In a wide-ranging hearing about ‘protecting consumers from false and deceptive advertising of weight-loss products’ that also involved members of the FTC, NPA, CRN, and advertising watchdogs, Dr Oz said that by not talking about specific companies he failed to give his audience an idea of where to go to buy high quality products .
“I wanted to stay above the fray,” he told the United States Senate Committee on Commerce, Science, and Transportation’s Subcommittee on Consumer Protection, Product Safety, and Insurance. “So that opened up a huge market for folks to make stuff and use my name to try to sell. I left my audience hanging by trying to do the ethical thing.”
When asked why he doesn’t just name the ‘good quality companies’, Dr Oz replied: “Doctors shouldn’t sell products.”
“For my colleagues at the FTC, I realize I have made their jobs more difficult.”
The hearing was chaired by Senator Claire McCaskill (D-MO) to examine the deceptive advertising and marketing practices of weight-loss products and their effects on American consumers.
With about 70% of US adults obese or overweight and looking for solutions it is perhaps unsurprising that more consumers were victims of fraudulent weight-loss claims than of any other specific fraud type, according to Mary Engle, associate director for advertising practices at the Federal Trade Commission (FTC).
Testimony from the FTC stated: “The endless flood of unfounded claims being made in the weight-loss industry vividly illustrates the challenges we, and consumers, are up against.”
The testimony also noted that despite consumer spending of $2.4 billion on weight-loss products and services last year, there is very little evidence that pills or supplements alone will cause sustained, meaningful weight loss – without changes to diet and lifestyle.
Operation Failed Resolution
In the past 10 years, the FTC has brought 82 weight-loss-related law enforcement actions, and since 2010, it has collected nearly $107 million for consumer restitution. Earlier this year the FTC announced a new law enforcement initiative called Operation Failed Resolution to stop national marketers that used deceptive advertising claims to peddle fad weight- loss products.
The FTC is using various initiatives to counter fraudulent and deceptive practices, and today launched a new consumer video and game – the FTC Weight Loss Challenge – designed to help consumers think critically about weight-loss products and claims.
Sen Amy Klobuchar (D-MN) asked FTC's Ms Engle if additional FDA regulation was required, to which Engle responded: “I cannot speak for the FDA. In understand they have their hands full with adulterated dietary supplements, products that actually contain prescription drugs, and they’re putting their efforts there.”
Also providing testimony at the hearing were Dr Daniel Fabricant, CEO of the Natural Products Association, Steven Mister, president and CEO of the Council for Responsible Nutrition, Lee Peeler, president of the Advertising Self-Regulatory Council at the Better Business Bureau, and Rob Haralson, executive director of TrustInAds.org.
CRN’s Mister continued his tale of two industries with “legitimate manufacturers who responsibly produce products that work and make claims for their products within the bounds of the law, and unscrupulous players who prey on consumer desperation and the insatiable desire to be thin, and will say almost anything to make a quick profit.”
Acknowledging weight management as a critical issue in the United States, Mister pointed to the fact that there are dietary supplements that can serve as helpful weight loss tools when used in combination with other healthy habits. He emphasized that, in their pursuit to achieve a healthy weight, consumers deserve to receive “truthful, accurate and non-misleading information on dietary supplements and nutritional products.”
Take down the fly-by-nights
Dr Fabricant said that the NPA supports the efforts high-profile efforts by FTC but said the industry still wrestles with internet advertising and fly-by-night issues.
“We believe one area for consideration would be to encourage FTC to use existing authorities more on the front end: to be more agile and disciplinary to companies without regard to revenues,” he said. “In other words, we think that more aggressive enforcement of the internet fly-by-nights needs to be just as important a priority for FTC as the large-scale enforcement actions which we also support.
“For example, FTC currently has as part of its enforcement arsenal very effective tools like misdemeanor prosecutions and civil monetary penalties which it uses very well for those already under consent orders or who have violated other applicable laws. But in our view, it appears that there is a predilection by regulators to pursue these more sizable and protracted cases, perhaps at the expense of more regulatory muscle on the front end against companies of any size or revenue stream.
“A more balanced approach would both help curb the deceptive advertising and also serve as a helpful deterrent for other bad actors who might think they can get away with it. If FTC doesn’t take down any fly-by-nights, more will unfortunately be tempted to get into the game.”
Addressing the issues
Both Dr Fabricant and Mr Mister talked about their association’s efforts to self-police advertising claims of dietary supplement marketers, with both the Truth in Advertising (TIA) program (managed by the Natural Products Foundation) and CRN’s program with the National Advertising Division (NAD) at the Council of Better Business Bureaus resulting in successes in addressing deceptive or fraudulent advertising claims.
In his testimony CRN’s Mister outlined four significant steps for the Senate subcommittee to help address the issues:
1. Expanding and strengthening voluntary programs among manufacturers and marketers of weight loss products, like CRN’s initiative with the NAD.
2. Increasing resources and priorities for the enforcement of existing legal requirements by both the FTC and FDA.
3. Calling on media outlets and online retailers to conduct their own advertising review before accepting advertising with claims that are illegal and simply ‘too good to be true’.
4. Educating consumers to be realistic about weight loss strategies and expectations to make them less vulnerable to outrageous and unsupported claims.
The Dr Oz effect
Despite testimony from each member of the panel it was the celebrity in their midst who received the lion’s share of the attention. Sen McCaskill grilled Dr Oz on his apparent sensationalizing of the effects of green coffee bean, raspberry ketone, and Garcinia cambogia on his show.
“I cannot figure this out, Dr Oz” said Sen McCaskill. “I get that you do a lot of good on your show. I understand that you give a lot of information that is great information about health in a way that is very understandable. But I don’t get why you feel the need to say this stuff because you know it’s not true. So why when you have this amazing megaphone and this amazing ability to communicate, why would you cheapen your show by saying these things?”
In response, Dr Oz said that he personally believes in the items he talks about on his show. “I recognize that oftentimes they don’t have the scientific muster to pass as fact. I have given my family these products.”
“The scientific community is almost monolithic against you in terms of the efficacy of a few products that you have called miracles,” replied Sen McCaskill.
“When you feature a product on your show it creates what has become known as the ‘Dr. Oz Effect’ — dramatically boosting sales and driving scam artists to pop up overnight using false and deceptive ads to sell questionable products,” she said.