Increased scrutiny of advertisers' claims for their products is unlikely to do much to temper their overheated pitches
You're just two pills away from a fabulous new you!
For many in a rapidly growing line of foods, beverages, and cosmetics, that's the underlying message when it comes to selling medicinal or therapeutic benefits. But grandiose health claims may soon be facing more challenges. Consider the recent furor over Enviga, a sparkling green-tea drink marketed jointly by Coca-Cola (KO) and Nestlé (NSRGY). The beverage, which made its national debut Feb. 5, claims to spur weight loss. It has garnered heavy criticism, along with a lawsuit against the companies by the Center for Science in the Public Interest challenging the scientific basis for the drink's claims.
Controversy over Enviga has even led the Food & Drug Administration to consider whether it should regulate food and drinks that claim drug-like benefits. In February, Connecticut Attorney General Richard Blumenthal began investigating Enviga's claims, which he called "voodoo nutrition."
Hype and Anti-Hype
Why so much product hype? Companies typically face scant public censure when it comes to outrageous product claims. Even if a government agency, plaintiff, or activist cries foul, there's often little penalty to be paid. The few weeks or months that most companies' ad campaigns run are usually over before anyone gets exercised over their claims. By then the companies have already achieved their objective of goosing sales and the public is often unaware of any court rulings or government orders against the ads.
It is true that exaggeration and hype have long been part of selling consumer products. But now an increasingly large array of products are being aggressively marketed to an affluent generation of aging Baby Boomers, consumers who have shown a marked willingness to pay to stave off the effects of age, weight, wrinkles, or fatigue.
That is sparking a backlash from consumer activists and regulatory agencies, which are cracking down on some of the activities and taking additional legal action. "There's little evidence in many of the claims that products tout today," says Marion Nestle, nutrition professor at New York University. "But the government has just rolled over and played dead when it comes to monitoring these claims." FDA officials did not immediately comment on the agency's position.
Merely a Slap on the Wrist
In 2005, a federal judge ruled as false and misleading a Listerine mouthwash ad campaign by Pfizer (PFE). The ad claimed that Listerine was as effective as flossing in fighting tooth and gum decay. The judge in that suit ruled that the claim even poses a public health risk. In the previous year, the Federal Trade Commission charged KFC, the restaurant chain owned by Yum! Brands (YUM), that it made false claims in a national TV advertising campaign. The company claimed that eating two of its Original Recipe fried chicken breasts was healthier than eating a Whopper, the signature hamburger of Burger King (BKC).
In a settlement with the FTC, Yum agreed not to trumpet such claims in future ads. The KFC case "signals food advertisers that the FTC will not tolerate misleading advertisements to consumers who are trying to eat healthier and watch their weight," warned FTC Chairman Timothy Muris. But companies clearly find that it's easier to go ahead with the claims in ad campaigns and deal with the harmless consequences later.
In many cases, the advertising has already run its course by the time the claims are investigated by the National Advertising Division of the Council of Better Business Bureaus. The NAD is a voluntary self-regulation program of the advertising industry which investigates the accuracy of advertising claims. On Feb. 1 the group asked that McNeil-PPC, a division of Johnson & Johnson (JNJ), modify its advertising claims for its Tylenol Rapid Release Gelcaps. Specifically it said the message—that the pills are the "latest" and "a breakthrough in pain relief"—was a stretch. McNeil had already discontinued the ads that the NAD was investigating. However McNeil spokeswoman Bonnie Jacobs said that McNeil in future ads will "clarify that such claims pertain to an advance in gel-coated Tylenol products."
Despite increasingly strident calls for more oversight, it's highly unlikely that the government will regulate advertising and marketing claims, say industry experts. "Until there's some sort of disaster, don't expect the government to step in," says Robert Passikoff, president of Brand Keys, a brand marketing firm in New York. "It's the difference between the letter of the law and the spirit of the law—and government doesn't care about the spirit of the law."
Serious Health Risks
On Apr. 2 the NAD told Body Vibe International, which makes and markets an exercise machine called the Body Vibe Whole Body Vibration Unit, to discontinue its claims that its machine can help people who have osteoporosis, arthritis, sleep problems, Parkinson's disease, and diabetes, among many other conditions. The NAD also told the company to stop saying that top athletes and celebrities use its machines. "We say that it 'may' help you and that doesn't mean that for sure it will help you," says Dr. Keith DeOrio, a physician in Santa Monica, Calif., who consults with Body Vibe. "The sites and athletes who we are referencing do not use Body Vibe exactly but use the body vibration techniques and we will correct that in our Web site."
In some cases, activist groups say looking the other way could end up hurting the most vulnerable members of society. Last year the Campaign for a Commercial-Free Childhood filed a complaint with the FTC against Baby Einstein and Brainy Baby and BabyFirstTV. The consumer group says that the educational and developmental benefits touted in these extremely popular video packaging and Web sites run counter to the American Academy of Pediatrics' recommendation of no screen time for children under two. "These companies are exploiting parents' natural tendency to want what's best for their children and their deceptive marketing may be putting babies at risk," says Dr. Alvin Poussaint, director of the media center at the Judge Baker Children's Center, which is affiliated with Harvard Medical School.
Company executives dispute the assertion. "Baby Einstein products are designed as interactive tools for parents to use with their babies—helping parents to expose their little ones to the world around them in playful and enriching ways," says Michelle Jacob, spokeswoman for Baby Einstein, a division of Walt Disney (DIS).
Playing to Vulnerabilities
Other ads play to parents' vulnerabilities. On Jan. 12, the NAD recommended that Ross Products, a subsidiary of Abbott Laboratories (ABT), discontinue advertising claims for its Isomil Advance infant formula. In its ads and packaging, the formula claimed: "Clinical evidence supports that switching to Isomil Advance will reduce fussiness and spit-up in most babies in three days." However the NAD examined a 10-year-old study of a previous formulation of Isomil Advance and competing formulas and found it was insufficient to support the claims. Abbott spokeswoman Tracey Noe says: "We do not agree with the NAD recommendation, but we are strong supporters of the voluntary regulatory process and have agreed to modify our promotional materials for Isomil."
The NAD often ends up investigating some rather innocuous claims that are flagged for review by a company's rivals. For instance, on Apr. 2 the NAD recommended that the maker of Smart Balance Buttery Spreads remove its ad claiming that the product "cooks like butter, spreads like butter, and tastes like butter" because there's no proof of that claim. There was even a recent dust-up over dust. Colgate-Palmolive (CL), which makes Murphy Soft Wipes, complained that rival S.C. Johnson & Son should not be allowed to claim its Pledge spray is an "anti-dust" formula that keeps wood and furniture "less dusty, longer." The NAD agreed, citing insufficient evidence to support those claims.
In the meantime Coca Cola is charging ahead with Enviga, saying it believes consumers understand that the drink is designed to complement, not replace, regular exercise and a sensible diet. It also says that it will not stop making its claims and that it has enough proof to show that the combination of caffeine and green tea extract invigorates metabolism. "Enviga is designed to work with your body to increase calorie burning. It creates a negative calorie effect—in other words, you burn more calories than you get from drinking it," says Rhona Applebaum, chief scientist at Atlanta-based Coca-Cola.
Clearly, marketers aren't concerned about the prospects for oversight. Maybe that's because they really are of an ilk defined as early as 1959 by the character of Roger Thornhill, a successful advertising executive, played by Cary Grant in the movie North by Northwest. As Thornhill memorably put it, "In the world of advertising, there's no such thing as a lie. There's only expedient exaggeration."