[Federal Register Volume 62, Number 194 (Tuesday, October 7, 1997)]
[Notices]
[Pages 52340-52342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26525]


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FEDERAL TRADE COMMISSION

[Docket No. 9261]


Weight Watchers International, Inc., Analysis To Aid Public 
Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the complaint 
issued earlier and the terms of the consent order--embodied in the 
consent agreement--that would settle these allegations.

DATES: Comments must be received on or before December 8, 1997.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:
Richard Kelly, Federal Trade Commission, H-200, 6th & Pennsylvania 
Ave., NW, Washington, DC 20580. (202) 326-3304. Ronald Waldman, Federal 
Trade Commission, New York Regional Office, 150 William Street, Suite 
1300, New York, NY 10038. (212) 264-1207.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46, and Section 3.25 of 
the Commission's Rules of Practice (16 CFR 3.25), notice is hereby 
given that the above-captioned consent agreement containing a consent 
order to cease and desist, having been filed with and accepted, subject 
to final approval, by the Commission, has been placed on the public 
record for a period of sixty (60) days. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the accompanying complaint. An electronic copy of the 
full text of the consent agreement package can be obtained from the 
Commission Actions section of the FTC Home Page (for September 30, 
1997), on the World Wide Web, at ``<a href="http://www.ftc.gov/os/
actions97.htm">http://www.ftc.gov/os/
actions97.htm</a>.'' A paper copy can be obtained from the FTC Public 
Reference Room, Room H-130, Sixth and Pennsylvania Avenue, N.W., 
Washington, DC 20580, either in person or by calling (202) 326-3627. 
Public comment is invited. Such comments or views will be considered by 
the Commission and will be available for inspection and copying at its 
principal office in accordance with Section 4.9(b)(6)(ii) of the 
Commission's Rules of Practice (16 CFR 4.9(b)(6)(ii)).

Analysis of Proposed Consent Order to Aid Public Comment

    The Federal Trade Commission has accepted an agreement, subject to 
final approval, to a proposed consent order from Weight Watchers 
International, Inc. (hereinafter ``Weight Watchers'' or 
``respondent''), marketers of the Weight Watchers Weight Loss Program. 
The Weight Watchers Weight Loss Program is offered to the public 
nationwide through company-owned and franchised weight loss centers.
    The proposed consent order has been placed on the public record for 
sixty (60) days for the reception of comments by interested persons. 
Comments received during this period will become part of the public 
record. After sixty (60) days, the Commission will again review the 
agreement and any comments received and will decide whether it should 
withdraw from the agreement and take other appropriate action or make 
final the agreement's proposed order.
    The Commission's complaint alleged that the respondent made 
numerous unsubstantiated representations through consumer testimonials 
and other advertisements that:
    (1) Its customers are typically successful in reaching their weight 
loss goals and maintaining their weight loss under respondent's diet 
program;
    (2) Overweight or obese customers typically are successful in 
reaching their weight loss goals and maintaining their weight loss 
either long-term or permanently; and
    (3) Its weight loss programs are superior to other weight loss 
programs in enabling participants to achieve and maintain weight loss.
    The complaint further charges that Weight Watchers made false and 
unsubstantiated claims that consumers using its ``Quick Success'' 
program would lose weight at a faster rate when compared to its earlier 
programs.
    The proposed consent order seeks to address the alleged success 
misrepresentations cited in the accompanying complaint in several ways. 
First, the proposed order, in Part I.A., requires the company to 
possess a reasonable basis consisting of competent and reliable 
scientific evidence when appropriate substantiating any claim about the 
success of participants on any diet program in achieving or maintaining 
weight loss. To ensure compliance, the proposed order further specifies 
what this level of evidence shall consist of when certain types of 
success claims are made:
    (1) In the case of claims that weight loss is typical or 
representative of all participants using the program or any subset of 
those participants, that evidence shall be based on a representative 
sample of: (a) All participants who have entered the programs where the 
representation relates to such persons; or (b) all participants who 
have completed a particular phase of the program or the entire program, 
where the representation only relates to such persons.
    (2) In the case of claims that any weight loss is maintained long-
term, that evidence shall be based upon the experience of participants 
who were followed for a period of at least two years after their 
completion of the respondents' program, including any

[[Page 52341]]

periods of participation in respondent's maintenance program.
    (3) In the case of claims that weight loss is maintained 
permanently, that evidence shall be based upon the experience of 
participants who were followed for a period of time after completing 
the program that is either: (a) Generally recognized by experts in the 
field of treating obesity as being of sufficient length to constitute a 
reasonable basis for predicting that weight loss will be permanent; or 
(b) demonstrated by competent and reliable survey evidence as being of 
sufficient duration to permit such a prediction.
    Second, Part I.B. of the proposed order requires the respondent, 
when making any claim that participants of any diet program have 
successfully maintained weight loss, to disclose the fact that ``For 
many dieters, weight loss is temporary.'' In addition, Part I.C. 
requires respondent to disclose the following information relating to 
that claim:
    (1) The average percentage of weight loss maintained by those 
participants (e.g., ``60% of achieved weight loss was maintained''),
    (2) The duration over which the weight loss was maintained, 
measured from the date that participants ended the active weight loss 
phase of the program, and the fact that all or a portion of the time 
period covered includes participation in respondent's maintenance 
program(s) that follows active weight loss, if that is the case (e.g., 
``Participants maintain an average of 60% of weight loss 22 months 
after active weight loss (includes 18 months on a maintenance 
program)),'' and
    (3) The proportion of the total participant population that those 
participants represent, if the participant population referred to is 
not representative of the general participant population for that 
program (e.g., ``Participants on maintenance--30% of our clients--kept 
off an average of 66% of the weight for one year (includes time on 
maintenance program)).'' (In lieu of that factual disclosure, 
respondent may state: ``Weight Watchers makes no claim that this result 
is representative of all participants in the Weight Watchers 
program).''
    However, if Weight Watchers makes a representation about weight 
loss maintenance that does not use a number or percentage, or 
descriptive terms that convey a quantitative measure such as ``We have 
a successful weight management program,'' then in lieu of the above 
disclosures it may make in connection with such representation the 
statement ``Check at our centers for details about our maintenance 
record'' Weight Watchers would then be required to make the required 
maintenance information disclosures, in a printed document that is 
distributed to consumers at weight loss centers in accordance with the 
procedures set forth in Appendix A of the proposed order. The proposed 
order specifies that consumers must acknowledge receipt of this 
document and that it must be signed by the client and retained in the 
customers record of service for three years.
    Third, Part I.D. of the proposed order addresses advertisements 
containing an endorsement or testimonial about weight loss success or 
weight loss maintenance when those claims are not representative or 
``typical'' of what Weight Watchers participants generally achieve. 
Part I.D. requires Weight Watchers, when employing such ``atypical'' 
weight loss success or weight loss maintenance testimonials, to 
disclose either (1) what the generally expected success would be for 
Weight Watchers customers; or (2) the limited applicability of the 
endorser's experience to what consumers may generally expect to 
achieve.
    Part I.D. of the proposed order addresses advertisements containing 
an endorsement or testimonial about weight loss success or weight loss 
maintenance when those claims are not representative or ``typical'' of 
what Weight Watchers participants generally achieve. In accordance with 
the principles set out in the Endorsement Guides, Part I.D. would 
require Weight Watchers, when employing such ``atypical'' weight loss 
success or weight loss maintenance testimonials, to disclose either (1) 
what the generally expected success would be for Weight Watchers 
customers (Part I.D.(1)); or (2) the limited applicability of the 
endorser's experience to what consumers may generally expected to 
achieve (Part I.D.(2)). For weight loss testimonials Part I.D. of the 
proposed order permits Weight Watchers to accurately make the 
``generally expected success'' disclosure in one of two ways. First, 
the company may state, in the relevant advertisement, ``Weight loss 
averages (number) lbs. over ____ weeks.'' Alternatively, Part I.D. of 
the proposed order permits Weight Watchers to disclose in the relevant 
advertisement ``Average weight loss (number) lbs. More details at 
centers.''
    Required disclosures that are made at centers--which are described 
in Appendix B of the proposed order--may be made either in the 
introductory brochure or in a separate document entitled ``Weight Loss 
Information.''
    The proposed order makes clear that the alternative disclosures 
requirement contained in Parts I.C. and D. do not relieve Weight 
Watchers of the obligation to substantiate any maintenance success 
claim in accordance with Part I.A. of the proposed order.

Other Proposed Order Relief

    Part I.E. of the proposed order prohibits unsubstantiated 
comparative efficacy claims. It would require Weight Watchers not make 
comparisons between the efficacy or success of one or more of its 
weight loss programs and the efficacy or success of any other weight 
loss program(s) unless it possesses and reliefs upon competent and 
reliable evidence, which when appropriate must be competent and 
reliable scientific evidence, that substantiates the representation.
    Part I.F. of the proposed order covers rate of weight loss claims. 
It requires Weight Watchers to cease and desist from making any 
representation, directly or by implication, about the rate or speed at 
which any participant in any weight loss program has experienced or 
will experience weight loss, unless true.
    Part I.G. of the proposed order would require Weight Watchers to 
cease and desist from making any representation, directly or by 
implication, about the existence, contents, validity, results, 
conclusions, or interpretations of any test, study, or survey, unless 
true.
    Part I.H. of the proposed order is fencing-in relief which would 
require Weight Watchers to cease and desist from making any 
representation, directly or by implication, about the performance or 
efficacy of any weight loss program, unless true.
    Part II. of the proposed order would require Weight Watchers to 
notify the Commission of certain changes in the corporate respondent.
    Part III. of the proposed order would require Weight Watchers, for 
a period of three years after date of last dissemination of any 
representation covered by the order, to maintain and make available to 
the FTC materials relied upon in disseminating such representation and 
any evidence that contradicts or qualifies such representation.
    Part IV. of the proposed order covers the distribution of the order 
to designated current and future persons. The order must be distributed 
to regional managers and those having point-of-sale responsibilities 
under the order as well as key individuals involved in the placement of 
advertisements.

[[Page 52342]]

    Part V. of the proposed order covers the efforts Weight Watchers 
shall use to obtain its weight loss program franchisees' and licensees' 
(``franchisees'') compliance with the order.
    Weight Watchers is required under Part V., among other things, to:
    (1) distribute a copy of this order to each of its weight loss 
program franchisees or licensees within forty-five days after service 
of the order;
    (2) review advertising and promotional materials submitted to it 
from its franchisees or licensees prior to dissemination and 
publication to determine compliance with the requirements of the order;
    (3) notify any franchisee or licensee in writing if any advertising 
or promotional material does not comply with the requirements of the 
order and that it should not be disseminated or published;
    (4) monitor franchisee and licensee advertising and where it finds 
advertising that has not been submitted to it and which it believes is 
not in compliance with the requirements of the order, to notify such 
franchisee or licensee in writing of its findings and that such 
advertising should be withdrawn;
    (5) maintain separate files for each franchisee or licensee 
containing copy of the signed receipt and copies of any correspondence 
relating to any advertising and promotional materials with respect to 
the issues raised by the order for a period of three (3) years;
    (6) make these files available to the Commission staff for 
inspection and copying; and
    (7) where the order provides for the distribution of documents 
containing certain information to participants, to include such 
information in ``Program'' materials which its franchisees or licensees 
are required to supply to each participant.
    In addition, subparagraph B. of Part V. requires Weight Watchers to 
include in all future weight loss program agreements with new 
franchisees or licensees a requirement that the franchisee or licensee 
operate its business in full compliance with the prohibitions and 
affirmative requirements imposed on respondent pursuant to Part I. of 
the Commission's order. This part of the order defines ``new 
franchisees or licensees'' to mean those who are not franchised or 
licensed to conduct any weight loss program, or those who do not own or 
control such franchisees or licensees, at the time the order becomes 
final.
    Part VI. of the proposed order would require Weight Watchers to 
file a compliance report with the Commission within sixty days after 
the date of service of this order.
    Part VII. of the proposed order is a sunset provision that 
indicates, in part, that this order will terminate twenty years from 
the date of its issuance.
    The purpose of this analysis is to facilitate public comment on the 
proposed order, and it is not intended to constitute an official 
interpretation of the agreement and proposed order, or to modify in any 
way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 97-26525 Filed 10-6-97; 8:45 am]
BILLING CODE 6750-01-M