The Federal Trade Commission (“FTC”) recently asked federal courts to shut down ten websites that touted the purported benefits of acai berry weight-loss products. These were not your average promotional sites: Each was convincingly designed to have the look and feel of a news reporting site. For example, the headline of one site read, “Acai Berry Diet Exposed: Miracle Diet or Scam?” and its sub-headline stated, “As part of a new series: ‘Diet Trends: A Look at America’s Top Diets,’ we examine consumer tips for dieting during a recession.” The accompanying article (ostensibly) discussed a reporter’s own experience with acai berry supplements, claiming to have lost 25 pounds in four weeks.
The FTC has charged that none of this was true and that the sites were not objective news sites but, rather, advertisements. Moreover, the alleged deception did not start and end with the sites’ format. In the words of David Vladeck, Director of the FTC’s Bureau of Consumer Protection, “Almost everything about these sites is fake. The weight loss results, the so-called investigations, the reports, the consumer testimonials, and the attempt to portray an objective, journalistic endeavor.” Accordingly, the FTC has charged the sites with a litany of unlawful practices, including that:
- They made false and unsubstantiated claims that acai berry supplements cause rapid and substantial weight loss;
- They falsely claimed that independent tests demonstrate the supplements’ effectiveness;
- They falsely claimed endorsement from legitimate news organizations, including ABC, Fox News, CBS, CNN, USA Today, and Consumer Reports;
- They posted comments to their “articles” that were represented as coming from actual consumers, but did not; and
- They failed to disclose their financial incentive to drive consumers to the sites that made the sales. The targeted sites received commissions on consumers’ purchases, a fact that affects their objectivity about the product.
These final three charges represent violations of various sections of the FTC’s Endorsement Guides. Although the Guides do not have the force of law, they provide advertisers with important guidance about how the FTC applies its deception authority to the use of endorsements, testimonials, and related practices.
The FTC takes the alleged deception very seriously. It asked the court to temporarily halt the allegedly deceptive tactics and to freeze the sites’ assets pending trial. It will eventually ask the courts to permanently prohibit the allegedly deceptive claims and require the companies to give refunds to consumers who purchased the supplements.