Why the Hype Just Keeps on Coming

Increased scrutiny of advertisers' claims for their products is unlikely to do much to temper their overheated pitches

by Pallavi Gogoi

You're just two pills away from a fabulous new you!

For many in a rapidly growing line of foods, beverages, and cosmetics, that's the underlying message when it comes to selling medicinal or therapeutic benefits. But grandiose health claims may soon be facing more challenges. Consider the recent furor over Enviga, a sparkling green-tea drink marketed jointly by Coca-Cola (KO) and Nestlé (NSRGY). The beverage, which made its national debut Feb. 5, claims to spur weight loss. It has garnered heavy criticism, along with a lawsuit against the companies by the Center for Science in the Public Interest challenging the scientific basis for the drink's claims.

Controversy over Enviga has even led the Food & Drug Administration to consider whether it should regulate food and drinks that claim drug-like benefits. In February, Connecticut Attorney General Richard Blumenthal began investigating Enviga's claims, which he called "voodoo nutrition."

Hype and Anti-Hype

Why so much product hype? Companies typically face scant public censure when it comes to outrageous product claims. Even if a government agency, plaintiff, or activist cries foul, there's often little penalty to be paid. The few weeks or months that most companies' ad campaigns run are usually over before anyone gets exercised over their claims. By then the companies have already achieved their objective of goosing sales and the public is often unaware of any court rulings or government orders against the ads.

It is true that exaggeration and hype have long been part of selling consumer products. But now an increasingly large array of products are being aggressively marketed to an affluent generation of aging Baby Boomers, consumers who have shown a marked willingness to pay to stave off the effects of age, weight, wrinkles, or fatigue.

That is sparking a backlash from consumer activists and regulatory agencies, which are cracking down on some of the activities and taking additional legal action. "There's little evidence in many of the claims that products tout today," says Marion Nestle, nutrition professor at New York University. "But the government has just rolled over and played dead when it comes to monitoring these claims." FDA officials did not immediately comment on the agency's position.

Merely a Slap on the Wrist

In 2005, a federal judge ruled as false and misleading a Listerine mouthwash ad campaign by Pfizer (PFE). The ad claimed that Listerine was as effective as flossing in fighting tooth and gum decay. The judge in that suit ruled that the claim even poses a public health risk. In the previous year, the Federal Trade Commission charged KFC, the restaurant chain owned by Yum! Brands (YUM), that it made false claims in a national TV advertising campaign. The company claimed that eating two of its Original Recipe fried chicken breasts was healthier than eating a Whopper, the signature hamburger of Burger King (BKC).

In a settlement with the FTC, Yum agreed not to trumpet such claims in future ads. The KFC case "signals food advertisers that the FTC will not tolerate misleading advertisements to consumers who are trying to eat healthier and watch their weight," warned FTC Chairman Timothy Muris. But companies clearly find that it's easier to go ahead with the claims in ad campaigns and deal with the harmless consequences later.

In many cases, the advertising has already run its course by the time the claims are investigated by the National Advertising Division of the Council of Better Business Bureaus. The NAD is a voluntary self-regulation program of the advertising industry which investigates the accuracy of advertising claims. On Feb. 1 the group asked that McNeil-PPC, a division of Johnson & Johnson (JNJ), modify its advertising claims for its Tylenol Rapid Release Gelcaps. Specifically it said the message—that the pills are the "latest" and "a breakthrough in pain relief"—was a stretch. McNeil had already discontinued the ads that the NAD was investigating. However McNeil spokeswoman Bonnie Jacobs said that McNeil in future ads will "clarify that such claims pertain to an advance in gel-coated Tylenol products."