Federal Trade Commission v. Bronson Partners, LLC, -- F.Supp.2d --, 2008 WL 2698673 (D. Conn.)
The FTC brought an enforcement action against defendants for the claims made in their ads for Chinese Diet Tea and the Bio Slim Patch. Since defendants conceded liability on the Bio Slim Patch, the court only considered the ad claims made for Chinese Diet Tea, touting it as a weight-loss product. “[W]hen read objectively and in context,” the advertising “virtually guarantees the user that, by drinking the tea, the user will lose large quantities of weight in a relatively short period of time without dieting or exercising.”
The tea, however, is not materially different from any other green tea product on the market.
Defendants nonetheless advertised that the tea “SHEDS POUND AFTER POUND OF FAT-- FAST!” while allowing users to eat their favorite foods. The exemplar ad claimed that the tea “eliminates an amazing 91% of absorbed sugars[;] [p]revents 83% of fat absorption; [d]oubles your metabolic rate to burn calories fast”; et cetera. The ad went on to claim that “clinical trials” proved the weight loss claim (163 patients, all of whom lost between 18 and 75 pounds over 12 weeks) and to “guarantee” the weight loss. It offered “courses” of varying lengths, promising “You’ll lose up to 25 lbs” for the shortest and up to 75 pounds for the longest. There were also a number of testimonials claiming significant weight loss, including “After 10 weeks my weight was down to 104 lbs. I lost weight so fast my doctor ordered me to slow down” and “I have been on the program 6 weeks and have not religiously followed the schedule of a cup of tea after each meal. However, I have gone from 240 lbs. down to 210 lbs.”
Defendants, with the same bald-facedness that characterized the ads, argued that the ads didn’t make the false claims that the FTC alleged. First, they argued that some of the claims were “merely testimonial.” But that doesn’t render it weightless. Indeed, the FTC has long held that a testimonial is an implicit representation that the person providing it had a typical experience with the product. Nor does the case law (or common sense) suggest that consumers interpret testimonials with a more jaundiced eye than they do the rest of an ad.
Then, they argued that the FTC was required to provide extrinsic evidence of consumer perception. This was wrong on a number of levels. No extrinsic evidence is ever required when the claims at issue are express. (In a footnote, the court suggested that, as a matter of logic, all claims that are necessarily true if the express claims are true are necessarily implied by an express claim—thus, a claim that a car gets 30 mpg necessarily implies that the car gets “more than 10 mpg.” This seems to me true but not all that important, except insofar as defendants were ridiculously parsing the FTC’s expression of the claims made by their ads. It isn’t really what the doctrine of necessary implication in the Lanham Act covers; that doctrine is more about applying my favorite Gricean maxims of relevance, quality, etc.)
Moreover, even when claims are implied, the FTC is not necessarily required to submit extrinsic evidence of deceptiveness. The FTC can find that reasonably clear implied claims are conveyed to the audience by using common sense and administrative experience, as the Seventh Circuit held in its Kraft case. (I think this rule would make sense for some obvious implied claims in Lanham Act cases as well; in fact, that is some of what the necessary implication doctrine does—it adds common sense to the mix.)
And, regardless of one’s view of the law, the court had no doubt that the ad made the alleged claims: “The advertisement is not subtle. It does not employ innuendo, subliminal messages or hints to convey its message. It does not contain conflicting messages that are reasonably susceptible to different interpretations. It makes no meaningful qualifications. Instead, it is clear, stark and dramatic. Only four words in the entire advertisement do not relate to weight loss in some way: ‘makes great iced tea’” (footnote omitted).
Defendants argued that their “guarantee” was a “satisfaction” guarantee, not a weight loss guarantee, but “satisfaction” doesn’t appear anywhere in the ad, while weight loss claims do: e.g., “[a]ll participants lost between 18 lbs and 75 lbs over the 12 week period. If you do not lose similar amounts of weight we guarantee to refund your purchase price in full.” (Defendants never produced any evidence that any such clinical trial was conducted.) I should note that this is an instance in which easy cases might make bad law: even had the word “satisfaction” appeared in the ad, it would still have been a false representation of guaranteed weight loss.
To see what else the district court had to put up with, consider defendants’ argument that “SHED [ ] POUND AFTER POUND OF FAT--FAST!” only meant “at least two pounds,” since “pound” after “pound” makes two pounds. “Unreasonable,” the word the court used for this interpretation, seems charitable.
Defendants tried to highlight the ad’s statement that “drinking Chinese Green Diet Tea is not a license to gorge yourself.” But that isn’t close to the truth, which is that you’d still need to diet and/or exercise to lose weight. Even if it were true, “one true statement, in the presence of a mass of false and misleading statements, does not render an otherwise misleading advertisement non-misleading.”
So, the ad made the functional equivalent of the claims as the FTC stated them: clinical proof of rapid and significant weight loss for all users, without increased physical activity or decreased caloric intake, and while consuming high-fat and high-calorie foods such as “sweet buns and chocolate” (mmm, chocolate), as well as a fat- and sugar-blocking effect.
Defendants then argued that these claims were not false or misleading, because green tea promotes weight loss. They retained a professor from the University of Wisconsin-Madison, Dr. Hasan Mukhtar. His expertise is primarily in dermatology and cancer research, and he has no significant nutrition-related education or experience. Nonetheless, he was offered as a leading expert on green tea.
Mukhtar’s report suggested that green tea could be a useful part of a weight-loss program; that green tea helps reduce sugar and fat absorption; and that green tea increases metabolic rates. He concluded that green tea consumption “could” lead to weight loss. He relied on studies showing potential effects on various metabolic processes, including studies performed on rats and mice. One study was actually a double-blind placebo test on 46 women; it found “modest weight loss” from green tea.
This was all very nice, but even if true (which was unclear at best), nothing in this report supported the claims actually made by the ad. At deposition, Mukhtar even said that the ad’s claims were too strong. The ad claims themselves were either completely unsubstantiated or patently false—there were no clinical trials, no evidence that green tea eliminated most sugar and fat absorption, and no evidence of fast and significant weight loss in people. As the FTC’s expert noted, the claims were simply beyond the realm of scientific plausibility.
Blatant lies can work on people desperate for solutions they haven’t found elsewhere; this is why we need consumer protection law.