- "Ab Force" Faulted But Not Fined for Ad Claims
- October 14, 2004
- Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
An administrative law judge ordered infomercial marketer Telebrands to stop claiming that its Ab Force exercise belt provides certain fitness benefits, but did not levy fines against the company.
The judge found that the Federal Trade Commission, which had filed a complaint against the Fairfield, New Jersey company, had failed to prove its theory that Telebrands indirectly made false claims in the infomercial by referencing infomercials for similar products. The FTC announced the ruling on September 22, 2004.
The judge said that although Telebrands did not make direct claims about the purpose of its Ab Force product, it did state that the Ab Force is cheaper and "technologically comparable" to other exercise belts.
The FTC has successfully brought claims against other marketers of abdominal belts for making false claims about weight loss and exercise benefits of using the belts, which the agency says don't work. By referencing other ab belt infomercials, Telebrands was piggybacking on those false claims and thus was equally liable, the FTC argued.
The judge wrote that it was unclear from the evidence whether the FTC's theory was correct. But he said that Telebrands implied, through visual and other cues, that the Ab Force imparted these benefits, and thus misled consumers. By naming the product "Ab Force" and showing actors in the infomercial using the product to exercise abdominal muscles, Telebrands conveyed health claims that were misleading, the judge wrote.
The judge rejected Telebrands' argument that another use of the product would be to give a relaxing massage. "If there is an intended purpose or effect of using the Ab Force other than losing inches, weight or fat; building well-defined abs; or being an effective alternative to regular exercise, that purpose or effect was never identified in any of the Ab Force advertisements," the judge wrote.
Significance: The case is one of the first in which the FTC has pursued a theory that an infomercial marketer is liable for referencing competitors' infomercials that falsely claim a product benefit. The judge's ambivalence about the agency's theory is reflected in his ruling, in which he ordered Telebrands to cease referencing other infomercials, but did not impose a fine against the company.