Endorsement enforcement: Deceptive diabetes claims challenged

Archeologists report that the first mention of diabetes was in a papyrus excavated from an Egyptian tomb. Roll the scroll out a bit and it wouldn’t surprise us to find an ad (in hieroglyphics, of course) for a pill or potion promising a miracle treatment. Questionable diabetes products have been around for centuries and the latest one to attract law enforcement attention is a dietary supplement called Nobetes. A just-filed FTC action challenges false and unsubstantiated advertising claims, deceptive testimonials, and a stealthy continuity plan, which led to unauthorized charges on consumers’ credit cards.

Ads for Nobetes touted it as a “miracle product” to address the serious medical risks diabetics face: “Did you know that diabetes is the leading cause of new blindness, kidney failure and 60 percent of all non-traumatic lower limb amputations? Are you waiting for one of these to occur before you take action? . . . Attack the problem now and naturally with Nobetes.” Other ads opened with this Q&A: “Is your diabetes out of control? . . . Are your blood sugar numbers dangerously high? You need to try the all-natural supplement called Nobetes.”

Ads featured consumer endorsers who claimed to achieve impressive results, sometimes immediately: “The first pill I took, I could feel a difference. I went from 549 to 112 in 24 hours with Nobetes.” According to another endorser, “At nighttime, I had tingling in my arms and dry mouth and even blurry vision. This has all gone away just by taking a pill.” Others claimed that Nobetes allowed them to reduce or even stop their use of insulin or prescription drugs. According to another user, he could control his diabetes without changing his diet simply by taking Nobetes: “I still eat the same old crap I always did. But once I eat all that crap, my sugar will go up. But when I take my Nobetes after dinner, by evening, I’m right back where I was when I started.”

For consumers looking for an expert opinion about the product, ads for Nobetes featured the recommendation of “Mitch Darnell, MS, OSM, CTRC.” Posed in front of two diplomas, he described Nobetes as “an all-natural dietary supplement that helps control blood sugar within normal levels.” Furthermore, according to Darnell, “Nobetes has 35 supplements in it that can fill the nutrient shortages that diabetes causes. . . . Diabetics, this is the miracle product you’ve been waiting for.”

For consumers still on the fence, many Nobetes ads touted a free trial: “Get two bottles free. Just pay processing and handling. Nobetes, it will change your life forever.”

But according to the FTC, the operative word for many of Nobetes’ practices was “no” – no sound science to support their dramatic treatment claims, no mention that consumers who appeared in the ads received free product, no scientific or medical background for purported expert Mitch Darnell (in fact, he was an actor), no clear and conspicuous disclosure that consumers who received the “free” bottles would be enrolled in a negative option continuity program, and no express informed consent for billing consumers’ credit cards as much as $50.60 each month.

To settle the case, the proposed order against Nobetes Corporation and officers Marvin Silver and Jeffrey Fleitman includes a $182,000 financial judgment and bans them for life from promoting any diabetes-related product. Furthermore, they’ll need human clinical testing to substantiate any future disease treatment claims. Other health representations will need competent and reliable scientific evidence. The order also prohibits deceptive endorsements and requires the defendants to disclose any material connection to endorsers. In addition, the order puts provisions in place to make sure the defendants have consumers’ express informed consent before enrolling them in any negative option program. They’ll also need to provide a simple mechanism to cancel future shipments.

If we could amend that ancient papyrus about diabetes, what compliance guidance would future advertisers find?

Companies need solid science to support claims conveyed through endorsements. If an advertiser doesn’t have appropriate clinical testing to support a disease treatment claim, don’t try to sneak it through the side door by conveying the same representation in a consumer testimonial. As the FTC Endorsement Guides state, “[T]he advertiser must possess and rely upon adequate substantiation” to support claims made through endorsements “in the same manner the advertiser would be required to do if it had made the representation directly.”

Experts need to be expert. In considering treatments for diabetes or other serious conditions, consumers are likely to give substantial weight to the word of endorsers portrayed as medical or scientific experts. Therefore, advertisers must ensure their endorsers: 1) have the appropriate expertise in the relevant field; and 2) have evaluated the product in a way other experts believe is necessary to support the conclusions presented in the endorsement.

Don’t say we didn’t warn you. The proposed settlement with Nobetes wasn’t the company’s first brush with government agencies. In 2016, the FTC and FDA sent them a joint warning letter, citing multiple advertising claims that raised substantiation concerns. The letter reminded them of the rigorous scientific standard needed to support disease-related representations and warned that “failure to promptly correct these violations may result in legal action.” When Nobetes continued to make misleading claims, the FTC followed through on that warning. Savvy marketers don’t need a second reminder. If your company gets a warning letter – or if you’re engaging in practices that have landed other companies in legal hot water – it’s time for a reassessment.