Sunday, September 25, 2005

FTC Slaps "Ab Force" Ads for False Advertising


The Federal Trade Commission announced Friday that it would hold respondents Telebrands Corporation (Telebrands), TV Savings, LLC (TV Savings), and their principal Ajit Khubani "liable for disseminating unsubstantiated and false advertising for the Ab Force, a belt-like device that uses electronic stimulation (EMS) to cause involuntary contraction of the muscles of the abdominal wall."

What makes this news-worthy is that the FTC admits that no overt statement was involved in the deception. Instead, "false and unsubstantiated claims can be communicated indirectly but with utter clarity"; and Ab Force ad-claims that the product could help with loss of weight, inches, or fat, could create well-defined abdominal muscles, or was an effective alternative to conventional exercise were "clearly presented"—despite the companies' admission that the product was known to be ineffective for all those purposes.

Ab Force TV ads showed well-muscled, bare-chested men and trim women wearing Ab Force belts and experiencing abdominal contractions, and asked viewers to compare the pictured results with those obtained "using other ab belts costing much, much more." The Commission found that the implications were clear, even if not explicitly stated.

Telebrands, et al, claimed that their ads did not, in fact, ever state that the Ab Force or other EMS devices would produce the benefits they implied, and argued with FTC methodology that failed to establish whether consumers might not be bringing existing beliefs to their acceptance of the Ab Force product. The Commission replied,to this contentions:
Where, as here, an advertiser exploits preexisting beliefs by inviting consumers to recall the claims in other ads to help convey a message, it makes little sense to remove the influence of those other ads...

The FTC's ruling substantially "fences in" the companies involved with the Ab Force, and further, sets a precedent for applying these restrictions to future "unstated" or "implied" claims for other products.
[T]he Commission stressed that the First Amendment provides no protection for deceptive commercial speech. According to the Commission, the challenged claims were "communicated indirectly but with utter clarity," a conclusion that "was buttressed by extrinsic evidence, including a copy test and expert testimony."


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