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January 2006 send to a friend printable version

How product testimonials bend the rules

Product advertisements featuring “real” stories from ecstatic customers, doctors, and celebrities can tempt even the most jaded among us to believe, and manufacturers take that credibility to the bank. The problem is that it’s hard to tell which ads are true, which varnish the truth, and which are out-and-out lies. Here's four commonly-used "gotchas" that stand out.

Ad for Juice Plus Gummies.


The rule. When an ad makes a claim about a product, it must be based on facts and evidence. This rule becomes crucial when the person praising the product has built-in credibility; when former Sen. Robert Dole touts Viagra, for instance, or the actress Debbie Reynolds praises the overactive-bladder remedy Detrol LA.

The case. National Safety Associates (NSA) used testimonials from doctors, including William Sears (above), a prominent pediatrician and author, to promote Juice Plus Gummies, made with the juice powders of 17 fruits, vegetables, and grains. In response to a consumer complaint, the Better Business Bureau's National Advertising Division said in April 2005 that the ads misleadingly implied that the Gummies are low in sugar and are a nutritional alternative to fruits and vegetables. NSA promised to modify its ads and stop calling Gummies “the next best thing to fruits and vegetables.”

The outcome. In November 2005 the NSA Web site was saying that Juice Plus is “the next best thing to fruits and vegetables,” but that statement did not refer specifically to the Gummies form of the product, and we're not aware of any challenges to it. NSA didn't return repeated calls. When we asked Sears about the implied low-sugar claim for Juice Plus Gummies, he said, “Sometimes these advertising people will get carried away.”

Ad for Xenadrine EFX.

The rule. People who lost, say, 100 pounds with a particular potion should represent what most customers will lose. But there's a loophole: Advertisers can put atypical users front and center if the ad “clearly and conspicuously” discloses that their situation is unusual. Advertisers often use the disclaimer “Results vary,” but the FTC says that may not be enough.

The case. In May 2003 Cytodyne began promoting Xenadrine EFX with testimonials claiming that “Patrick lost 64 pounds” and “Kelly lost 110 pounds.” In barely readable type, the ads said that “endorsers' results are extraordinary” and that the losers used Xenadrine EFX “in conjunction with a diet and exercise program.”

In August 2005 the FTC alleged that the pills do not cause rapid or substantial weight loss without reduced caloric intake or increased activity. Endorsers lost weight, the agency charged, because of a rigorous diet and exercise program. Some were provided with a personal trainer and payments of up to $20,000.

The outcome. Cytodyne agreed to stop making the claims (without admitting guilt or paying a fine) and was ordered to give the FTC $100,000 to reimburse customers. FTC litigation against additional defendants involved in selling Xenadrine is still under way in federal court. New and improved Extra Strength Xenadrine EFX was on the market in November 2005, and a note on the testimonials and clinical studies sections of the product's Web site said, “Returning shortly.” Meanwhile the FTC is rethinking its disclosure rules, and in 2006 it plans to ask the public whether changes are needed.
Ad for Vioxx .

The rule. Celebrities who are paid to promote products are free to praise them on news programs if their role as spokespeople is disclosed.

The case. Olympic stars Dorothy Hamill and Bruce Jenner promoted painkiller Vioxx on CNN's “Larry King Live” in August 2000. They were introduced as touring “on behalf of the Merck company for a drug they take.” Hamill told King, “My doctor prescribed Vioxx for me, and it's as if I've been given a new life … I feel 20 years younger.” Vioxx was named 34 times during the show, but side effects were barely mentioned, and there wasn't a word about the potential of an associated increased risk of heart attack, which a Merck study had pointed to earlier that year. (Merck has contended that the study was not conclusive.)

The outcome. The FDA took no action against the promotion but warned Merck that six of its promotional audio conferences two months before the program were “false or misleading” because they minimized potential heart-attack risk. In 2004 Merck voluntarily pulled Vioxx from the market. King and Merck declined to comment. We were unable to reach Hamill and Jenner.
Ad for See Clearly Method kits.

The rule. Endorsers must have used the product when they endorsed it. The ad can't continue to run if endorsers stop using it or if the product stops working for them.

The case. For almost six years, Vision Improvement Technologies (VIT) has used testimonials to promote its See Clearly Method kits. The kits, which sell for $350, promise good vision without eyeglasses. Among the endorsers were doctors and consumers such as Dan A., who exclaimed that “these eye exercises are easy.”

In August 2005 Iowa's attorney general filed suit against VIT, citing, for starters, misleading consumer testimonials. Dan A. told investigators that the exercises were “hard work,” produced “a massive headache,” and that he had stopped doing them, according to the state's complaint.

The outcome. As of November 2005, VIT was still promoting See Clearly on its Web site. The company did not return our repeated calls but denied the charges in its legal reply to the state's complaint.

Read our complete report and related information on product testimonials (available to subscribers).


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