Noah Cothern, Contributing Member 2023-2024
Intellectual Property and Computer Law Journal
Introduction
Advertising on social media has become a major part of how companies promote their products on the market. As of 2023, 77% of businesses make use of social media to reach customers.[1] Additionally, 76% of social media users report purchasing a product that they saw on social media.[2] For businesses looking to run an advertisement campaign, social media is one of the most affordable options available.[3] Given these facts, social media advertisement has become an almost required tool for growing businesses.[4]
Advertising on social media, however, is not without its risks – particularly for companies competing in certain industries. The sport supplements industry is fraught with claims of false advertising. In response to this epidemic, the Federal Trade Commission (FTC) has recently issued orders to social media platforms demanding information on how they screen for false advertisement.[5]
This article examines the legality of major industry trends in the sports supplement industry. Part II of this article gives background on the supplement industry and important legal standards related to advertising. Part III examines three prominent industry trends and argues that these constitute false advertising under FTC guidelines and do not fall within the defense of puffery.
Background
The Sports Supplements Industry
As of 2021, the sport supplement industry was worth 44.43 billion dollars.[6] By 2030, the market is expected to nearly double to 85.7 billion dollars.[7] To stay competitive in this market, companies often employ aggressive advertisement strategies. However, many experts believe that these strategies go too far and become illegal false advertising.[8]
The Federal Trade Commission
The Federal Trade Commission (FTC) has transparent criteria they apply when assessing claims of false advertising. Section 5 of the FTC Act declares unlawful “[u]nfair methods of competition” and “unfair or deceptive acts or practices.”[9] Section 12 declares unlawful false advertisement “which is likely to induce, directly or indirectly the purchase of food, drugs, devices, services, or cosmetics.”[10] When considering whether marketing is a deceptive act or practice, the FTC looks at 3 elements. First, there must be a “written or oral misrepresentation or omission.”[11] Second, the omission or misrepresentation is likely to mislead a reasonable consumer under the circumstances[12] Lastly, the challenged practice must be a “material” one that affects a consumer’s decision to purchase a product or not.
Puffery
Advertisers often attempt to use the defense of puffery when faced with false advertisement claims. Puffery, famously described in Pizza Hut, Inc. v. Papa John’s Intern., Inc., consists of either “(1) an exaggerated, blustering, and boasting statement upon which no reasonable buyer would be justified in relying; or (2) a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion.”[13] Puffery is distinguishable from statements of fact in that a statement of fact “(1) admits of being adjudged true or false in a way that (2) admits of empirical verification.”[14] In other words: statements of fact can be proved or disproved with evidence. In this context, phrases such as “Better Pizza” or “Better Ingredients” are non-actionable puffery because they are exaggerated blustering and boasting upon which no reasonable consumer would rely.[15] The court reasoned that “better” as applied to “pizza” and “ingredients” was not a word subject to verification by any evidence.[16]
Discussion
Supplement Industry Trends Constitute False Advertising
Prominent advertisement strategies used by supplement companies on social media may constitute false advertisement. One leading tactic is to market supplements using an influencer that takes performance enhancing drugs to achieve a physique unattainable to natural humans. Doing so gives the impression that the influencer’s physical condition was achieved by the supplements rather than any performance enhancing steroids. FTC regulations require that endorsements by influencers “must reflect … [the] experience of the endorser.”[17] This is often not the case. In a recent and prominent instance, an influencer who marketed nutritional supplements known as the “Liver King” was revealed to be using $12,000 a month in steroids. He was subsequently sued by his followers for $25 million.[18] Industry experts estimate that roughly half of fitness influencers on social media are taking performance enhancing drugs, with many estimating the number to be much higher.[19]
When supplement companies market their products using influencers who attained physiques unnaturally, they are likely employing misrepresentations that are material to the purchasing decision of reasonable consumers. This is because the average consumer is unlikely to be able to distinguish whether an influencer has achieved results from using the advertised supplements or with anabolic steroids. Indeed, many influencers hide their steroid use because use of the drugs may be illegal in their country and transparency would jeopardize sponsorships.[20]
Sport supplement companies also mislead customers by misrepresenting ingredients on labels.[21] Studies have demonstrated that 89% of sport supplements sold online contain falsely labeled ingredients.[22] This includes 40% of supplements that list ingredients not contained in any measurable quantity.[23] Worse yet, many bodybuilding supplements contain unlisted ingredients that may pose serious health risks.[24] These hidden ingredients are often small doses of anabolic steroids or steroid-like substances.[25]
Mislabeling ingredient lists plainly constitutes a misrepresentation and/or an omission. Consumers lack the advanced equipment required to test what supplements actually contain. They are, therefore, entirely dependent on what is listed on the label. Reaching desired macronutrient goals for protein and calories as well as micronutrient goals for vitamins, minerals, and fiber is important for consumers interested in health and fitness. A given supplement advertised as containing specific quantities of these nutrients is, therefore, a material factor to the purchasing decision of reasonable consumers.
Finally, supplement companies often employ misleading slogans and phrases. Experts question whether phrases like “help weight loss” or “improve brain functioning” should be considered misleading.[26] The Federal Food, Drug, and Cosmetic Act requires that “the manufacturer of the dietary supplement has substantiation that such statement is truthful and not misleading.”[27] The FTC applies a similar requirement.[28] However, many companies attempt to combat this requirement by manufacturing and manipulating ad hoc research to suit their needs.[29] For example, studies may demonstrate positive results by extrapolating data from untrained participants to trained individuals or from nutrient deficient individuals to those who already meet nutrient requirements – thus failing to control for essential variables.[30] A high performing athlete or someone who already meets their nutritional goals is unlikely to experience the same results from taking a supplement. Another common strategy is to hand-pick outlier studies that in conflict with more supported scientific knowledge.[31] Additionally, companies may include ingredients scientifically shown to improve performance, but include quantities far lower than those used in the studies.[32]
Because FTC resources are finite, these fringe studies may often provide enough cover for unscrupulous manufacturers to avoid scrutiny. Nevertheless, advertising supplements by using broad health claims without adequate substantiation is a per se violation of Section 5 of the FTC Act and constitutes false advertisement.[33]
Puffery Is Not Applicable
The common industry practices described above do not fall into the realm of puffery. The claims being made – that a given influencer achieved their results through the use of the advertised supplement or that the advertised supplement contains a certain quantity of a given ingredient – are not opinion based or generalized claims of superiority. Rather, these claims are factual misrepresentations which mislead consumers and obscure reality.
The use of slogans and phrases with broad health benefit related claims also fails to satisfy the requirements of puffery. Such phrases are more accurately characterized as statements of fact that can be found true or false with empirical evidence. Indeed, supplement companies’ use of studies with alleged scientific support disqualifies the possibility of puffery as a line of inquiry.
Conclusion
The desire to be physically fit is widely held by most Americans.[34] However, for many, this desire can become an unhealthy obsession. Body Dysmorphic Disorder is reported to affect between 5 to 10 million people in the U.S. alone, though it is believed to affect far more.[35] The disorder becomes more prevalent with regular use of social media – the same place where supplements are frequently advertised.[36] The widely held desire for fitness combined with the sensitivity of the subject and its relation to mental illnesses puts the sports supplement industry in a powerful position to take advantage of large groups of the population. The common practices examined above are likely violations of FTC guidelines, putting supplement companies in legal jeopardy. By avoiding these trends and advertising with transparency about what supplements contain and can do, companies can better protect themselves from costly interference by the federal government.
[1] Belle Wong, Top Social Media Statistics and Trends Of 2023, Forbes, https://www.forbes.com/advisor/business/social-media-statistics/#source (last updated May, 18, 2023 2:09 PM).
[2] Id.
[3] Audrey Rawnie Rico, What Social Media Advertising Is, How It Works & What It Costs, Fit Small Business, (May 18, 2023) https://fitsmallbusiness.com/social-media-advertising/.
[4] Stephanie Harlow, How Effective Are Ads on Social Media?, GWI, (June 5, 2023) https://blog.gwi.com/trends/ads-on-social-media/.
[5] FTC Issues Orders to Social Media and Video Streaming Platforms Regarding Efforts to Address Surge in Advertising for Fraudulent Products and Scams, Federal Trade Commission, (Mar. 16, 2023) https://www.ftc.gov/news-events/news/press-releases/2023/03/ftc-issues-orders-social-media-video-streaming-platforms-regarding-efforts-address-surge-advertising
[6] Nils-Gerrit Wunsch, Sports Nutrition Market Worldwide From 2021 to 2030, Statista, (Sep 6, 2023) https://www.statista.com/statistics/450168/global-sports-nutrition-market/.
[7] Id.
[8] Sarah Keane, Three Quarters of Sports Supplements Use False Advertising, EuroWeeklyNews, (Jan. 30, 2021 16:33) https://euroweeklynews.com/2021/01/30/three-quarters-of-sports-supplements-use-false-advertising/.
[9] Federal Trade Commission Act, 15 U.S.C. §45(a)(1).
[10] Federal Trade Commission Act, 15 U.S.C. §52(a)(1).
[11] FTC Policy Statement on Deception, FTC, (Oct. 14, 1983) https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf.
[12] Id.
[13] Pizza Hut, Inc. v. Papa John’s Intern., Inc., 227 F.3d 489, 497 (5th Cir. 2000).
[14] Presidio Enterprises, Inc. v. Warner Bros. Distributing. Corp., 784 F.2d 674, 679 (5th Cir. 1986).
[15] Pizza Hut, 227 F.3d at 498-99.
[16] Id. at 499.
[17] 16 C.F.R. §255.1(a).
[18] Catalina Goanta, The Rise and Fall of the Liver King—a Social Media Sensation Who is Now Being Sued by His Followers for $25 Million, Fortune, (Jan. 31, 2023 1:17 PM) https://fortune.com/2023/01/31/liver-king-youtube-sued-by-followers-regulating-influencers/.
[19] Lindsay Dodgson, Rachel Hosie, Steroids are Rampant Among Fitness Influencers, Trainers and Bodybuilders Say. Most Use in Secret, Claiming their Gains Come From Workouts and Diet Plans., Insider, (Feb. 3, 2022 9:10 AM) https://www.insider.com/fitness-influencers-steroids-secret-dangerous-body-dysmorphia.
[20] Id.
[21] Justin Jackson, Researchers Find 89% of Sports Supplement Labels False, Ingredients Fraudulent and Some Laced with Illegal Drugs, Medial Xpress, (July 25, 2023) https://medicalxpress.com/news/2023-07-sports-supplement-false-ingredients-fraudulent.html.
[23] Clare Watson, 40% of Sports Supplements Don’t Contain Ingredients On The Label, US Study Finds, ScienceAlert, July 24, 2023) https://www.sciencealert.com/40-of-sports-supplements-dont-contain-ingredients-on-the-label-us-study-finds.
[24] Tainted Body Building Products, U.S. Food and Drug Administration, https://www.fda.gov/drugs/medication-health-fraud/tainted-body-building-products (last visited Sep. 21, 2023).
[25] FDA Warns About Steroids or Steroid-Like Substances in Bodybuilding Products, Nutraceuticals World, (May 18, 2022) https://www.nutraceuticalsworld.com/contents/view_breaking-news/2022-05-18/fda-warns-about-steroids-or-steroid-like-substances-in-bodybuilding-supplements/.
[26] Keane, supra note 8.
[27] Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §343(r)(6)(B).
[28] FTC Policy Statement Regarding Advertising Substantiation, FTC, (Nov. 23, 1984) https://www.ftc.gov/legal-library/browse/ftc-policy-statement-regarding-advertising-substantiation.
[29] Daniel Yetman, How Sports Supplement Companies Manipulate Research, Sliced by Fed, (Mar. 3, 2022) https://fedfedfed.com/sliced/how-sports-supplement-companies-manipulate-research.
[30] Id.
[31] Id.
[32] Id.
[33] FTC Policy Statement Regarding Advertising Substantiation, supra note 28.
[34] Amy Norton, Study: Americans Want to be Fit, But Don’t Put in the Work, United Press International, (June 20, 2017 11:09 AM) https://www.upi.com/Health_News/2017/06/20/Study-Americans-want-to-be-fit-but-dont-put-in-the-work/2821497970498/#:~:text=More%20than%20three%2Dquarters%20of%20U.S.%20adults%20said%20that%20being,were%20not%20physically%20strong%20enough.
[35] Katharine Phillips, Prevalence of BDD, International OCD Foundation, https://bdd.iocdf.org/professionals/prevalence/ (last visited Oct. 5, 2023).
[36] How Social Media Can Harm Your Body Image, Cleveland Clinic, (July 21, 2023) https://health.clevelandclinic.org/social-media-and-body-image/.
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