Dr. Oz.
Dr. Oz. (Photo: David Berkowitz via Wikimedia Commons)

The notion that a pill—or a lotion or powder or tea—could magically make you thin without dieting or exercise never seems to lose its appeal.

Since 1927, the Federal Trade Commission has brought more than 250 cases against makers of fraudulent weight-loss products, to little avail: Americans still spend billions each year on such products, and are fatter than ever.

On Tuesday, a U.S. Senate subcommittee looked at deceptive weight-loss ads and the FTC’s efforts to combat them without running afoul of First Amendment commercial-speech protections.

Members of the Committee on Commerce, Science and Transportation’s subcommittee on consumer protection, product safety and insurance also grilled Mehmet Oz, host of The Dr. Oz Show, for his role in extolling various weight-loss products, which he has described, for example, as a “miracle in a bottle” or “magic bean.”

“Where there is strong consumer interest, unfortunately fraud often follows,” Mary Koelbel Engle, head of the division of advertising practices in the FTC’s Bureau of Consumer Protection, said in her testimony. “The endless flood of unfounded claims being made in the weight-loss industry vividly illustrates the challenges we, and consumers, are up against.”

Engle reported that more consumers reported being the victims of phony weight-loss products than any other fraud in a 2011 agency survey.

Since 2010, the FTC has collected more than $107 million in consumer restitution, including $34 million in January when the agency settled four cases against marketers touting food additives, human hormones, skin creams and acai berries for weight loss.

The consent decrees resolving those cases laid out a new—and controversial—standard, requiring the companies to conduct “two adequate and well-controlled human clinical studies” to back up any weight-loss claims.

Such a requirement “is not only outside of the statute, but leads to unnecessary and inefficient use of resources, which chills innovation and disincentivizes the very research needed to substantiate claims,” Daniel Fabricant, executive director of the Natural Products Association, told the subcommittee.

For example, if a company had only one study, it would be unable to share that result with consumers, he said. “This is a critical concern, as it appears to abridge protected speech, which could constitute a violation of the Administrative Procedure Act or present possible First Amendment issues.”

Sen. Dean Heller, R-Nev., was sympathetic, questioning whether the requirement was “consistent with constitutional protection for freedom of speech.”

The issue is now before the U.S. Court of Appeals for the D.C. Circuit in a related case involving the FTC’s requirement that POM Wonderful LLC conduct two human clinical studies before making claims about the health benefits of pomegranate juice.

Engle defended the two-study requirement for weight-loss products. “Given the level of fraud, it’s important to have the extra assurance of a second study,” she said. She also said not all health benefit claims are viewed equally by the FTC.

“A claim to treat cancer requires a higher level of evidence than a claim that your product will soothe dry skin,” she said.

Sen Claire McCaskill, D.-Mo., questioned why the FTC hasn’t gone after media outlets for running deceptive ads. “I find it troubling that broadcast and satellite radio witnesses who were asked to be here today were unwilling to appear,” said McCaskill, who chairs the subcommittee. “To me, this indicates that either there is something to hide or they don’t have a good story to tell.”

Engle said that Section 12 of the FTC Act gives the agency the authority to hold media outlets liable for running false ads, but that the media also enjoys “significant First Amendment protection. … We thought it made more sense to work with the media cooperatively, voluntarily.”

The FTC in January issued update guidance, Gut Check: A Reference Guide for Media on Spotting False Weight Loss Claims, flagging seven “can’t-be-true” weight-loss claims to help media outlets spot bogus ads before they’re run.

The toughest questioning at the hearing was reserved for Oz, vice chairman and professor of surgery of at New York Presbyterian Hospital at Columbia University as well as the host of a syndicated television talk show.

Oz said deceptive weight-loss product ads are “an uncontrolled wildfire,” but McCaskill took him to task for making wild claims of his own.

“When you feature a product on your show it creates what has become known as the ‘Dr. Oz Effect’—dramatically boosting sales and driving scam artists to pop up overnight using false and deceptive ads to sell questionable products,” she said. “I am concerned that you are melding medical advice, news and entertainment in a way that harms consumers.”

Oz responded that his “flowery language” may “provide fodder for unscrupulous ads,” but he also defended the use of supplements, natural products and alternative therapies like “the power of prayer.”

McCaskill shot back, “Prayer is free.” She added: “We didn’t call this hearing to beat up on you … but there is a real crisis in consumer protection.”

Contact Jenna Greene at jgreene@alm.com or on Twitter @JGreeneJenna.