FTC Won't Warn Diet Advertisers

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The Federal Trade Commission said there is nothing arbitrary, capricious or unconstitutional about the way it investigates claims against health-related advertisements.

It has been cracking down on dietary supplement and exercise equipment ads, which prompted the First Amendment Health Freedom Association, on behalf of the marketers of such products, to ask the commission to remedy the alleged  "legal infirmities" of its process.

The FTC Tuesday denied that April 2003 petition, which had asked it to (1) issue a warning letter as its "primary enforcement mechanism" and in advance of any formal investigation; (2) evaluate scientific evidence before launching an investigation; (3) spell out the specific content it felt was misleading and its reasons before investigating; (4) explain how the substantiation in the product's marketing was inadequate.

To do otherwise, the group argued, was a violation of the First Amendment and of standard administrative procedures.

The FTC disagreed, pointing out that advertisers are not compelled to change ads or stop running them simply because an investigation is initiated. In a 5-0 decision, the commission wrote: "The petition seeks to require the FTC staff, in essence, to determine that a violation of the FTC Act has occurred prior to conducting an investigation and obtaining the very information necessary for making such a determination."

The commission said the FTC Act already protects advertisers "from broad or arbitrary investigations and enforcement."

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