LOS ANGELES, CA / WASHINGTON, DC (September 3, 2004) – In a decision that limits the circumstances under which an advertising spokesperson can be held responsible for product claims, the Ninth Circuit Court of Appeals in Pasadena has ruled that former baseball star Steve Garvey is not liable for statements he made while appearing in two infomercials for weight loss supplements.
In 2000, the Federal Trade Commission had filed suit against Mr. Garvey along with producers of infomercials for manufacturer Enforma Natural Products of Encino, California. The FTC claimed false advertising and other violations of the Federal Trade Commission Act in connection with the ads for the “Fat Trapper” and “Exercise in a Bottle,” weight loss supplements constituting the “Enforma System.”
But the Ninth Circuit, in an opinion filed September 1, affirmed a District Court’s finding in favor of Mr. Garvey since the FTC had failed to show that Garvey intentionally or recklessly made false claims about the Enforma System.
This is the highest ruling covering FTC policies on celebrity endorsements, and the most significant since a settlement involving singer Pat Boone for his endorsement of an acne medication in the 1970’s.
Venable LLP attorney Edward Glynn, who represented Mr. Garvey, applauded the court’s decision.
“The Court set a very high standard of liability regarding celebrity endorsements and testimonials,” Mr. Glynn said.
But he added a warning for well-known personalities who provide product endorsements: “This isn’t carte blanche. If you’re a celebrity spokesperson, you have to take at least sufficient steps so someone won’t be able to say you were recklessly indifferent to the truth of product claims. You can’t just show up, and say ‘where’s my script?’.”
The Court noted that Garvey and his wife had used the Enforma System and lost weight. Additionally, Garvey had reviewed two booklets containing substantiation materials for the products being sold and had spoken with individuals and had experienced positive results using the Enforma System. The Ninth Circuit concluded that Garvey’s knowledge and the other steps he took were sufficient to “pass any substantiation requirement for celebrity endorsers.”
“Steve Garvey had no reason to think that what he was saying was untrue,” said Mr. Glynn, who is a member of Venable’sadvertising marketing, and new media practice, and is a former associate director at the FTC.
The Court also upheld the finding of the District Court that Garvey did not provide an “endorsement” as defined by the FTC, because the Commission failed to present any facts establishing that consumers were likely to believe that Garvey’s statements reflected his own opinions, rather than the manufacturer’s.
The Court also called on Congress and the FTC to clarify the rules that would apply to endorsers and celebrity spokespeople, as opposed to the advertisers themselves.
For more information or to schedule an interview with Mr. Glynn, please contact us.
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