Nautilus’s Bowflex TreadClimber just became the latest example of enforcement action against a health and fitness product by the National Advertising Division (NAD), a voluntary advertising self-regulatory body administered by the Better Business Bureau. More specifically, the NAD determined that Nautilus could not support its claim that one could lose substantial weight solely by using its product.
The TreadClimber combines the movements of a treadmill, a stepper and an elliptical machine. The television advertisement for the product, which featured the slogan “all you have to do is walk,” included a section where a man and two women discussed their substantial weight loss (60, 110, and 130 lbs), which was reinforced with visual images (such as picture of a woman when she was substantially heavier). It also discussed the mechanism of the TreadClimber with the claim that it could “burn up to two and a half times the calories of a treadmill in as little as 30 minutes three times a week.”
The NAD found that the users’ testimonial statements “all I had to do was walk” and the accompanying visual imagery conveyed a direct message that merely walking on the TreadClimber would lead to substantial weight loss. (As I’ve noted in a prior article, customer testimonials are subject to the same false advertising laws as a company’s own representations.)
The NAD further found that Nautilus had no scientific evidence to support this claim. The only relevant study identified by Nautilus lacked sufficient detail as a whole, was only for a six-week period (which was substantially shorter than the time period identified by the testimonials and insufficient to support Nautilus’s claims), and did not appear to be designed or conducted by scientific experts. Further, the study’s subjects were given an optional meal plan but their compliance was not tracked, which made it impossible to discern the weight loss attributed to using the TreadClimber as opposed to other lifestyle changes.
Nautilus argued that a disclaimer featured in the advertisement clarified that the “all you have to do is walk” claim merely meant that a customer only had to walk to burn calories using the TreadClimber. The disclaimer at issue—which the NAD described as tiny and barely legible—contained a disclaimer that “Individual results will vary. In a recent study average fat loss for participants over 6 weeks was 18.8 lbs. Average weight loss was 17.4 pounds. Participants also followed the meal plan included with their TreadClimber.”
The NAD found that the disclaimer was insufficient for two reasons. First, it contradicted the main message of the commercial. Second, there was no evidence that the study participants identified in the disclaimer actually followed a meal plan. The NAD thus recommended that the portion of the disclaimer discussing the meal plan be discontinued.
Though “respectfully disagreeing” with the NAD’s decision, Nautilus has said that it will comply with the NAD’s recommendation to discontinue the “all you have to do is walk” representation in the context of advertising that connects weight loss to use of the TreadClimber. Nautilus will also comply with the NAD’s recommendation to discontinue the portion of the disclaimer relating to following a meal plan.
This case is a good reminder that visual cues from an advertisement are indispensable elements of the overall message conveyed. Here, the testimonials of people who lost substantial weight, combined with the visual images showing substantial weight loss, indicated that Nautilus’s “all you have to do is walk” claim was not merely about burning calories, but of losing a significant amount of weight as well. The disclaimer attempting to walk back this claim was insufficient.
Thus, when creating an advertisement for a product, be very attentive not only to the claims expressly written or audibly spoken in the advertisement, but also to the accompanying visual images. As with Nautilus, the visual images could move an advertisement’s claims from arguably defensible to completely unsupported.