Why the Hype Just Keeps on Coming

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Despite increasingly strident calls for more oversight, it's highly unlikely that the government will regulate advertising and marketing claims, say industry experts. "Until there's some sort of disaster, don't expect the government to step in," says Robert Passikoff, president of Brand Keys, a brand marketing firm in New York. "It's the difference between the letter of the law and the spirit of the law—and government doesn't care about the spirit of the law."

Serious Health Risks

On Apr. 2 the NAD told Body Vibe International, which makes and markets an exercise machine called the Body Vibe Whole Body Vibration Unit, to discontinue its claims that its machine can help people who have osteoporosis, arthritis, sleep problems, Parkinson's disease, and diabetes, among many other conditions. The NAD also told the company to stop saying that top athletes and celebrities use its machines. "We say that it 'may' help you and that doesn't mean that for sure it will help you," says Dr. Keith DeOrio, a physician in Santa Monica, Calif., who consults with Body Vibe. "The sites and athletes who we are referencing do not use Body Vibe exactly but use the body vibration techniques and we will correct that in our Web site."

In some cases, activist groups say looking the other way could end up hurting the most vulnerable members of society. Last year the Campaign for a Commercial-Free Childhood filed a complaint with the FTC against Baby Einstein and Brainy Baby and BabyFirstTV. The consumer group says that the educational and developmental benefits touted in these extremely popular video packaging and Web sites run counter to the American Academy of Pediatrics' recommendation of no screen time for children under two. "These companies are exploiting parents' natural tendency to want what's best for their children and their deceptive marketing may be putting babies at risk," says Dr. Alvin Poussaint, director of the media center at the Judge Baker Children's Center, which is affiliated with Harvard Medical School.

Company executives dispute the assertion. "Baby Einstein products are designed as interactive tools for parents to use with their babies—helping parents to expose their little ones to the world around them in playful and enriching ways," says Michelle Jacob, spokeswoman for Baby Einstein, a division of Walt Disney (DIS).

Playing to Vulnerabilities

Other ads play to parents' vulnerabilities. On Jan. 12, the NAD recommended that Ross Products, a subsidiary of Abbott Laboratories (ABT), discontinue advertising claims for its Isomil Advance infant formula. In its ads and packaging, the formula claimed: "Clinical evidence supports that switching to Isomil Advance will reduce fussiness and spit-up in most babies in three days." However the NAD examined a 10-year-old study of a previous formulation of Isomil Advance and competing formulas and found it was insufficient to support the claims. Abbott spokeswoman Tracey Noe says: "We do not agree with the NAD recommendation, but we are strong supporters of the voluntary regulatory process and have agreed to modify our promotional materials for Isomil."

The NAD often ends up investigating some rather innocuous claims that are flagged for review by a company's rivals. For instance, on Apr. 2 the NAD recommended that the maker of Smart Balance Buttery Spreads remove its ad claiming that the product "cooks like butter, spreads like butter, and tastes like butter" because there's no proof of that claim. There was even a recent dust-up over dust. Colgate-Palmolive (CL), which makes Murphy Soft Wipes, complained that rival S.C. Johnson & Son should not be allowed to claim its Pledge spray is an "anti-dust" formula that keeps wood and furniture "less dusty, longer." The NAD agreed, citing insufficient evidence to support those claims.

"Expedient Exaggeration"

In the meantime Coca Cola is charging ahead with Enviga, saying it believes consumers understand that the drink is designed to complement, not replace, regular exercise and a sensible diet. It also says that it will not stop making its claims and that it has enough proof to show that the combination of caffeine and green tea extract invigorates metabolism. "Enviga is designed to work with your body to increase calorie burning. It creates a negative calorie effect—in other words, you burn more calories than you get from drinking it," says Rhona Applebaum, chief scientist at Atlanta-based Coca-Cola.

Clearly, marketers aren't concerned about the prospects for oversight. Maybe that's because they really are of an ilk defined as early as 1959 by the character of Roger Thornhill, a successful advertising executive, played by Cary Grant in the movie North by Northwest. As Thornhill memorably put it, "In the world of advertising, there's no such thing as a lie. There's only expedient exaggeration."

Gogoi is a contributing writer for BusinessWeek.com.