What’s That Charge on My Mobile Phone Bill? The FTC Wants to Know

“Cramming” – while it sounds like the experience of being in the middle row of a cross-country flight – actually refers to unauthorized charges on phone bills. Residential and business telecommunications customers have experienced cramming on their wireline bills for years, particularly for premium and other pay-per-call services. And the FTC has brought nearly two dozen cases against those companies.

With so many U.S. consumers using mobile phones (and many replacing their wireline phones and relying on wireless service exclusively), cramming has migrated to mobile phone bills. We have previously discussed the FTC’s ongoing review of mobile payments and the agency’s continuing concerns with cramming practices.

Last week, the FTC filed its first legal action to shut down a mobile cramming operation. In federal court in Georgia, the FTC alleges that since 2011, Wise Media, LLC, its CEO Brian Buckley, and its owner Winston Deloney have made millions of dollars by placing unauthorized charges for premium text messages services offering “horoscopes, flirting, love tips and other information” on consumers’ mobile phone bills. The FTC’s complaint also names Concrete Marketing Research, LLC, a company owned by Deloney, as having received funds earned through the allegedly unfair and deceptive practices.

According to the FTC, consumers did not “opt in” to receive these text message services, for which Wise Media charged $9.99 per month. The charges appeared on the bills and were repeated each month. Many consumers did not notice the charges and simply paid them. Some consumers noticed the charges but had great difficulty finding a contact for Wise Media, according to the complaint. Other consumers contacted the company, indicating they had not authorized the charges, but were still charged. Still others allegedly were told they would receive refunds, but Wise Media never issued those refunds. Instead, the underlying mobile phone carriers often ended up refunding money to complaining customers. The FTC noted that mobile phone carriers had experienced a high rate of complaints on Wise Media charges. One unnamed major phone carrier had even terminated Wise Media based on its excessive rates.

The FTC’s complaint charges that Wise Media and the other defendants violated Section 5 of the FTC Act by representing that consumers were obligated to pay for premium text services they never ordered. According to the FTC, these representations were false or misleading statements, constituting deceptive acts or practices under Section 5. Further, the complaint states that the placing of charges on consumers’ mobile phone bills without consumers’ “express informed consent” constituted unfair acts and practices also prohibited by Section 5.

The agency is seeking substantial relief and penalties from Wise Media and the other defendants. The FTC’s requested relief includes a request for a temporary and preliminary injunction to prevent future violations of the FTC Act by defendants, an asset freeze, and the refund of monies paid and “the disgorgement of ill-gotten monies.” In fact, after the filing of the complaint, Wise Media and the other defendants entered into a stipulation with the FTC agreeing to a temporary restraining order, an asset freeze, and other relief. The court also ordered that a receiver be appointed to oversee Wise Media’s assets and is requiring financial disclosures by the defendants.

This action signals that the FTC is continuing to monitor closely the mobile payment marketplace and that it will use its broad Section 5 authority to curb alleged deceptive practices in this medium. In fact, on May 8, the FTC staff will host a roundtable discussion on preventing mobile cramming, which will feature consumer advocates, industry leaders, and government regulators. It will be interesting to see what actions the major mobile carriers may propose, as the carriers have been on the receiving end of many of the consumer complaints (and refunds) resulting from third-party charges.

A Q&A With Jeff Ifrah on the FTC’s Latest Draconian Tactics

Some lawyers who deal regularly with the Federal Trade Commission in investigations of allegedly false and deceptive online advertising have noticed that the agency is beginning to take steps in these investigations that are unprecedented and draconian – and that judges seem to be going along. Below is a set of questions and answers with Jeff Ifrah, founding partner of Ifrah Law, on these new enforcement methods.

1. What is the first thing that a lawyer representing a company being probed by the FTC on false-advertising charges can expect to see?

IFRAH: Agency lawyers will go to a federal district judge with a copy of a temporary restraining order (TRO) for the judge to sign on an ex parte basis (without the defendant or its lawyers being present). Judges are allowed to do this as long as a hearing is set in a few days for a preliminary injunction, at which the defendant is represented. Meanwhile, the company is essentially barred from doing business by the terms of the TRO.

2. What is the FTC’s usual next step?

IFRAH: The agency will then go before the same judge with a draft of a preliminary injunction that is pretty much identical to the temporary restraining order. These injunctions basically require the business to continue to remain at a standstill until a trial is held and a settlement is reached. In addition, they require the company to disclose on all its web sites that it is being investigated for false and deceptive practices and to disclose online all of its sensitive financial information and that of its owners. Very often, the defendant will not contest this injunction request by the FTC. It is remarkable how many lawyers simply capitulate and agree to these draconian orders and set their clients up to fail.

3. What’s wrong with that? Isn’t the injunction lifted when the defendant agrees to settle the case?

IFRAH: Yes, but by that time, it may be too late, and the company may have gone out of business as a result of the restrictions that were imposed on it by the injunction and as a result of the disclosures that it had to make.

4. Are there other problems with these preliminary injunctions?

IFRAH: Yes. The FTC usually asks for a preliminary injunction with many standard features, and the judge usually grants it. But no two cases or defendants are the same. The courts are not taking into account the fact that different situations require different results. Instead, the injunctions are overbroad and reach behavior that is beyond what is alleged in the complaint.

Some of these restraining orders and injunctions restrict how much money a defendant can spend in a month or what type of online advertising it can use while the case is pending. Other injunctions require affirmative behavior, such as a requirement that the defendant report to the FTC every time it creates or operates any type of business. In either case, the defendant is forced to open its entire existence to the FTC, and everything it does is subject to scrutiny.

Another problem with standard, overbroad injunctions is that a defendant may become uncertain as to what it must do to prevent being held in contempt of court for non-compliance. The language in the injunction is often so vague and undefined that the FTC can act in its discretion to find a defendant in contempt.

5. And is that the end of the story?

IFRAH: No, unfortunately, plaintiffs lawyers often look to copycat an FTC action, and as a result companies may then have yet another headache to deal with, if they haven’t already been irreparably damaged by the FTC’s actions.

FTC Revises Online Advertising Disclosure Guidelines: Say It and Say It Clearly

This week, the FTC released updated guidance to its 2000 “Dot Com Disclosures,” a guide covering disclosures in online advertising. The online world has certainly changed in 13 years, and the new guidelines, available here, cover advances in online advertising, including mobile advertising.

One central theme still prevails: existing consumer protection laws and rules apply no matter where you offer products and services: newspapers, magazines, TV and radio commercials, websites, direct marketing, and mobile marketing. Thus, the basic principle applies that companies must ensure that their advertisements are truthful and accurate, including providing disclosures necessary to ensure that an advertisement is not misleading. Further, the disclosures should be clear and conspicuous – irrespective of the medium of the message.

In determining whether a disclosure is “clear and conspicuous” as the FTC requires, advertisers should consider the disclosure’s placement in the ad. Importantly, the 2000 guidelines defined proximity of disclosures to ads as “near, and when possible, on the same screen.” The new guidelines state that disclosures should be “as close as possible” to the relevant claim. The closer the disclosure is to the claim, the better it is for FTC compliance purposes.

Advertisers should also consider: the prominence of the disclosure; whether it is unavoidable (e.g., consumers must scroll past the disclosure before they can make a purchase); whether other parts of the ad distract attention from the disclosure; whether the disclosure should be repeated at different places on the website; whether audio message disclosures are of sufficient volume and cadence (e.g., too fast); whether visual disclosures appear long enough; and, whether the language of the disclosure is appropriate for the intended audience. The FTC suggests avoiding “legalese” or technical jargon.

Mobile marketers should take note that the FTC provided some additional guidance regarding disclosure issues particular to mobile marketing. In particular, the FTC stated that the various devices and platforms upon which an advertisement appears or a claim is made should be considered. For example, if the advertiser cannot make necessary disclosures because of the limit of the space (e.g., in a mobile app), then the claim should not be made on the platform.

The FTC does permit hyperlinks for disclosures in certain circumstances. However, hyperlinks must:
- be obvious
- be labeled appropriately to convey the importance, nature and relevance of the information they lead to (such as “Service plan required. Get service plan prices here”)
- be used consistently
- be placed as close as possible to the relevant information the hyperlink qualifies and made noticeable
- take consumers directly to the disclosure after clicking

Companies should assess the effectiveness of the hyperlink by monitoring click-through rates and make changes accordingly. The agency also suggests that advertisers design ads so that scrolling is not necessary to find a disclosure. The FTC discourages hyperlinks for disclosures involving product costs or certain health and safety issues (similar to its 2000 guidelines).

The FTC suggests that companies display disclosures before a consumer chooses to buy a product or service – in other words, the disclosure should appear before a consumer adds a purchase to his or her “shopping cart” or before the consumer clicks “buy now.” The FTC also cautions that necessary disclosures should not be relegated to general “terms of use” and similar contractual terms on a website. Further, because so many consumers have set their computers to prevent “pop ups,” the FTC discourages companies from placing disclosures in “pop ups.”

Probably the most helpful part of the new guidelines are the 22 different examples of proper/improper disclosures the FTC provides at the end of the guidelines. As companies move forward in promoting products and services online, particularly on mobile platforms, reviewing these examples along with the general principles of truthful and complete statements in advertising may save a company from an FTC enforcement action.

Organizations are increasingly marketing their products and services on mobile platforms. Advertisers should take note that special considerations apply in the mobile marketplace, especially the space and text size limitations. If a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise violative of an FTC rule, it must be clear and placed next to the offer. If that can’t be done, the safest course would be to move the offer to another platform, such as a traditional website. The FTC and the states have demonstrated that they take a keen interest in mobile marketing and they will be watching claims and disclosures in the smartphone/tablet universe.

FTC Remains Tough on ‘Robocalls’ with New Enforcement Case

Once again, the FTC has completed a major enforcement action against the illegal use of robocalls, a form of prerecorded, computerized telemarketing calls. This time, the action resulted in a $1.1 million civil penalty against Roy M. Cox, an individual whom the FTC considered to be the architect of an illegal robocall operation. The FTC alleged that Cox and several companies he controlled were using robocalls to market credit card interest-rate reduction programs, extended automobile warranties, and home security systems. Due to Cox’s inability to pay, the dollar penalty has been waived and Cox has been permanently banned from participating in any telemarketing activities.

According to the December 2011 complaint, Cox and his co-defendants were not only making prerecorded sales calls to consumers without their consent, in violation of the Telemarketing Sales Rule, but they were also illegally disguising their identity on customers’ caller ID displays. Instead of displaying the companies’ actual name and contact information, generic names such as “CARD SERVICES,” “CREDIT SERVICES,” or “PRIVATE OFFICE” would appear on a recipient’s caller ID. This tactic, known as “caller ID Spoofing,” is also prohibited by law.

As we reported in October, the FTC has been struggling to keep pace with these technological advancements, so it called on the public to come up with a solution. The commission offered a $50,000 prize to whoever could design a program to screen out illegal robocalls. The challenge was open to the public for three months and garnered nearly 800 submissions. The agency expects to announce a winner in early April.

The case against Cox and many of the FTC’s previous enforcement actions indicate that the FTC may be most concerned with robocalls that use patently deceptive advertising to lure in vulnerable, unsuspecting customers. Companies offering fraudulent credit card services, auto-warranty protection, and medical plans have made themselves an easy mark for the FTC, because of the likelihood that they will be reported by recipients or advocacy groups. However, companies interested in using computerized telemarketing must remember that even innocuous content can violate the Telemarketing Sales Rule (and the Telephone Consumer Protection Act) if recipients have not given prior written consent to receive such calls. Also, any company engaging in telemarketing should be subscribing to the federal “do not call” list and scrubbing its calling lists against the federal list. Some states still maintain their own lists as well. In addition to FTC or FCC enforcement, illegal robocalling can result in costly civil litigation, including class actions.

NFL Sacks Football Fan’s Effort to Trademark ‘Harbowl’

When the Baltimore Ravens and San Francisco 49ers won their NFL conference championship games, a Super Bowl matchup emerged with a great storyline — the opposing head coaches are brothers. An interesting legal question has also developed regarding the right to trademarks associated with the match-up between brothers.

Last February, Roy Fox, a football fan in Indiana, said he spent more than $1,000 to file for the trademarks “Harbowl” and “Harbaugh Bowl” in anticipation that Jim Harbaugh’s San Francisco 49ers and John Harbaugh’s Baltimore Ravens might meet in the Super Bowl. Fox said he remembered how former Los Angeles Lakers Coach Pat Riley made money by trademarking the term “Three-Peat” and thought that if the brothers were to meet in the Super Bowl he could make some money selling some T-shirts.

Fox applied for a trademark in February. In July, the United States Patent and Trademark Office (USPTO) published the trademark request, which is the standard procedure used by the office to see if anyone is opposed to a request.

In August, the NFL got the USPTO to extend the period of time allowed for filing an objection. At the same time, the NFL sent Fox a note saying that it was concerned that his recent trademarks could be easily confused with the NFL’s trademark of the Super Bowl or that “it may cause the public to mistakenly believe that your goods and/or services are authorized or sponsored by or are somehow affiliated with the NFL or its Member Clubs.”

The NFL continued to push Fox to drop his trademark application and began using more aggressive language in its correspondence.

“If you are still interested in resolving this matter amicably and abandoning your trademark application, please contact me as soon as possible,” NFL Assistant Counsel Delores DiBella wrote to Mr. Fox in October. She warned that otherwise, the NFL “will be forced to file an opposition proceeding and to seek the recoupment of our costs from you.”

Fox said he made a few requests of the league including a reimbursement of money he spent on the trademark applications, Indianapolis Colts tickets, and an autographed picture of NFL Commissioner Roger Goodell. Fox said that all of his requests were denied. Fox said he then dropped the trademark applications in October when additional correspondence from the league became more threatening and because he did not want to go to court to fight the NFL.

Trademark law protects a trademark owner’s exclusive right to use a trademark when use of the mark by another would be likely to cause consumer confusion as to the source or origin of the goods.

In order for the NFL to prevail on a challenge to Fox’s trademark, the league would have to show that the use of the “Harbowl” or “Harbaugh Bowl” mark would “cause a likelihood of confusion” as to the affiliation, connection or association of the mark with the marks owned by the NFL, or as to the origin, sponsorship, or approval of defendant’s goods services or commercial activities. Generally speaking, a “likelihood of confusion” exists when consumers viewing the allegedly infringing mark would probably assume the product or service it represents is associated with the source of a different product or service identified with a similar mark.

The NFL’s strong-arm tactics were successful in getting Fox to abandon his trademark application. The threat of a lengthy and costly legal battle is often enough to deter people from pursuing trademarks that another trademark owner – in this case the NFL – considers to be possibly infringing, even if the USPTO or a court may not ultimately agree.

It is unclear who would have prevailed had this case been contested, but it seems unlikely that the NFL ultimately would have prevailed. While it is clear in some sense, with the benefit of knowing now that the Ravens and 49ers are in the championship game, that “Harbowl” or “Harbaugh Bowl” is referring to the “Super Bowl” (which is a trademark owned by the NFL), it likely would not have risen to the “likelihood of confusion” level that would be needed for the NFL to prevail before the USPTO or in court.

FTC Report Faults App Developers on Data Collection From Kids

The Federal Trade Commission released a report on December 10, 2012, that concluded that mobile apps targeted at children were collecting large amounts of data from children and sharing their information with advertisers without disclosing their practices.

The FTC report examined 400 leading apps designed for kids that were sold in the mobile stores run by Apple and Google. The agency said it is launching an investigation to determine if certain mobile apps developers have violated the Children’s Online Privacy Protection Act (COPPA) or engaged in unfair or deceptive trade practices.

The FTC’s authority over children’s mobile apps comes from laws that prohibit unfair and deceptive acts of commerce, as well as from COPPA, which requires operators of online services for children under 13 to get consent from parents before collecting and sharing personal information, among other requirements.

The report itself does not call for regulatory changes. However, the FTC is reviewing COPPA to determine if it needs to be updated, and is expected to announce updates soon COPPA was enacted in 1998, and FTC officials say the law needs to be changed to reflect the growing prominence of mobile apps and social networking sites used by children. The regulations under COPPA have not been substantially revised since its introduction. COPPA sets forth specific requirements for websites aimed at children, but its guidance on mobile technology is far less clear.

The FTC proposed updating COPPA, but it has been met with pushback thus far from technology companies. The proposed changes could significantly increase the need for children’s sites and apps to obtain parental permission to collect certain types of data, including device IDs, photos, and voice recordings. FTC officials have also emphasized that they consider the exact location of a mobile device to be personal information that would require parental permission to collect.

The FTC report noted that it was particularly concerned with the collection of a user’s device ID, which is a string of letters or numbers that identifies each mobile device. Nearly 60 percent of the mobile apps that the FTC reviewed transmitted the device ID. Some of those apps then shared that ID with an advertising network or other third party, including some apps that disclosed the phone number and location of the device. Additionally, more than half the apps also contained interactive features such as advertising or in-app purchases that were largely undisclosed to parents.

Only 20 percent of the apps reviewed in the report disclosed any information about the app’s privacy practices. FTC Chairman Jon Leibowitz said, “Our study shows that kids’ apps siphon an alarming amount of information from mobile devices without disclosing this fact to parents.”

This week’s report serves as further notice to all mobile app developers that the FTC is monitoring the mobile app market.  App developers, particularly developers that are targeting children, need to review their compliance with FTC guidelines, as well as their overall truth-in-advertising and data privacy policies, to make sure their apps are complying. The FTC has made clear that it will take enforcement actions against industry participants and will continue to aggressively pursue action in the future.

CFPB, FTC Announce Crackdown on Deceptive Mortgage Advertising

On November 19, 2012, the Federal Trade Commission and the Consumer Financial Protection Bureau announced that they have launched a new coordinated effort to protect consumers, focusing on mortgage advertisements that they say are deceptive.

The CFPB and the FTC worked together to review roughly 800 mortgage ads. These ads were produced by entities involved in different aspects of the mortgage process, including mortgage brokers and lenders, lead generators, real estate agents, home builders, and others. The ads were featured on a wide range of media including newspaper, direct mail, email and social media.

The agencies stated that some of these ads had specifically targeted the elderly and veterans.

The letters warned the recipients that they may be in violation of the Mortgage Acts and Practices Advertising Rule (MAP Rule) that took effect in August 2011, which prohibits misleading claims concerning government affiliation, fees, costs, interest rates, payment associated with the loan, and the amount of cash or credit that is available to the consumer. The MAP Rule does not apply to traditional banks, meaning today’s actions affect only non-banks.

The FTC and the CFPB both have enforcement authority over non-bank mortgage ads under the MAP Rule. The agencies stressed that as part of the initiative they are working together to assure that consistent standards are applied across agencies. The agencies will conduct separate investigations focused on different targets to better utilize their resources and avoid double-teaming businesses.

“Working together and applying consistent standards to all types of clients in all types of ads is a very important means of making sure that mortgage advertisers are on notice that they have to comply with the law,” said Thomas Pahl, the assistant director of the FTC’s Division of Financial Practices.

The FTC and the CFPB issued more than 30 warning letters to mortgage advertisers, warning them that their advertisements may be deceptive. Both agencies stated that they have also opened formal investigations into other advertisers that may have committed more serious violations of the law. Violators of the MAP Rule can be subject to civil fines.

“Misrepresentation in mortgage products can deprive consumers of important information while making one of the biggest financial decisions of the lives,” CFPB Director Richard Cordray stated. “Baiting consumers with false ads to buy into mortgage products would be illegal.”

The review of the advertisements revealed several different types of claims that regulators could possibly find misleading, including ads that suggested that a company was affiliated with a government agency, ads that guaranteed approval and offered low monthly payments without discussing the conditions of the offers, and ads offering a low fixed mortgage rate without discussing significant loan terms.

The announcement shows that the FTC and the CFPB are taking an aggressive and proactive look at companies that offer products in the financial services sector. Companies that offer mortgage and other consumer lending products should know that the FTC and the CFPB are paying special attention to them and that their advertisements need to comply with federal regulations.

It’s Not Easy Being Green: FTC’s Revised Green Guidelines May Adversely Affect the Little Guy

Earlier this month, the Federal Trade Commission released its revised Green Guidelines, providing parameters for advertising and marketing claims of supposedly eco-friendly products. The publication completes a two-year revision process that the FTC undertook, involving the updating of guidelines last visited in 1998. The Commission touted the new guidelines as helping marketers “avoid making misleading environmental claims” and leveling the playing field for “honest business people.”

The revised guidelines address 14 categories of claims, including general environmental claims, carbon offsets, certifications and seals of approval, and claims of recyclability and renewability. Under the guidelines, marketers and advertisers are cautioned to avoid general claims that products are green or eco-friendly: “Marketers should qualify general claims with specific environmental benefits. Qualifications for any claim should be clear, prominent, and specific.”

Marketers are further cautioned to disclose material connections to any certifying organization. And when it comes to claims of compostability, degradability, recyclability and other claims about product and packaging content, the FTC advises that marketers be able to substantiate such claims and avoid deceiving consumers by replacing one environmental red flag with another. For instance, the guidelines note that “[i]t would be deceptive to claim that a product is “free-of” a substance if it is free of one substance but includes another that poses a similar environmental risk.”

The FTC’s revisions appear to take on a holistic approach to environmental claims. A company cannot willy-nilly claim that its product or packaging is recyclable if it is only recyclable in limited locations, and it cannot claim it is “green” and made with recycled content “if the environmental costs of using recycled content outweigh the environmental benefits of using it.” The guidelines require the marketer to limit and qualify green claims based on a thorough review of the production, distribution, and disposal stream for the product and its packaging.

In many ways, this new guidance seems fair – it should help ferret out the unscrupulous marketer who wants to charge a premium, or carve a market niche, based on dubious environmental claims.

But how much benefit will the new guidelines bring? The guidelines, in and of themselves, do not truly bring more enforcement power to the FTC. With or without Green Guidelines, old or new, the FTC can bring enforcement actions against marketers for false and deceptive claims – like several enforcement actions from 2009 forward that the FTC highlights on its website. With or without the guidelines, the truly unscrupulous marketer remains subject to FTC oversight and liability.

Our concern is that the guidelines may discourage some well-intentioned market entrants. An entrepreneur may have a good green idea but opt not to pursue it because of heightened advertising and labeling standards. For instance, the FTC guidelines caution companies about the need to provide “competent and reliable scientific evidence” for several categories of environmental claims. That could necessitate big R&D bucks to the exclusion of Mom & Pop.

More importantly, the guidelines could provide more ammunition for big companies to pursue claims against small competitors and effectively shut out upstarts. NAD, the advertising industry’s self-regulatory body, apparently plans on using the guidelines. There have been a host of cases by companies like Clorox and Procter & Gamble taking to task smaller companies marketing eco-friendly alternatives. In the end, while the revised Green Guidelines may be a good faith effort by the FTC to level the playing field and may have some positive impact, it will be important to monitor its unintended consequences.

POM Loses a Round in Its Advertising Dispute With FTC, But Battle Continues

POM Wonderful LLC recently received a setback in its longstanding dispute with the Federal Trade Commission. On Sept. 30, 2012, U.S. District Judge Richard Roberts in the District of Columbia dismissed the juice maker’s declaratory judgment action against the FTC. The judge’s ruling, though, does not put an end to the POM-FTC battle, which is still on appeal in a related administrative proceeding.

POM filed suit in federal district court in September 2010, in anticipation of an impending FTC administrative action. The company challenged what it perceived as agency overreaching, in violation of its First and Fifth Amendment rights, and in violation of the Administrative Procedure Act. The basis of POM’s complaint was the FTC’s use of consent orders with two other companies (Nestle U.S.A. and Iovate Health Systems, Inc.) to establish new and more stringent advertising standards for medical and health claims.

When the FTC waved these consent orders in front of POM (in an apparent attempt to pressure the company into agreeing to tougher standards like Nestle and Iovate), POM responded by thumbing its nose and filing suit in federal court. POM contended that the FTC failed to adhere to the requirements of administrative law that, in order to modify advertising standards, the agency must go through a notice-and-rulemaking process. The FTC subsequently filed its administrative action against the company for alleged failures to adhere to the more stringent standards.

In large part because of the significant overlap of issues between POM’s action in U.S. district court and the FTC’s administrative action, Judge Roberts dismissed the district court case. The judge noted that judicial efficiency militated towards having the dispute play out in the administrative case only: “While the administrative proceeding is not identical to POM’s current action, that forum is ‘perfectly capable’ of determining whether the proposed order exceeds the bounds of the FTC Act, violates the First and Fifth Amendments, and seeks to abrogate the FDA’s power,” he wrote. Other factors in the judge’s holding were (1) that granting declaratory relief would have required the resolution of an anticipatory defense and (2) that POM’s district court action appeared to be filed in part to secure tactical leverage.

As we wrote earlier this year, the administrative law judge already ruled on the parties’ dispute in May. POM touted that ruling largely as a victory because the judge rejected the enhanced advertising standards at issue. However, the FTC and POM appealed the decision before the full commission (POM appealed because the judge still found POM liable under separate standards). Oral arguments in the appeal were held in August, and the outcome of the appeal is still pending.

We find it interesting – and somewhat encouraging for advertisers who are concerned about agency overreaching – that neither the district court action nor the administrative proceeding have rejected on the merits POM’s challenge to the FTC’s use of settlement agreements to effect enhanced standards. Any company that has come under the regulatory microscope can appreciate the tremendous pressure companies face to cooperate with an agency just to get out of hot water – at almost any cost. POM’s bold stance may eventually have the result of reminding regulators to follow the rules set forth for them by the principles of administrative law.

‘Results Will Vary,’ But FTC’s Cases Against Weight-Loss Companies Remain the Same

The Federal Trade Commission recently announced a settlement with Jason Pharmaceuticals regarding its use of consumer testimonials and health benefits claims. Any company that relies on testimonials in its advertising, even a company that like Jason Pharmaceuticals, sells products that often have beneficial health results, must become aware of this settlement.

Jason Pharmaceuticals sells Medifast brand low-calorie meal substitutes. In 1992, the FTC settled a case with Jason for allegedly deceptive weight-loss claims. The settlement order barred Jason from making unsupported claims to consumers about losing weight or keeping weight off. According to the FTC, since at least November 2009, Jason ran ads that featured weight loss claims about low-calorie meal substitutes.

The ads run by Jason Pharmaceuticals prominently featured the use of consumer testimonials. One advertisement stated that:

“When you lose up to 2 to 5 lbs a week with Medifast, you’ll feel terrific. And so will your doctor.

TRUST MEDIFAST.

THE PROGRAM THE DOCTORS RECOMMEND.

Jeff & Maureen lost a combined 169 lbs.!”

According to the FTC, the only disclaimer displayed in most Medifast advertisements containing consumer endorsements was a small, inconspicuous “Results will vary.” The FTC alleged that this disclaimer violated the 1992 order because was insufficient to change consumers’ net impressions that users of these products could expect to achieve the results represented in the advertisements.

As part of the settlement, Jason Pharmaceuticals will have to pay a civil penalty of $3.7 million to settle charges that it violated the previous order by making unsupported claims about its weight loss products.

Under the settlement, Jason is prohibited from misrepresenting that consumers who use any low-calorie meal replacement program can expect to achieve the same results that an endorser does or can lose a particular amount of weight or maintain that weight loss.

In addition, representations in the company’s ads cannot mislead consumers and must be backed up with competent and reliable scientific evidence that includes at least one clinical study. The company is also barred from making any other representations about the health benefits, safety, or side effects of any meal replacement program, unless it’s backed up by scientific research.

The settlement also has a compliance and recordkeeping requirement that for 20 years after the entry of judgment, Jason Pharmaceuticals needs to keep extensive records relating to any marketing or substantiation of any advertising claim.

The FTC continues to push the limits in pursuing enforcement actions. This, for example, is a very aggressive prosecution. People do lose weight using products such as Medifast, and in some instances people have lost significant weight. These ads may have been in violation of the prior settlement, but the FTC decision to pursue this action shows just how far they are willing to go in pursuing enforcement actions.

Because of the FTC’s aggressiveness in cases such as this one, companies that invoke claims of health benefits to consumers need to be sure that these claims are backed by reliable scientific evidence. Companies should also be aware that merely making a flat statement that “results may vary” will likely not help them avoid liability.