years they have actively participated in an extensive, well-planned marketing strategy.

During 2001, the FTC conducted a non-scientific survey of weight-loss ads. After collecting a nonrandom sample of 300 advertisements from television, infomercials, radio, magazines, newspapers, supermarket tabloids, direct mail, commercial email and the internet, they concluded that fraudulent and misleading advertising was widespread and on the rise. The FTC issued a staff report in September 2002 describing its findings called, “Weight-loss Advertising: An Analysis of Current Trends.” This report especially noted concerns with marketing practices such as testimonials, before-and-after photos and claims of being clinically proven.

“This report is a project of the staff of the Federal Trade Commission with the assistance of the Partnership for Healthy Weight Management,” it stated.

According to Weight Watchers, this Partnership is “a coalition of 41 representatives from government agencies, industry, academia and public interest groups which was spearheaded by the FTC.” Its members include the key weight-loss industry lobbying groups funded largely by pharmaceutical companies, such as the American Obesity Association and North American Association for the Study of Obesity (NAASO), which merged last September; bariatric industry trade groups, such as the American Society of Bariatric Physicians and the American Society for Bariatric Surgery; weight-loss programs, such as eDiets.com, Jenny Craig, Inc., SlimFast Foods Company and Weight Watchers International, Inc.; key governmental programs supporting the Surgeon General’s 2001 “Call to Action to Prevent and Decrease Overweight and Obesity,” such as Shape Up America!, the Centers for Disease Control and Prevention, and the Federal Trade Commission; university weight-loss centers and obesity research centers; and weight-loss pharmaceutical companies.

The Partnership’s stated goals are to promote obesity as a serious disease that “reduces life span, increases disability and leads to many serious illnesses including diabetes, heart disease and stroke;” that “healthy” weight management involves behavior modification and lifelong “healthful eating in accordance with the Dietary Guidelines for Americans” along with increased physical activity; and that in conjunction with “healthy lifestyles,” medical, pharmacological and surgical interventions may be options for some with “more serious cases of overweight and obesity.” [“Healthy weight” was defined as a BMI of 19-25.] Its members can be found prominently involved in major lobbying efforts over recent years to have “obesity” declared a disease; increase government funding for “obesity” research; get tax breaks for prescription drugs, approved weight-loss programs and bariatric surgeries and make them covered benefits under Medicare and other third party payers, etc.

The preface of the 2002 FTC report was written by Surgeon General Richard Carmona and the introduction was written by George Blackburn, past president of NAASO, Board member of the American Obesity Association, and a trustee of the SlimFast Nutritional Institute.

Following this report, on November 19th the FTC held a workshop of stakeholders on Deception in Weight -Loss Advertising to lay out their plan “to assume a leadership role in addressing deceptive advertising.” The centerpiece of the campaign, it said, was “educational guidance to identify seven common weight-loss claims for products available over-the-counter.”

The results were published on December, 2003 in a FTC staff report entitled: “Deception in Weight-Loss Advertising Workshop: Seizing Opportunities and Building Partnerships to Stop Weight-Loss Fraud.” The Report identified seven bogus weight-loss claims as “Red Flag” claims that would be the focus of future action.

Among the fraudulent claims they decided to go after was that “The advertised product will cause permanent weight loss.” During their discussions, Dr. Susan Yanovski admitted:

Unfortunately, as we all know, weight regain after weight loss is the rule rather than the exception...There are no known supplements, devices, programs that give you a permanent alteration in your body’s metabolism, and there is no way that lost weight will be maintained [after cessation of the intervention], that we know of, in the absence of taking in fewer calories and increasing your energy expenditures.... We also don’t know of any products or supplements that will permanently reduce appetite once the [supplement has] been discontinued.

Their scientific analysis regarding any claim of long-term weight loss maintenance stated:

According to the National Academy of Science, Food and Nutrition Board, “Many programs and services exist to help individuals achieve weight control. But the limited studies paint a grim picture: those who complete weight-loss programs lose approximately 10 percent of their body weight only to regain two-thirds of it back within 1 year and almost all of it back within 5 years.

Another false advertising claim they targeted was that “The advertised product will cause substantial weight loss through the blockage of absorption of fat or calories.” As Judith Stern noted, even with the prescription drug Xenical, people can’t malabsorb enough fat a day to lose a pound a week and there are limits beyond which significant gastrointestinal problems occur. The panel’s scientific analysis stated: “The biological facts do not support the possibility that sufficient malabsorption of fat or calories can occur to cause substantial weight loss.”

As Dr. Yanovski: summarized:

[T]he amount of calories lost [via this mechanism] is really modest, and... if people lose substantial amounts of weight, it’s because, perhaps, to avoid symptoms or because of following a doctor’s advice, they’re also consuming fewer calories.

Another fraudulent claim they identified was that “Consumers who use the advertised product can safely lose more than three pounds per week for a period of more than four weeks.” In their scientific analysis, the panel admitted that:

There are significant health risks associated with medically unsupervised, rapid weight loss over extended periods of time. .. weight loss in this range can create medical risks. In general, “the more restrictive the diet, the greater are the risks of adverse effects associated with weight loss.”...Some very low calorie diets can be nutritionally inadequate and result in serious injury or even death.

The final falsehood they identified was “The advertised product will cause substantial weight loss for all users.” Their scientific analysis noted that: “Even approved drugs for weight loss always have a high level of non-responders, and even gastric surgery for obesity is not successful 100 percent of the time.”

I highlight these claims because readers will immediately recognize them among advertisements, promotions and endorsements for weight-loss prescription medications, weight management programs and bariatric surgeries.

The 2003 report concluded that the goal of their initiative is “to stop the dissemination of over-the-top, outrageous weight-loss advertising.”

In OTC products.

No mention was made of monitoring their own industries and interests for such claims. The true motives behind this campaign in weakening their competition were suggested in their concluding comments:

Legitimate businesses lose because the competitive environment is muddied, making it difficult, if not impossible, for consumers to select the best products available. The dialogue between the FTC staff and the private sector since the release of the Weight-Loss Advertising Report has reaffirmed that we share a common goal of reducing current levels of false weight-loss advertising.

Based on the results of the continued monitoring, the staff will make further recommendations to the Commission as are necessary and appropriate, including recommendations that the Commission institute actions seeking preliminary and permanent injunctive and monetary equitable relief against advertisers who promote their products through false and deceptive claims.

Every Science Panel member who participated in the drafting of the FTC published report and its anti-fraud initiative had a conflict of interest. The Science Panelists included George Blackburn; Judith Stern (former President of NAASO and VP and founder of AOA); the founder and chief science officer of the world’s largest sports nutrition company; two directors of hospital obesity and weight-loss centers; two additional NAASO members; the chairman of the Board of the American Society of Bariatric Physicians; the medical director and VP for research and medical education for Slim Fast Foods Company; a director at the National Institutes of Health who co-lead the development of the Surgeon Generals’ Call to Action on obesity; and the Executive Director of the National Task Force on Prevention and Treatment of Obesity under the NIH. The Industry Panelists included representatives of the world’s largest home fitness and exercise equipment company, dietary supplements, Slim Fast, Jenny Craig, the National Nutritional Foods Association, and others.

True to their word, they continued to monitor and make recommendations for injunctive and monetary relief against OTC advertisers. In November 2004, the FTC launched “Operation Big Fat Lie,” which they described as a “law enforcement sweep against six companies making false weight-loss claims in national advertisements.” The FTC staff also conducted a non-scientific Weight-Loss Advertising Survey: 2004 examining OTC products and issued its results in an April 11, 2005 press release. While noting a significant drop in fraudulent weight-loss advertising, they stated 15% of the ads were still making a false Red Flag claim.

Which brings us to this past week’s actions against four OTC weight-loss companies. The FTC states: “The FTC works for the consumer to prevent fraudulent, deceptive and unfair business practices in the marketplace.” One can only ask if these latest actions were done in the interest of consumers or someone else.

© Sandy Szwarc 2007

See companion stories: Prescription diet pills: a history of FDA favor