FTC'S MURIS URGES MORE MEDIA RESPONSIBILITY ON WEIGHT LOSS ADS

Muris would like to see cable ad executives do better job of screening out such ads and infomercials and thereby prevent viewers from buying products based on claims that couldn’t possibly be true. FTC insiders we talked with said agency wasn’t planning major crackdown on broadcasters and cable operators, but instead was seeking voluntary commitments. FTC will continue to go after companies that carry ads for products based on false or misleading claims, they said.

FTC Bureau of Consumer Protection Dir. Howard Beales said agency wasn’t suggesting that TV and radio broadcasters and cable operators go to great lengths to investigate every claim made in ad. “What we're saying in the weight loss area is that there are some claims that, based on scientific evidence, cannot be true,” he said. “What we are asking, hoping, is that responsible companies will stop running advertising” that makes claims that can’t be accurate on their face.

Beales’ comments were reflective of Sept. 2002 report by FTC that said media should be encouraged to adopt what report called “meaningful clearance standards that weed out facially deceptive or misleading weight-loss claims.” Beales said FTC’s enforcement was governed by 2 basic principles: (1) That ads must be truthful and not misleading. (2) That there be adequate substantiation for all claims. Although First Amendment concerns are at play here, Beales stressed that media were at liberty to turn down ads. “What we don’t think they have a constitutional right to do is to knowingly run false advertising,” he said. Report said major TV networks, ABC, CBS and NBC, already had “stringent” ad clearance standards but “most media make little or no attempt to screen questionable ads for weight loss products.”

Beales said FTC was trying to avoid having media outlets create “some elaborate new review process,” but wanted them to establish some standards for themselves. “Right now, we very much want to work cooperatively because we think that’s most likely to work,” he said. “We think really a self- regulatory approach makes a lot of sense here. If that fails, then we'll have to reassess.” Asked about plight of smaller broadcasters and cable operators that needed revenue from ads, Beales said he didn’t think even small media outlets would want “to expend their credibility” with viewers by running blatantly false ads.

Attorney John Kamp of Wiley, Rein & Fielding, who represents Newspaper Assn. of America, said that despite FTC’s talk of voluntary efforts, he was concerned that agency was looking for test case to bring against media outlet. “It’s clear to me that they think they have the authority to bust the media as well as the advertiser and I wouldn’t be surprised if they found the right case that they would use it,” Kamp said. Although FTC hasn’t actually gone after broadcasters, cable operators or newspapers in that way to date, Kamp said it had taken position in past cases that “any agent of an advertiser who knew or should have known that an ad was false is” also liable.

Kamp also is afraid FTC may be trying to push media down slippery slope, whereby they would be forced into becoming “private attorney general” on all ads, having to guarantee quality of products advertised through their medium. One example might be classified ad in newspaper for car that turned out to be lemon. “The concern that newspapers and other media have is that if they get into the business of being the guarantor of the truth or veracity, they essentially become subject to all kinds of lawsuits,” he said. Although many outlets already have decided not to run whole categories of ads, such as those for topless nightclubs or tobacco or alcohol products, Kamp said denying whole category was easier than trying to decide which ads in weight loss category were false and which were true. “That’s a whole different level of screening and professional responsibility,” he said.

FTC Comr. Mozelle Thompson said agency was “correctly concerned” about those ads and it was up to each individual media outlet to “act responsibly” and develop criteria to screen out false or misleading ads. Any media outlet that allows advertisers to take advantage of their viewers or readers isn’t serving its audience well, he said: “Then I think it’s a problem for them as a business matter in the long run.” Thompson said, however, he wasn’t looking for any govt. crackdown or fines against media.