Today’s post comes from Guest Barista C. Lee Thomason, a registered patent attorney and IP litigator at Frost Brown Todd’s Louisville office.

My interest in ads that compare the efficacy of a product to the competitors’ products was peaked by the FTC ruling in In the Matter of Telebrands Corp., TV Savings, LLC, and Ajit Khubani, FTC Docket No. 9313 (Sept. 19, 2005). We all have seen those ads on cable TV that tout some easy, fitness fix for “Only 4 Easy Payments of $ …but wait, if you call now, we double your order.” The question always springs to mind – ‘how can ingesting ground-up yard waste improve my…’ well whatever part you hope to improve. In other words, how can that expressed product claim be supported by good science?

In the Telebrands case, it was conceded that the promoter had no scientific basis to advertise that the “Ab Force” belt was good for anything, except that its ab belt sent electric pulses to the muscles underneath it. Telebrands’ defense to the false advertising complaint was that the ads made no actual claims that the product provided any stated results. As close as the ads came to making a specific claim was that the belt was shown in the ads being worn by attractive models with fabulous abs, coupled with voiceovers that the “Ab Force is just as powerful and effective as those expensive ab belts sold by others.” The implied conclusion was that claims about the other ab belts were unsupported, and Telebrands had advertised that the “Ab Force” was as “effective” as those (useless) “ab belts sold by others.” Such comparisons resulted in a form of ‘guilt by association’ being adjudged against Telebrands. The Commission concluded that “the product name, visual images, and statements in respondents’ advertising create the net impression that the Ab Force electronic muscle stimulation (“EMS”) device provides health, fitness, weight loss, or exercise benefits” and liability was imposed because this “net impression” was unsubstantiated.

The facts of the case are surprising. Telebrands monitored “direct response” ads on TV, and identified ab belts as a ‘hot’ seller. It then engaged a company to replicate the product, set a lower price, and began an advertising campaign, which said that the “Ab Force” was cheaper and it emitted the same sort of electric simulation pulses as competing belts. It was just a copycat product with a copycat ad. Again, no finding was made that the “Ab Force” ads claimed that the belt did anything.

The FTC ruling notes that while “the ads did not expressly state the purpose for the Ab Force, respondents’ ads made statements about the purpose of competitors’ ab belts – in some cases, direct statements – and indicated that the Ab Force was equally effective, allowing consumers to make the obvious logical connection.” I read that to imply that viewers who believe these ads engage in “logical” decision-making about fitness products. The imposition of liability for a “net impression” where no affirmative claim or representation is made in a TV ad, extends the authority of the FTC in its policing of ads.

Many nutraceuticals and health aids are advertised to provide results, but often those are stated in the negative, e.g., ‘no product on the market is more effective’ (meaning I suppose, that all of them are useless). Consider the more typical claims: “it won’t give you X-ray vision or bionic strength. but [a Ramses’ condom] will make you a hero,” In re London Int’l Group, Inc., 125 F.T.C. 726 (1998); “Too old to take up running? Maybe you should start . . . drinking ‘Jogging in a Jug,” In re Third Option Lab., 120 F.T.C. 973 (1995); the “Brain Tuner” will ” produce 256 simultaneous frequencies all known to be beneficial for the natural stimulation of the brain’s neurotransmitters ..[and it] simply coaxes the brain to restore it’s [sic] own chemical balance,” In re Lifestyle Fascination, 118 F.T.C. 171 (1994).

These type of ads do include express claims of results, albeit in some vague or obscure expressions. The Telebrands case extends false advertising liability beyond ads that expressly claim results, without a scientific basis, to ads that present a “net impression” about the usefulness of the product (images of belt-wearers with fab abs), or about its comparative utility (as good as competing junk). The finding of a bad, or unsubstantiated, net impression was based on the opinion of an expert using split sample surveys.

So, the next time you are up late, channel-surfing on cable TV, listen closely to the product quality claims in ads for nutraceuticals and health aids – because after the Telebrands decision, the ads may be crafted more around the impression than upon expressly claimed results.

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