The fat of the land

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January 8, 2014 by Tamara Piety

The FTC has charged several companies selling supposed weight loss products with deceptive practices and the companies in question have agreed to offer refunds. The New York Times reports that the companies involved “denied fault.” The companies in question — Sensa Products, L’Occitane, HCG Diet Direct and LeanSpa — all seemed to be offering the proverbial “too good to be true” product, that is a product which supposedly promoted weight loss without eating less.

It is not surprising that these products didn’t work. What is surprising is that the FTC bothers.  It apparently believes it cannot ban such ads. And such fines seems too little, too late because the profits obtained from selling these sorts of products appear to ensure that any fines aren’t sufficient to discourage “entrepreneurs” of fat from entering the market (although Sensa cites “inability to pay” its refunds). After all, if all it requires is a sugar pill and a compelling marketing campaign to generate millions in sales, many will enter this market if any eventual fine is low enough to ensure a profit. You don’t need much. The article suggests that the FTC would only accept “double-blind, placebo-controlled studies” as proof of efficacy of weight-loss claims.

That sounds great, but where has the FTC been all this time?  Magical weight loss claims have been a ubiquitous feature of the media environment for some time. They appear as pop-up ads in the most unlikely places, sometimes as sidebars to serious journalism. They proliferate in tabloids. One reason might be that the sellers believe that this population is most credulous. But no demographic group appears to be immune to wishful thinking. This is a rich vein of profits for the unscrupulous to mine.

The legal doctrine which immunizes many apparently blatantly fraudulent product promotions like magic fat pills is the puffing doctrine. In a nutshell the puffing doctrine protects an advertiser for liability for claims that no reasonable person should have believed. But if millions of people are “unreasonable” should we rethink this doctrine?

Some people would say that despite the blatant fraud involved, the harms arising from government interference with “free speech” are worse. I am not sure that in an age of rising obesity, diabetes, and other weight-related health problems, that this is true.  the prevalence of magical weight loss product claims could conceivable contribute to the idea that the dangers of weight gain are less pronounced than the really are because you can only go on a fast or quick slimming regime (experience to the contrary notwithstanding.) I don’t know. But the idea that we ought to tolerate blatantly fraudulent appeals on the grounds that people are “justly” punished for believing something which the seller has used every effort to convince them of seems unjust.

I hope some of those misled by the ads for these products get their money back but I am more hopeful that this particular action means the FTC is going to get more serious on cracking down on the weight-loss industry.

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