March 2010 – Channel Crossing: Legal

Weight-Loss Battles Heat Up

The New Year ushers in the height of the diet season during which marketers of weight-loss programs and products vie aggressively for their share of the marketing pie. This diet season, however, has brought increased challenges for marketers of weight-loss products.

First, the Federal Trade Commission’s (FTC) newly issued testimonial and endorsement guidelines, which took effect in December 2009, have required most marketers of weight-loss products to reevaluate and edit their existing shows for compliance with the new guidelines. Absent clear direction from the Commission, marketers struggled to find creative ways to adapt existing shows to the new guidelines and to then secure clearance from the networks, some of whom have taken a somewhat conservative view of the guidelines’ requirements.

Online marketers of weight loss, business opportunity and other perceived high-risk products and services loss were greeted following the New Year with news that their merchant accounts were being shut down by MasterCard. Many of the impacted sites involved the marketing of products via free trials or other forms of negative option marketing, which are currently subject to intense scrutiny not only by the credit card companies but by the state attorneys general, the FTC and the class action bar. While the state of negative option marketing and card-on-file transactions are outside the scope of this article, it is safe to say that the landscape for these transactions is rapidly evolving and the future of post transaction marketing–at least in the online environment–remains uncertain.

While marketer attention has thus understandably been focused on regulatory and merchant account issues, a recent lawsuit filed by Weight Watchers against Jenny Craig serves as a striking reminder that your own competitors can be a powerful source of potential challenge, as well.

WEIGHT WATCHERS V. JENNY CRAIG
In mid-January, Weight Watchers filed a lawsuit under Section 43a of the Lanham Act against Jenny Craig. The Lanham Act is the section of the trademark law that allows competitors to sue one another over false and misleading advertisements. Remedies under the Lanham Act include injunctive relief and monetary damages, which can include treble damages where the deception is willful. At issue in this lawsuit are claims by Jenny Craig, in print, broadcast and online advertising that clinical studies prove that Jenny Craig’s clients lost over twice as much weight as those on the largest weight-loss program.

Although Weight Watchers is not explicitly named in the advertisements, the reference to the largest weight-loss program is a clear reference to Weight Watchers and there is ample case law supporting the proposition that a competitor does not need to be specifically named in order to bring a claim for false advertising against a competitor.

According to the Weight Watchers complaint, in order to support this claim, Jenny Craig relied on the results of two separate and independent tests–one conducted by Weight Watchers over 10 years ago and another conducted by Jenny Craig. The Weight Watchers study, which was conducted 10 years ago, was a randomized two-year trial that was actually designed to compare the weight-loss and health benefits achieved and maintained through self-help weight loss with a structured program. According to the complaint, the Jenny Craig study was designed to test in a randomized controlled trial whether participation in the Jenny Craig Centre-based program and/or the Jenny Direct program is associated with greater weight loss at six, 12 and 18 months and whether weight loss is maintained over a 24-month period compared to self-help conditions. Thus, neither study was designed to directly measure weight loss achieved on one program as compared to the other.

Weight Watchers has alleged in its complaint that the studies upon which Jenny Craig is relying cannot support the advertising claims at issue. First, according to Weight Watchers, although Jenny Craig’s advertisement compares Jenny Craig’s current weight-loss program to Weight Watchers’ current weight-loss program, the Weight Watchers clinical study was conducted on a program that was in existence over 10 years ago and is at least four generations removed from the current Weight Watchers program. Because the Weight Watchers program has undergone significant changes and modification during this 10-year period, Jenny Craig cannot compare the results of its weight-loss program to the results achieved on a Weight Watchers program that is no longer in effect.

Secondly, and perhaps most significantly, Weight Watchers has alleged that in order to support a comparative claim between Weight Watchers and Jenny Craig, Jenny Craig must conduct a randomized head-to-head test between the current Weight Watchers and current Jenny Craig programs. In essence, Weight Watchers is alleging that the only type of testing that can support a direct comparative claim between the two programs is a direct head-to-head test between the two. If Weight Watchers prevails on this point, this would certainly place at greater risk many current weight-loss advertisements that contain broad and often unqualified superiority claims without any corresponding head-to-head testing.

THE RAMIFICATIONS
This current battle between Weight Watchers and Jenny Craig is the latest in the series of brand wars that dominated the traditional advertising marketplace during the past year. A comparative advertising lawsuit under the Lanham Act can be a very powerful tool through which competitors can attack each other’s advertising. While direct response marketers have not resorted to Lanham Act litigation with the same fervor as traditional marketers, as the economic climate continues to place pressure on marketers and as branded products become more commonplace in direct response, it is possible that the brand wars trend will find its way into the direct response community as well. At the very least, this case between Weight Watchers and Jenny Craig is one that should be closely monitored by the direct response community, as it will certainly establish some important precedent regarding the type of substantiation required for these types of comparative claims.

Linda A. Goldstein is a partner and chair of the advertising, marketing and media division at Manatt Phelps & Phillips LLP in New York. She can be reached at (212) 790-4544.