The latest companies to settle with the Federal Trade Commission (“FTC”) over false claims about weight loss are Norm Thompson Outfitters and Wacoal America; both agreed to pay a total of $1.5 million in consumer refunds for marketing and selling caffeine-infused “shapewear” that falsely promised to reduce fat and cellulite. See Norm Thompson Outfitters Consent Order and Wacoal America Consent Agreement.
FTC continues crack down over deceptive advertising
The FTC filed separate complaints against each company alleging that there was no scientific basis for either company’s claim that its caffeine-infused garments would reduce body size or eliminate cellulite. According to the complaints, both companies relied on unblinded, uncontrolled clinical trials “with significant methodological flaws” and then exaggerated the results.
Oregon-based Norm Thompson sold bike shorts, tights, and leggings under the brand name Lytess, which advertised that wearers would “[l]ose 2 inches off hips and 1 inch off thighs in less than a month” and “without effort.” The company claimed the product worked because “caffeine metabolizes and dehydrates fat cells” and “botanicals flush out toxins,” according to the FTC complaint.
New Jersey-based Wacoal America sold a similar caffeine-infused garment –the iPant—that the FTC says also claimed to reduce fat and cellulite. The company recommended that consumers wear the garment 8 hours a day for 28 days, claiming that “test results show most women reported… a reduction in thigh measurement.”
The FTC ordered Norm Thompson and Wacoal America to pay $230,000 and $1.3 million, respectively, and banned both companies from claiming that any garment containing any drug or cosmetic causes substantial weight or fat loss or reduces body size. Both settlement orders also ban the companies from claiming that any drug or cosmetic reduces fat or cellulite, unless the claim is not misleading and can be substantiated by competent and reliable scientific evidence.
The FTC testified before the Senate Commerce Subcommittee earlier this year that marketers increasingly rely on “erroneous” and “fabricated” data to sell their products. “Caffeine-infused shapewear is the latest ‘weight-loss’ brew concocted by marketers,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection. “If someone says you can lose weight by wearing the clothes they are selling, steer clear. The best approach is tried and true: diet and exercise.”
Commentary
The settlements are part of the FTC’s ongoing effort to stop marketers fro
m using deceptive advertising to sell weight loss products. Earlier this year, the FTC announced a special law enforcement initiative that specifically targets weight loss products involving food additives and dietary supplements. Under this initiative, the FTC has brought charges against a number of companies selling weight loss products, including the marketers of Sensa, Almond Beautiful Shape and Almond Shaping Delight, and HCG Diet Direct.
Sources: In the Matter of Norm Thompson Outfitters, FTC File No. 132 3094; In the Matter of Wacoal America, Inc., FTC File No. 132-3095; FTC Press Release (Sep. 29, 2014); FTC Press Release (January 7, 2014)
This article was prepared by Lidia Niecko-Najjum (+1 202 662 0278 / lidia.niecko-najjum@nortonrosefulbright.com ) of Norton Rose Fulbright’s Life sciences and healthcare sector and Savannah Wiseman (+1 202 662 4605/ savannah.wiseman@nortonrosefulbright.com) of Norton Rose Fulbright’s Washington DC office.
