By Phillip Addis —
Many people on New Year’s Day create resolutions to bring about changes in their own lives. (Let’s call these contracts with ourselves.) Some of the most common of these are to lose weight, become healthier or increase overall fitness.
Television, the internet and magazines—including each of this publication’s first four issues—are filled with numerous methods to lose weight, get fit and “become a better you.” The choices range from drinking magic elixirs and eating slimming foods to utilizing elaborate fitness machines promising abs of steel and a physique that will make even strangers envious.
These promises of an improved you entice consumers to spend hundreds of dollars to look like the people we see in these ads. Unfortunately for most of us, these good intentions are often short-lived. The new fitness equipment is relegated to storage as the fitness plan DVDs collect dust on the shelf. The magic food and drinks end up in the cupboards while gym memberships go unused.
This is America. There must be someone we can sue for this. It cannot be our fault.
Let’s look at the ads.
When you watch the infomercials or view these glossy pages, they all have the same theme: People have lost 40 or 50 pounds or even more with amazing pronouncements of incredible results. Eye-catching men and women tout the benefits of whatever product is being advertised. Sometimes, even a celebrity endorsement or two is thrown in for good measure. All of this makes you believe this is the product for you.
Before you start counting the money from your lawsuit, let’s first consider whether there is any lawsuit. Is this fraud or misrepresentation or merely puffing? That is, is the marketing merely an opinion or judgment that is not made as a representation of fact? After all, a certain amount of exaggeration should be expected from any salesperson.
In order to claim fraud or misrepresentation, the statement must be an outright lie or have no basis in fact.
While consumers view before and after photos, hear incredible stories of success and watch fitness models demonstrate these products, there are many aspects that usually escape notice.
Along the bottom of these infomercials—with print either blending into the background or in such a small font it resembles dots more than it does letters—the following phrases are buried: “Results not typical”; “Results only achieved after following a regime of calorie restriction and exercise”; “Average weight loss is 8 pounds in 12 weeks”; or “People in these ads are fitness models.”
Since the advertiser gave these disclaimers, it cannot be considered fraud or misrepresentation. It is merely puffing, which is not illegal or the basis for a lawsuit. It is, for better or for worse, an embedded part of the sales industry.
The best thing to remember when making purchases such as these is, “Buyer Beware.”
Phillip Addis has spent 30 years practicing law in La Crosse. He admits he still has in his basement the treadmill he bought as part of his 2002 New Year’s resolutions. It makes a great storage unit.
504 Main Street, Suite 200
La Crosse, WI 54601