Wednesday, January 21, 2009

Where advertising law and IRBs collide

(That is, my field of research and my husband's.)

NYT: Fitness Isn’t an Overnight Sensation

Carl Foster, an exercise physiologist at the University of Wisconsin, La Crosse, was amused by ads for a popular piece of exercise equipment. Before-and-after photos showed pudgy men and women turned into athletes with ripped bodies of steel. And it all happened after just 12 weeks of exercising for 30 minutes three times a week. Then there was the popular book, with its own before-and-after photos, promoting a program that would totally change your body in six weeks with three 20-minute exercise sessions a week.

… “We said: ‘Wait a minute. You can’t change yourself that much,’ ” Dr. Foster said. So he and his colleagues decided to experiment. Suppose they recruited sedentary people for a six-week exercise program. Would objective observers notice any changes in their bodies?

… The volunteers were men, age 18 to 40 (the university’s human-subjects review board looked askance at having women photographed and rated like that). And they were sedentary. “These were people who were just sort of dumplings,” Dr. Foster said.

Results were not surprising. The subjects rated themselves more highly than anyone else rated them, and female panelists rated the subjects lower than the male subjects or panelists rated them. But, over all, the subjects’ ratings barely changed, if at all, after their exercise program. And neither did objective measures, like weight or percentage of body fat, or waist size or the size of the bicep or thigh.

… Dr. Mark Tarnopolsky, an exercise researcher at McMaster University in Hamilton, Ontario [said] that although he does not think the before-and-after photos in ads are doctored, most people will not change so markedly no matter how hard or long they work. “I believe they are taking the top one or two people out of thousands,” Dr. Tarnopolsky said.

If the ads clearly disclose in text that their results are unusual, and they really do feature the one or two people who succeed using the advertised program, they probably follow current FTC guidelines. But maybe the guidelines themselves are too lax.


  1. Probably won't save them for long given the FTC's proposal to require disclosure of representative performance of the product or service:

    § 255.2 Consumer endorsements.
    (a) An advertisement employing endorsements by one or more consumers about the performance of an advertised product or service will be interpreted as representing that the product or service is effective for the purpose depicted in the advertisement. Therefore, the advertiser must possess and rely upon adequate substantiation, including, when appropriate, competent and reliable scientific evidence, to support such claims made through endorsements in the same manner the advertiser would be required to do if it had made the representation directly, i.e., without using endorsements. Consumer endorsements themselves are not competent and reliable scientific evidence.
    (b) An advertisement containing an endorsement relating the experience of one or more consumers on a central or key attribute of the product or service also will likely be interpreted as representing that the endorser's experience is representative of what consumers will generally achieve with the advertised product in actual, albeit variable, conditions of use. Therefore, an advertiser should possess and rely upon adequate substantiation for this representation. If the advertiser does not have substantiation that the endorser's experience is representative of what consumers will generally achieve, the advertisement should clearly and conspicuously disclose the generally expected performance in the depicted circumstances, and the advertiser must possess and rely on adequate substantiation for that representation.

  2. "the university’s human-subjects review board looked askance at having women photographed and rated like that"

    Odd. These were volunteers. If they don't care, why should the IRB care?

  3. As my husband Zach would say, Bruce, welcome to the wonderful world of the IRB.

  4. I'm already on record, if blog comments count as a record, as not being a fan of at least some aspects of IRBs.