Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Marketers of women’s “shapewear” undergarments settle FTC deceptive ad charges, (Sep 29, 2014)

By Peter Reap, J.D., LL.M.

Two marketers of women’s “shapewear” undergarments have settled FTC charges that slimming claims for their caffeine-infused products were false and not substantiated by scientific evidence. The proposed orders settling the FTC’s complaints bar Norm Thompson Outfitters, Inc., and Wacoal America, Inc., from making false and unsubstantiated claims about their shapewear and require them to pay a total of more than $1.5 million for consumer refunds (In the Matter of Norm Thompson Outfitters, Inc., File No. 132 3094) and (In the Matter of Wacoal America, Inc., File No. 132 3095).

“Caffeine-infused shapewear is the latest ‘weight-loss’ brew concocted by marketers,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection. “If someone says you can lose weight by wearing the clothes they are selling, steer clear. The best approach is tried and true: diet and exercise.”

The FTC's complaints against Norm Thompson Outfitters and Wacoal America allege the companies deceptively advertised, marketed, and sold women’s undergarments infused with microencapsulated caffeine, retinol, and other ingredients, claiming the “shapewear” would slim and reshape the wearer’s body and reduce cellulite.

Specifically, the FTC alleges that Norm Thompson made claims that wearing its shapewear would eliminate or substantially reduce cellulite; reduce the wearer’s hip measurements by up to two inches and their thigh measurements by one inch; and reduce thigh and hip measurements “without any effort.” The complaint alleges that these claims are not true or substantiated by scientific evidence, and therefore violate the FTC Act.

Wacoal America is charged with making false and unsubstantiated claims that wearing iPants would: substantially reduce cellulite; cause a substantial reduction in the wearer’s thigh measurements; and destroy fat cells, resulting in substantial slimming. The complaint alleges that these claims are not true or substantiated by scientific evidence, and therefore also violate the FTC Act.

The proposed administrative consent orders settling the charges against Norm Thompson Outfitters and Wacoal America ban the companies from claiming that any garment that contains any drug or cosmetic causes substantial weight or fat loss or a substantial reduction in body size. In addition, the companies are prohibited from making claims that any drug or cosmetic reduces or eliminates cellulite or reduces body fat, unless they are not misleading and can be substantiated by competent and reliable scientific evidence. Finally, the orders require Norm Thompson Outfitters and Wacoal America to pay $230,000 and $1.3 million, respectively, that the FTC can use to provide refunds to consumers who bought the caffeinated shapewear.

The Commission vote to issue the complaints and accept the proposed consent orders was 5-0 in each case. The FTC will publish a description of the consent agreement packages in the Federal Register shortly. The agreements will be subject to public comment for 30 days, beginning today and continuing through October 29, 2014, after which the Commission will decide whether to make the proposed consent orders final.

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