The FTC's complaint against Norm Thompson Outfitters alleges the company deceptively advertised, marketed, and sold women's undergarments infused with microencapsulated caffeine, retinol, and other ingredients, claiming the shapewear would slim and reshape the wearer's body and reduce cellulite. The products, made with Lytess brand fabrics, were sold via mail order and on the company's Norm Thompson Outfitters, Sahalie, Body Solutions, and Body*Belle websites.
The complaint against Wacoal America contains similar allegations. It charges that the company's iPants supposedly slimmed the body and reduced cellulite. Specifically, the company made false and unsubstantiated claims that wearing iPants would: substantially reduce cellulite; cause a substantial reduction in the wearer's thigh measurements; and destroy fat cells, resulting in substantial slimming. The complaint alleges that these claims are not true or substantiated by scientific evidence, and therefore also violate the FTC Act.
NOTE: The Commission issues an administrative complaint when it has reason to believe that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of up to $16,000.
What can other companies take from these cases?
Substantiation for objective claims: A foundational principle. When selling unmentionables, most advertisers mention fit, comfort, or other subjective attributes. But the law draws a sharp distinction between a suggestion that a certain kind of underwear may help people look or feel better while wearing it vs. an affirmative representation (especially one supposedly supported with scientific evidence) that it will reduce cellulite, shrink hips or thighs, and destroy fat. If you don’t have a solid underpinning for what you say, don’t make objective claims that are subject to the FTC’s long-standing reasonable basis standard.
A brief word on testing methodology. In both cases, the FTC challenged the way the underlying studies were conducted. Of course, the appropriate methodology will depend on – among other things – the nature of the claim and what experts in the field believe is necessary to support it. But uncontrolled, unblinded tests for caffeine-infused fat-dehydrating underwear? A prudent advertiser would evaluate the methodology with care.
When recapping results, remove the rose-colored glasses. Even putting aside the fundamental flaws in methodology, the FTC says Wacoal and Norm Thompson falsely reported the results of their studies. As these cases suggest, it's unwise to build an ad campaign around statistical outliers. Basing claims on best-case-scenario findings could lead to a worst-case-scenario result for advertisers.
David Trumbull, Principal, Agathon Associates, has 20-years experience working with the FTC. We can assist you with LABEL ADVISOR, which offers "Smart guidance for U.S. label compliance: SO SMART, SEW RIGHT." Contact David at 202-657-6008 or firstname.lastname@example.org.