Those who fondly remember cartoonist Bill Watterson’s late, lamented comic strip, “Calvin and Hobbes” will probably also recall that the favorite breakfast cereal of mischievous main character Calvin was “Chocolate Frosted Sugar Bombs” (a name that isn’t too far off the mark from some real cereals). When Calvin’s stuffed tiger, Hobbes (who comes to life only when Calvin is alone with him) protests that the cereal “is like eating a bowl of Milk Duds,” Calvin retorts, “Look, it says right on the box, ‘Part of a wholesome, nutritious, balanced breakfast.’” Hobbes responds by pointing to a picture on that same cereal box, noting that it shows “a guy eating five grapefruits, a dozen bran muffins . . . .”
If only most people were as canny as Calvin (and Hobbes) — to read what the ingredients actually say! Unless you’re fortunate enough to have the Federal Trade Commission (FTC) come riding in on its white horse, of course.
Back in 2008, the FTC filed a lawsuit in San Francisco Federal District Court against a variety of companies all peddling a product that went by a variety of names: Zyladex, Questral AC, and Rapid Loss. And all the companies selling these products (including Medlab, Inc., Pinnacle Holdings, Inc., Metabolic Research Associates, Inc., and USA Health, Inc.) were run by an individual named Scott Holmes. The court that eventually ruled on his case noted that the FTC was unhappy with Holmes’ advertising of his “Weight Loss Product” because of fanciful claims about what it did:
— that it would cause users to lose as much as 15 to 18 pounds per week and as much as 50% of all excess weight, in just 14 days, without dieting or exercising;
— that it would cause permanent or long-term weight loss.
— that clinical studies proved that Holmes’ product would cause this rapid, substantial weight loss, substantiating the claims of 15-18 pound-per-week/ 50% excess weight loss in just 14 days — again, without diet or exercise.
Ah . . . if only it were true — just pop a few little pills and the excess weight disappears — like magic!
But it turned out this wasn’t the first time for Mr. Holmes. He had been marketing diet pills since the early 1990s — and when people began to catch on that his product didn’t work, he would simply form a new company to sell a new product. The only “weight loss” people experienced was from their wallets.
To refute Holmes’ claims, the FTC put on expert testimony about the biology of weight loss. One expert testified that a pound of body fat is the equivalent of 3,500 calories. The average adult ingests 1,500 to 2,000 calories per day, depending on factors like weight, sex, and physical activity. To lose weight requires a daily “calorie deficit” (3,500 minus perhaps 500-1,000 calories) below normal daily consumption.
That would only induce someone to lose 1-2 pounds per week, however. To lose the “15-18 pounds per week” that Holmes’ products claimed, even cutting calorie intake to zero wouldn’t be enough. That kind of weight loss requires a 7,500-9,000 daily “calorie deficit.” Or, as the FTC’s expert summed up, to lose 15-18 pounds a week “a 200-pound individual would need to run between 57 and 68 miles every day.”
And the only people putting out those levels of exertion are biking in the Tour de France.
For his part, Holmes (and his companies) tried to argue that they warned consumers that just taking the pills wouldn’t be enough. As the judge described it, they cited a statement “that appears in minuscule type at the bottom of the advertisements” that, “Results will vary from one individual to another . . . . To achieve best results, you should follow the caloric abatement recommendations, increase activity level and not rely on pill use alone.”
The court, however, did not buy this argument, noting that the fine print was “overwhelmed” by the rest of the advertisement copy — which, again, claimed that by taking the companies’ “skinny pill,” someone could have thinner thighs with no change in exercise or eating habits. The court gave the FTC a judgment against Holmes and his companies of nearly $2,700,000, which reflected the difference between his gross sales and the amounts he had already refunded to consumers.
Ironically, since the FTC’s lawsuit against Holmes, such “effortless weight loss” drugs — prescription drugs, of course — such as Ozempic and Wegovy, have been developed. And for at least some people, they indeed cause nearly complete abatement of one’s appetite – and, thereby, significant weight loss.
Hmmm . . . does Mr. Holmes know about this?
Frank Zotter, Jr. is a Ukiah attorney.
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