ID at 60; IDF 270-72. The parties further stipulated that respondents did not have or rely on
substantiation that the Ab Force would have those effects. ID at 60; IDF 273.
8
refusal to require respondents to post a performance bond before selling or promoting any
“device,” as defined in Section 15 of the FTC Act, 15 U.S.C. § 55. Complaint counsel also
contend that the ALJ should have entered a broader order that would have prohibited
respondents, in the absence of substantiation, from making any claim for any product, service, or
program, instead of covering those products only when respondents made claims promoting their
efficacy or pertaining to health, weight loss, fitness, or exercise benefits.
II. The Challenged Representations
A. Legal Standard
An advertisement is deceptive if it contains a representation or omission of fact that is
likely to mislead a consumer acting reasonably under the circumstances, and that representation
or omission is material to a consumer’s purchasing decision. FTC Policy Statement on
Deception, 103 F.T.C. 174, 175 (1984) (“Deception Statement”); see, e.g., Novartis Corp., 127
F.T.C. 580, 679 (1999), aff’d, 223 F.3d 783 (D.C. Cir. 2000); Stouffer Foods Corp., 118 F.T.C.
746, 798 (1994); Kraft, 114 F.T.C. at 120. In addition, the Commission long has held that
making objective claims without a reasonable basis constitutes a deceptive practice in violation
of Section 5. FTC Policy Statement Regarding Advertising Substantiation, 104 F.T.C. 839
(1984) (“Substantiation Statement”); see, e.g., Automotive Breakthrough Sciences, Inc., 126
F.T.C. 229, 293 & 293 n.20 (1998); Jay Norris, Inc., 91 F.T.C. 751, 854 (1978), aff’d as
modified, 598 F.2d 1244 (2d Cir. 1979), cert. denied, 444 U.S. 980 (1979).
The primary evidence of what representations an advertisement conveys to reasonable
consumers is the advertisement itself. Deception Statement, 103 F.T.C. at 176; see, e.g.,
Novartis, 127 F.T.C. at 680; Stouffer, 118 F.T.C. at 798; Kraft, 114 F.T.C. at 121. Thus, to
determine whether an advertisement conveys a particular claim, the Commission looks at the
interaction between and among the constituent elements of the ad to determine the “net
impression” that is conveyed by the ad as a whole. Deception Statement, 103 F.T.C. at 178; see,
e.g., Novartis, 127 F.T.C. at 679; Kraft, 114 F.T.C. at 122. The Commission may rely on the ad
itself and need not resort to extrinsic evidence if the text or depictions are clear enough that the
Commission can “conclude with confidence” that the claim is conveyed to reasonable
consumers. Novartis, 127 F.T.C. at 680; see Stouffer, 118 F.T.C. at 798; Deception Statement,
103 F.T.C. at 176. If an alleged claim is not manifest from the text and images in the ad, the
Commission will look to “extrinsic evidence.” See Novartis, 127 F.T.C. at 680. Such evidence
might include common usage of terms, expert opinion as to how an advertisement might
reasonably be interpreted, copy tests, generally accepted principles of consumer behavior,
surveys, or “any other reliable evidence of consumer interpretation.” Cliffdale Associates, 103
F.T.C. 110, 166 (1984); see, e.g., Thompson Medical Co., 104 F.T.C. 648, 789-90 (1984) (expert
testimony; consumer survey), aff’d, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086