A skin cream that can reduce body size. Are historians sure that wasn’t what Ponce de Leon was seeking? It’s certainly what buyers are looking for, if ads are any indication. But claims like that have to be backed up by solid science, as is clear from the FTC’s $900,000 settlement with Beiersdorf, Inc., marketer of Nivea My Silhouette! (Yes, the exclamation point is on the package.)
Ads for the product touted its “Bio-slim Complex,” a combination of ingredients that includes white tea and anise. In one TV ad, as the voice-over claimed “New Nivea My Silhouette! with Bio-Slim Complex helps redefine the appearance of your silhouette and noticeably firms skin in just four weeks,” the ad showed a woman digging into the recesses of her closet, taking out an old pair of jeans, and trying them on to learn that they fit. “So you can rediscover your favorite jeans and how they still get his attention.”
Um, OK. Except that according to the FTC, using the product doesn’t really result in a significant reduction in body size. That’s why the agency challenged the claim as false.
For pleadings watchers, there’s another interesting angle involving sponsored search engine keywords. The FTC’s complaint mentions that the company had a deal with a leading search engine so that a webpage marketing Nivea My Silhouette! would show up in response to searches for information relating to body size. Thus, if someone typed in a phrase like “stomach fat,” the search yielded a sponsored link at the top of the page that said “Want a toned stomach? NIVEA My Silhouette Can Redefine the Appearance of Your Curves!” (The complaint offers no explanation for the wandering exclamation point.)
In addition to $900,000 in redress, the proposed order imposes tough injunctive provisions. Under Part I, Beiersdorf can’t represent that any topically applied product causes substantial weight or fat loss or a substantial reduction in body size.
Subject to that provision, Part II says that Beiersdorf can’t represent that any “covered product” or “essentially equivalent product” — terms defined in the order — causes weight or fat loss or a reduction in body size, unless the claim is non-misleading and the company has competent and reliable scientific evidence substantiating the claim. For claims covered by Part II, “competent and reliable scientific evidence” means at least two adequate and well-controlled human clinical studies of the covered product or of an essentially equivalent product “conducted by different researchers, independently of each other, that conform to acceptable designs and protocols and whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are sufficient to substantiate that the representation is true.” That provision also establishes that Beiersdorf will have the burden of proving that a product satisfies the definition of “essentially equivalent product.”
Under Part III, if Beiersdorf wants to make any other claims about the health benefits of a covered product, the company will need competent and reliable scientific evidence, defined for those representations as “tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons, and that are generally accepted in the profession to yield accurate and reliable results.” That provision specifies that the evidence has to be “sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true.”