The federal government has caught up with a few of the many deceptive products that promise miracle weight loss and deliver nothing. One of the enforcement duties of the Federal Trade Commission is to stop false advertising with respect to a defective product marketed in interstate commerce. The agency operates with authority in West Virginia and all other states.
The FTC recently settled for $34 million with four makers of weight-loss products. They are alleged to use false and deceptive advertising regarding their ability to slim down the consumer. The largest chunk of the settlement, which was for $26.5 million, was with a company called Sensa, which has been advertising that its product guarantees weight loss by just sprinkling and eating it.
The agency has also stepped up its efforts to get media outlets to stop accepting deceptive advertising. It explains to the media how to spot fraudulent sources. It has sent letters and prepared informational distributions for the media stations in its effort to stop such false marketing practices before they start.
The enforcement activities and monetary recoveries of a federal agency are to be distinguished from the law of product liability. In product liability law, a private consumer sues a manufacturer and often a retailer of a defective product with unreasonably dangerous characteristics that has caused injury to the plaintiff. If a weight loss product, for example, had a defect that caused physical injury, the consumer could sue the maker for damages from the defective product.
As discussed in prior blogs, perhaps the most widely used legal theory asserted in such cases is that of strict liability in tort. It provides for a civil damages recovery if the plaintiff proves that a defect exists, and that the defect caused the injury. The strict liability claim in West Virginia and elsewhere must also show that the defective product was used as intended by the consumer without material changes. A recovery is allowed even if the company was not negligent.
Source: multichannel.com, FTC Updates Media Guidelines on Deceptive Diet Ads, John Eggerton, Jan. 7, 2014