Weight Watchers and Jenny Craig to Face Litigation over FTC Deceptive Advertising Charges

August 27, 2006

The Federal Trade Commission today alleged that five of the nation’s largest commercial diet-program companies have engaged in deceptive advertising by making unsubstantiated weight-loss and weight-loss maintenance claims and by using consumer testimonials without substantiation that the testimonials represented the typical experience of dieters on the programs. Allegations in some of the cases also address deceptive pricing, comparative superiority, weight-loss rate or safety-related claims. These cases represent five more in a series of FTC law-enforcement actions announced since 1991 that target advertising in the commercial and liquid diet-program industry.

Two companies will litigate the FTC charges. They are:

  • Jenny Craig, Inc., and Jenny Craig International, Inc., of Del Mar, CA; and
  • Weight Watchers International, Inc., of Jericho, NY.

Both of these cases will be scheduled for hearings before an administrative law judge. If the charges are upheld, the FTC has proposed to place Jenny Craig and Weight Watchers under orders that would impose requirements to help ensure they do not mislead consumers about what to expect from the programs in the future. The Commission said it also may seek court orders requiring the firms to pay restitution, refunds or other redress to their customers.

Diet Center, Inc., of Pittsburgh, Pennsylvania; Physicians Weight Loss Centers of America, Inc., and Physicians Weight Loss Centers, Inc. (Physicians), of Akron, OH; and Nutri/System, Inc., of Blue Bell, PA, have agreed to settle the FTC charges under proposed consent agreements that include several provisions similar to those the FTC is seeking in litigation with the other two companies.

According to the FTC complaints detailing the allegations in these cases, all five companies market low-calorie (approximately 800 or more calories a day) diet programs (LCDs), consisting of food products or recommended diets and weight-maintenance services. They do so on a nationwide basis through company-owned and franchised centers. The FTC also challenged health-risk claims made by Physicians for its very-low-calorie diet (VLCD) program. (VLCDs, popularly known as liquid diets, are medically-supervised diets of less than 800 calories a day.)

Today’s Charges

At the heart of the FTC cases are various advertising statements, which are cited in the FTC complaints and which include testimonials from consumers stating the weight loss they achieved under the relevant program. The FTC alleged that none of the five companies have substantiation to support the resulting representations that their customers typically are successful in reaching their weight loss goals or maintaining them long-term. Moreover, four of the programs made unsubstantiated representations that their customers maintained weight loss permanently, the FTC charged. Other allegations included in the complaints are that:

  • Physicians and Diet Center represented falsely or without substantiation the weekly weight-loss rate for consumers on their programs;
  • Jenny Craig, Nutri/System, and Physicians made false or unsubstantiated representations that their customers typically reach their weight-loss goals within certain, predicted time frames;
  • Weight Watchers made false weight-loss rate representations for its “Quick Success” program in comparison to its earlier programs, and has represented without substantiation that its programs are superior to others in helping dieters to achieve and maintain weight loss;
  • Nutri/System falsely represented that studies show its customers lose at least 29 percent more weight than dieters on other programs;
  • Jenny Craig and Nutri/System falsely represented that the advertised prices were the only costs associated with the programs; these companies and Physicians also deceptively failed to adequately disclose additional mandatory expenses;
  • Nutri/System falsely represented that its “nutritional specialists” are certified as competent, and that its program complies with American Medical Association, American Heart Association, and American Dietetic Association guidelines for comprehensive weight-loss programs;
  • Nutri/System falsely represented that the evaluations and ratings of diet programs in a May 1991 article in Healthline magazine were approved by Stanford University, and that it had no material connection with the publication (The FTC alleged that Nutri/System should have disclosed clearly and prominently that it paid Healthline a sponsorship fee and received and exercised a right of prior review of the article.);
  • in some instances, consumers on the Jenny Craig, Nutri/System, Diet Center and Physicians programs exceeded weight-loss expectations, indicating that they may not have been consuming all the prescribed calories (Given alleged representations by Jenny Craig that customers on its program lose weight safely without increased risk of health complications, and the practice of all these companies of monitoring dieters’ progress, the FTC charged that these respondents should have disclosed that losing weight too rapidly, if prolonged, or skipping prescribed calories could affect their health.); and
  • Physicians falsely represented that dieters on its LCD and VLCD programs are actively supervised by physicians throughout the program. Further, in light of the company’s alleged representation that its VLCD programs are unqualifiedly free of health risks, the FTC charged that Physicians should have disclosed that physician monitoring is necessary to minimize the risk of health complications.
The Proposed Orders and Settlements

The FTC is seeking orders against Jenny Craig and Weight Watchers that are substantially similar to the proposed settlements with Physicians, Nutri/System and Diet Center. The proposed orders and settlements generally would prohibit the companies from misrepresenting the performance or safety of any weight-loss program they offer in the future, and would require them to have scientific data to back up future claims they make about weight loss and maintenance. Moreover, the proposed orders and settlements set out standards for the type of evidence that would be required to support various maintenance claims. For instance, claims that weight loss is maintained long term would have to be based on evidence of consumers followed for at least two years.

In addition, maintenance success claims in most ads would have to be accompanied by various clear and prominent disclosures, including the statement, “For many dieters, weight loss is temporary,” as well as disclosures about the average weight-loss maintenance for consumers on the relevant program. (The disclosure as to average maintenance would not be required in most broadcast ads of 30 seconds or shorter: however, the orders and settlements still would require these ads to clearly and prominently state, “For many dieters, weight loss is temporary,” and that consumers should check with the companies’ local centers for details about their maintenance records. The companies would be required to give potential consumers a written document containing maintenance data.)

The FTC’s proposed orders and settlements would require any testimonials the respondents use to represent the results customers generally achieve, unless the companies also clearly and prominently disclose either the generally expected results or a statement such as, “This result is not typical. You may be less successful.”

To address specific additional conduct attributed to each respondent, the orders or settlements would impose, where relevant, provisions that prohibit alleged misrepresentations, require substantiation for allegedly unsubstantiated claims, and require certain disclosures in the future. For example, Weight Watchers would be prohibited from making unsubstantiated comparisons between its program and others. As to the disclosures, the settlements or orders would require:

  • any Nutri/System, Jenny Craig and Physicians advertising that includes price representations to disclose either all mandatory fees or a list of the additional products or services consumers will need to purchase; the companies must also disclose the amount of all mandatory fees by phone to consumers who inquire about the costs of the programs;
  • Diet Center, Jenny Craig, Nutri/System, and Physicians to disclose to some or all of their customers that failure to eat all the required food or recommended calories in the program may put their health at risk;
  • Nutri/System to disclose all material connections between its program and any entity that endorses or evaluates it; and
  • Physicians to disclose, in any ad that makes a representation about the safety of its VLCD program, that physician monitoring is necessary to minimize the potential for health risks.

Finally, the companies would be required to bind their franchisees to abide by the requirements in these orders or settlements, and to monitor their compliance.

The Commission votes to issue these complaints and to announce the three proposed consent agreements for public comment were 5-0, with Commissioner Mary L. Azcuenaga dissenting with respect to the issuance of a complaint against Weight Watchers. Commissioner Deborah K. Owen also dissented in part, stating that the disclosures that would be required to accompany numerical maintenance claims in broadcast ads may reduce or eliminate the use of shorter, more understandable disclosures in such ads without providing countervailing benefits in preventing deception. Owen also believed the order requirements pertaining to such ads were vague in part. She also dissented with respect to the Commission’s notice that it may seek redress from Jenny Craig and Weight Watchers.

A free FTC fact sheet for consumers describes various diet products and programs, offers clues to fraudulent products, and suggests several weight-maintenance tips for consumers. The fact sheet, titled “The Facts About Weight Loss Products and Programs,” is available from the address below.

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This page was posted on August 27, 2006.