Could the FTC Go After Publishers for Carrying Deceptive Ads?

To what extent is media expected to interpret?

After the Federal Trade Commission’s hammer came down earlier this month on deceptive weight-loss aids, settling with Sensa and others for a record $34 million and updating its 10-year-old media “gut check” guide, broadcasters and publishers may need to be on their toes. Federal regulators were dismayed when media brands like Parade, ShopHQ and Shape were among those carrying ads for weight-loss products swept up in its enforcement action.

The FTC could one day decide to bring action against a media outlet for “disseminating” false food, drugs, devices, services or cosmetics ads. So far, that hasn’t happened because it could raise First Amendment issues.

“I would be shocked if the FTC ever tried to go after a media outlet,” noted Amy Mudge, a partner with Venable.

For now, compliance is voluntary. “We tried to make it as simple as possible. We don’t expect the media companies to look too deep,” said Mary Engle, the FTC’s associate director of advertising practices. The FTC also provided more clues about how to spot “outlier” testimonial claims that often deviate from typical results. The rule of thumb: If it’s too good to be true, it probably is.

Despite better guidance, spotting deceptive ads may not be so easy, especially when advertisers get creative. “To what extent is media expected to interpret? Certainly no media outlet would be in a position to evaluate clinical testing,” said Linda Goldstein, a partner with Manatt, Phelps & Phillips. “The vast majority of advertising won’t contain literal statements.”