Unsubstantiated pain relief claims and deceptive native ads are prohibited

Advertisements for a product called Willow Curve appear to be a ray of light for consumers struggling with severe or chronic pain. But the FTC alleges marketers made false and unsubstantiated claims about the product, a device that applies low-intensity light and gentle heat to painful areas, costing between $599 and $799 in the process. The proposed settlement also sheds light on the FTC’s continued focus on deceptive native advertising.

The complaint names two Michigan companies: Physician’s Technology, LLC and Willow Labs, LLC, as well as two individuals associated with the companies: Dr. Ronald Shapiro and David Sutton. In ads on national television, satellite radio, online and on social media, the defendants claimed to be helpful for patients with rheumatoid arthritis, diabetic neuropathy, nerve damage, shingles, fibromyalgia, lupus, and torn tendons. and other serious medical conditions, the light-emitting Willow Curve will provide “real, long-lasting, proven pain relief without the cost, risk or inconvenience associated with elective surgery, prescription drugs or office visits.” The defendants also Sells Willow Curve through a network of dealers and distributors and provides them with promotional materials promoting the product’s purported health benefits.

What’s more, the defendants claim there are clinical studies to support their claims about Willow Curve and that the FDA has reviewed and approved the device’s advertised pain relief and other health benefits. The Federal Trade Commission disputes these claims as false.

The complaint also alleges that the defendants promoted “risk-free” and “money-back” guarantees to consumers if consumers were “not completely satisfied” within a specified period of time. But the FTC said that in many cases, the defendants required consumers to go through hoops to recoup their high purchase prices, such as first undergoing 92 “treatments” within 180 days. According to the complaint, the requests were hidden behind hyperlinks or in documents hidden within Willow Curve boxes. Although defendants claimed they were refunded within seven to 10 business days, the FTC said some people never got their money back. Others received refunds after a year or more or only after reporting the defendants to the state attorney general or Better Business Bureau.

Another noteworthy count relates to the defendant’s use of native advertising. For example, what appears to be an online magazine article, “Understanding the Gender Gap in Sports Injuries and Treatment,” is actually an advertisement for Willow Curve. According to the FTC, the defendants hired a marketing firm to write this and other articles that looked much like non-advertising content in the magazines and newspapers in which the ads appeared. The complaint alleges that the articles were not identifiable as advertisements, including when consumers posted or shared them on social media or via email.

The settlement includes a $22 million judgment, which will be partially suspended when defendants Shapiro and Sutton each pay $200,000, depending on the defendants’ financial circumstances. Among other things, the proposed order requires defendants to conduct randomized, double-blind, and placebo-controlled testing to support broad pain relief claims. The order also prohibits them from stating or implying that the ads are statements or opinions from independent publishers or sources.

This case illustrates some issues of interest to advertisers.

Back up your pain relief claims with solid science. There is a predictable cycle. As more consumers experience chronic and severe pain, more and more marketers are positioning their products as purported treatments. What’s next? Law enforcement is concerned about the allegedly unsubstantiated claims. Break the chain by ensuring your pain relief commitment is backed by appropriate evidence. This includes how consumers may interpret your FDA clearance or approval statement.

Avoid refund circles. For consumers who may be on the fence about purchasing, the prospect of a hassle-free refund is important. If your money-back guarantee comes with conditions, clearly disclose those conditions before consumers purchase the product, and make good on your promise if they want a refund.

Advertisements should not pretend to be independent content. Native advertising may be a new term, but the FTC’s concerns about deceptive ad formats date back decades. Should your company review the Federal Trade Commission’s Enforcement Policy Statement on Deceptive Format Advertising and Native Advertising: Guidance for Businesses?

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