Electronic Retailer - November 2011 - 42

BY GREG SATER

The Legal Perils, Pitfalls and Puffery of Advertising Body Shaping Benefits
CHANNEL CROSSING: LEGAL
If you advertise a product that promises a body transformation benefit (such as body shaping, weight loss, girth reduction or the toning, sculpting or shaping of muscles) then you know that, as a general rule, the category is a popular target for litigation. So far, this year has been no exception. Below, I will touch upon two interesting false advertising cases that were filed and, at least in part, resolved in August of this year involving products that promised body transformation benefits. The first case was a consumer class action challenging an advertising claim that Fila made for its BTS, or Body Toning System, line of women’s apparel: “Sculpt. Tone. Amaze.” Fila won a motion to dismiss based on the legal doctrine of puffery. The second case was an FTC action that challenged an advertising claim – “redefine the appearance of your silhouette” – Beiersdorf made for its “My Silhouette!” gel. Beiersdorf settled that case with the FTC for $900,000 and a consent decree. claims that have been made by Fila for its BTS line of clothing, such as Fila’s claim of a “50 percent increase in muscle workouts” when wearing the apparel.)

“Redefine the Appearance of Your Silhouette!”
In the Beiersdorf case, Beiersdorf sold a Nivea product called “Nivea My Silhouette! Redefining Gel-Cream with Bio-Slim Complex” using a TV commercial that depicted a woman getting an old pair of jeans out of the back of her closet, trying them on and happily discovering that they still fit while the narrator said: “New Nivea My Silhouette! with Bio-Slim Complex helps redefine the appearance of your silhouette and noticeably firm skin in just four weeks … so you can rediscover your favorite jeans and how they still get his attention.” In addition to the TV spot, Beiersdorf also paid for keywords on Google in order to come up in the search results whenever people searched for the terms “stomach fat,” “thin waist” or “Nivea slim silhouette.” In the ad text that would come up on Google in response to searches for those terms, Beiersdorf’s ads would say that the product could “redefine the appearance of your curves” or could “redefine the appearance of the body’s contours.” According to the FTC, all this conveyed that use of the gel-cream would result in significant reductions in body size, something for which Beiersdorf, the FTC said, lacked sufficient substantiation. In August, the commission issued a decision and order, with which Beiersdorf agreed, calling for the company to pay $900,000 and prohibiting it from ever again representing that any drug, dietary supplement, or cosmetic “causes weight or fat loss or a reduction in body size” unless, at the time the representation is made, the company possesses and relies upon “competent and reliable scientific evidence.”

“Sculpt and Tone”
In its BTS line of women’s apparel, Fila has sold pants, shorts and tank tops with labels saying: “Sculpt. Tone. Amaze.” The BTS labels also have said: “ Our unique blend of strategically placed, double-layered panels at the calves, buttocks, thighs, waist and back compress active muscles as you move. The result? A 50 percent increase in muscle workouts,” and “Providing 41 percent more support than traditional polyester or spandex athletic leggings, the Fila Body Toning System makes it look like you’ve met your fitness goals.” The plaintiff alleged that based on these statements she had believed that Fila had competent scientific results proving that the BTS apparel would “sculpt” and “tone” a woman’s body. She filed suit as a class action on behalf of all purchasers. In August, the court rejected her claim and agreed with Fila that the words “sculpt” and “tone” are mere puffery, rather than express warranties upon which a reasonable consumer can rely. What is puffery? The case law defines it as a “generalized, vague and unspecified assertion upon which a reasonable consumer could not rely.” It also has been defined as an “exaggerated statement, blustering or boasting on which no reasonable buyer would rely.” The court in the Fila case focused on the words “sculpt” and “tone” and concluded that they are puffery; they are not “a specific and measurable claim capable of being proved false;” that is, they are not statements of fact. (It should be noted that the court in the Fila case did give the plaintiff leave to amend. That may result in her refocusing her case on the more quantifiable advertising 42

What Does the Future Hold?
In other words, in terms of false advertising cases for products that promise body transformation benefits, in one case this August, the words “sculpting” and “toning” were held to be non-actionable puffery, such that Fila would bear no liability for having used those words for its “Body Toning System” line of apparel. In another case the very same month, the Beiersdorf case at the FTC, the words “redefining the appearance of your silhouette” and “redefining the body’s contours” resulted in significant liability for Beiersdorf. Go figure. Greg Sater is an attorney.

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Electronic Retailer - November 2011

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