Cracking Down on Misleading Ads?>
Expert Q&A

Cracking Down on Misleading Ads

by Jeanine Barone  

Mary Engle is Associate Director for Advertising Practices at the Federal Trade Commission (FTC). Among the many responsibilities of this division is regulating advertising claims on over-the-counter drugs, dietary supplements, and other health products. Here she discusses the FTC's role in tackling fraudulent and misleading ads.

How big of a problem is misleading or fraudulent health advertising in the U.S.?

I think it’s very concerning, because it’s so important for consumers to get accurate health information when they have an issue that they need to address. What we often see with misleading or fraudulent health advertising is that consumers are being offered a miracle cure or a silver bullet for a problem that can’t be solved that easily. It not only makes consumers waste their money on something that doesn’t work, but they also may not take steps they need to take to solve their health problem. I don’t have an exact estimate, but I think it’s safe to assume that consumers spend in the hundreds of millions to billions of dollars annually on products that turn out to be fraudulent or ineffective.

Can you discuss some noteworthy recent actions of the agency against misleading or fraudulent health advertising?

One example is a case we settled with a company over a product called Supple, which was a powder that you could make into a drink. The product, which contains glucosamine and chondroitin, was purported to treat pain, particularly the pain of arthritis, as well as to be able to rebuild your joints or cartilage. It was presented almost like a miracle in terms of relieving chronic pain. It was sold via infomercials that were on television and the radio all the time. I think it was an important case because glucosamine and chondroitin have been marketed as arthritis treatments for years, and people really believe they are effective for joint pain, but the evidence isn’t there. The majority of good studies have shown that glucosamine and chondroitin do not work for arthritis pain and do not work to rebuild your joints. Our settlement with the company requires that in the future they have good clinical studies to back up any disease-related claims they may make. In addition, when we settle cases, we try to get money back for consumers. In this case, we were able to get a few hundred thousand dollars back for consumers who had bought the product.

Another example is supplements that claim to help with opiate withdrawal. One company that recently settled with the FTC is called Withdrawal-Ease. It contained a cocktail of herbal ingredients, including lemon balm, passionflower, and valerian. The name clearly suggests that the product eases withdrawal symptoms. But we alleged that the company lacked adequate evidence that it worked. This is a serious problem. We have an opiate addiction epidemic in this country, and there are prescription drugs that are proven to help with withdrawal. Getting off of opiates is something that should be done under the supervision of a physician, not on one's own. This is an example of misleading advertising that may deter consumers from getting or using treatments that work.

What are some tactics that companies use to trick consumers or otherwise skirt the rules?

One of the things we see a lot is ads that talk about “scientific breakthroughs” or use a lot of jargon to explain how the product works and what its mechanism of action is in scientific terms. Another technique we see is the use of compelling consumer testimonials. Often they’re from people who have been experiencing a problem, sometimes for a long time—they are overweight, for example, and have tried every diet there is and never been successful—and then they have amazing success losing weight with the advertiser’s product. But these testimonials are sometimes completely made up, or greatly exaggerated. Or the person may have had success but not necessarily due to the product, but rather because they did other things while using it, like eating a reduced-calorie diet and exercising.

Some ads for health products are made to look like editorial content, even though they're really sponsored by the advertiser. Is this deceptive?

This is an important issue that we have addressed in several cases. The FTC says that advertising needs to be identifiable or recognizable as advertising. It can’t be disguised as editorial content. Advertisers are under an obligation to make sure that whenever they’re promoting their product in whatever medium it is, consumers can recognize it as advertising.

For example, we settled a case a couple of years ago with a company called Nourish Life that was promoting a dietary supplement called Speak as helping children with speech disorders to be able to speak. It contained a number of different vitamins. There was a compelling testimonial from the parent of a child who was five years old and who, according to the parent, couldn’t speak until she gave him the supplement, at which point he began talking in complete sentences. The company also ran a website called [since taken down], and because that’s the name of a real speech disorder, it looked like it was an independent site that provided research and information on apraxia. But in fact it was a disguised ad for Speak. In that case, we alleged that not only did the company make deceptive claims about what the supplement could do, but also that the format of the advertising was deceptive.

In another case, which we settled in 2016, a company called Smart Click Media was providing misleading “Doctor Trusted” seals to websites that sold dietary supplements. For a fee, the company would allow the website to display the seal, which if clicked led to a statement saying that an independent medical doctor had evaluated the products and that the website was making “reasonable science-based health claims.” But the seal turned out to be meaningless. A couple of doctors were paid just to give the site a once-over and see if it had a return policy and displayed an address and phone number. But our case alleged that they didn’t evaluate whether the sites had proof for the health claims they made for the products.

I’ve heard that bloggers are sometimes invited to and encouraged to post to social media from events sponsored by pharmaceutical companies, often for financial compensation. But it may not be clear to the consumer that the blogger is being paid or otherwise incentivized to post. How do you deal with this?

In a case like that, the drug company should make sure that the tweets or other social media posts, such as on Instagram or Facebook, state that they are sponsored. By law, any paid-for advertisement has to be disclosed as such. And a tweet counts as an ad if it’s being paid for by the company—either by directly paying the blogger or providing valuable incentives for them to promote the company and its product. If the blogger or whoever is promoting the product doesn’t disclose that they are being compensated, both they and the company are potentially liable.

Typically in our investigations we'll go after the advertiser first, in this case the drug manufacturer. But we would also look at the public relations firm or agency that put on the event, if the drug company was working with one. And the individual blogger or people posting may also be responsible. We recently sent a bunch of letters to people with a lot of followers on Instagram who were posting photos and not disclosing that they were being paid by brands to do so. This didn’t involve health and wellness products specifically. But we had to remind the individuals that they are obligated to disclose that they are sponsored.

What do you think has been the FTC’s most important victory against false or misleading advertising during your tenure?

I would say the most important case was our lawsuit against the pomegranate juice Pom Wonderful, in which we challenged ads that claimed that drinking Pom Wonderful could treat or prevent heart disease, prostate cancer, and erectile dysfunction. They did not settle with us, so we had to litigate that case. We won and they appealed it. And we won in the DC Circuit Court of Appeals. They asked for the Supreme Court to review it, and the Court refused. So the case is over.

What was important about that case was that under FTC law the same rules about advertising apply no matter what kind of product you are. So just because the juice was a food and not a pill didn’t mean that they could get away with making unsupported claims. They still needed to have sound science to back up what they were saying—which in this case would have been randomized controlled trials to prove the juice could prevent or treat heart disease, prostate cancer, or erectile dysfunction.

What can consumers do to protect themselves from false or misleading advertising?

Always come to advertising claims with a skeptical eye. If you see mention of a miracle breakthrough or something only now becoming available in the U.S. when it was just in Europe before, or there’s a lot of scientific jargon, be skeptical of those ads. Do your health research on reputable websites that you can trust, such as those run by the NIH or other government agencies, or by academic institutions. If you buy a product, pay with a credit card so you can reverse the charge if needed.

Also, be very careful about free trial offers. We see con artists will say there’s no risk, just try it for $4.99 and if you’re not satisfied, you can return it in 30 days and you’ll get your money back. But that won’t be the case. Once the company has your billing information, they may start charging your credit card monthly without your realizing it, or taking auto-payments from your bank account. Or they might do auto-ship and continue to send you something each month even though you didn’t agree to it. It can be difficult or impossible to return the products once you have them because the companies have so many restrictions on how to return them. We’ve also seen many cases of fraudulent billing with these companies. If any of these things happen to you, you can file a complaint through the FTC website.

Also see Supplement Claims: What’s Allowed and 10 Ways to Spot Health Quackery.