Diet supplements, tanning and other scams

Kim Kardashian and other influencers  are paid millions of dollars for product promotion on Instagram, Snapchat, Facebook and other social media.   Question: Do these endorsements of dietary supplements have to be labeled as advertisements? How might that  differ from endorsements of stocks or crypto-currency investments? 

What areas of advertising are regulated?

Branding:  Dietary supplements are  (to some extent) regulated by the FDA under the Dietary Supplement Health and Education Act of 1994. Under the act, “Manufacturers and distributors of dietary supplements and dietary ingredients are prohibited from marketing products that are adulterated or misbranded.  That means that these firms are responsible for evaluating the safety and labeling of their products before marketing to ensure that they meet all the requirements of DSHEA and FDA regulations. FDA is responsible for taking action against any adulterated or misbranded dietary supplement product after it reaches the market.”

Substantiation: The FDA brought a case in 2015 against Bayer company because of  allegations that they were not using randomized tests  to support the claims of their supplements.  However, Bayer did  perform scientific research to support their claims and the case was dismissed (DLA Piper, 2017).

Endorsements: The Federal Trade Commission (FTC) also regulates celebrity endorsements , which are perfectly legal, but  must be disclosed under FTC (Federal Trade Commission)   advertising disclosure guidelines for online influencers in 2019. Failure to comply can result in high fines for both the influencer and the brand. 

Brands: make sure that you look for such hashtags when reviewing and accepting influencer content.

One court case that helps clarify any misconception is  FTC v  Garvey. The FTC filed a suit over baseball star Steven Garvey because they did not think he expressed his honest opinion of the product he was endorsing. Garvey had been using the supplements prior to filming the infomercial and saw results, which goes with the requirement of the endorser using the product at the time of the endorsement. The court found that Garvey did not knowingly provide any false opinions or misrepresentations of the product and the case was dismissed.

FTC v Warner Brothers Home Entertainment is another  example of endorsement disclosure requirements. The court found that Warner Brothers failed to disclose that the marketing campaign for the video game Middle Earth: Shadow of Mordor,  paid online “influencers,” including the wildly popular “PewDiePie,” thousands of dollars to post positive gameplay videos on YouTube and social media.  Over the course of the campaign, the sponsored videos were viewed more than 5.5 million times. Not only did they fail to disclose that these were endorsements but they also required the users to only post positive opinions which goes against FTC guidelines (FTC, 2017).

The FTC cracked down on endorsement disclosures starting in 2015 (Ad Age).

Greenwashing is another area that advertising content creators need to understand. In 2021, for example, a lawsuit over deceptive advertising was filed by nine environmental groups against Smithfield Foods contesting the truth of the company’s advertising claim that its operations are sustainable and “the opposite of factory farms.”  The FTC has a “Green Guide” to help with environmental claims in marketing.

Tanning is NOT healthy, and advertising supposed health benefits goes against FTC regulations.

Health and safety of products, such as tanning beds, are also regulated by FDA and FTC. Tanning is one particularly thorny area.  In 2008 – 2010,  the Federal Trade Commission sued the Indoor Tanning Association over these false and misleading statements:

• Indoor tanning is approved by the government;
• Indoor tanning is safer than tanning outdoors ..
• A National Academy of Sciences study determined that “the risks of not getting enough ultraviolet light far outweigh the hypothetical risk of skin cancer.”

These statements are provably false. The risk of cancer is not “hypothetical.”  And engaging in this kind of deceptive advertising can result in fines and other penalties,  as for example in this 2009 consent decree between the FTC and the Indoor Tanning Association. Adverting for tanning salons must follow FTC regulations.