Washington, DC - As consumers age, they want to remain supple, as in limber, lithe, and flexible. Ads for the beverage Supple claimed the product would provide complete and long-lasting relief from joint pain and treat chronic pain caused by arthritis and fibromyalgia. But according to the FTC, the marketers of Supple were a little too flexible – with the facts, that is. The FTC’s lawsuit also challenges the independence of the doctor who endorsed the product.

Ads featuring company president Peter Apatow represented that Supple “rebuilds your entire joint structures” and “eliminates pain so you don’t have to worry about pain in your bones, muscles and joints.” One consumer claimed the glucosamine and chondroitin beverage – which set buyers back $140 for a 48-day supply – kept her “out of the surgeon’s office and out of a wheelchair.”

The defendants also took to social media to promote their product. For example, in response to a consumer whose doctor had recommended knee replacement, a company representative said on Facebook that “Supple will help the process of repairing cartilage” and that “many people who have been bone on bone . . . actually get to take their life back and not have to go into surgery.” Supple employees made similar promises in online chats with consumers.

Don’t just take the word of customers, the ads advised. Look to the “medical research,” which Mr. Apatow described as “irrefutable.” “The active agents in Supple are the most highly recommended joint rebuilding agents by the greatest medical experts in all of Europe,” he claimed, with “over 20,000 human clinical studies, observational studies, laboratory studies, meta-analysis, expert review.”

Supple ads also featured the glowing recommendation of Dr. Monita Poudyal. In addition to touting the product on an infomercial, she appeared in online ads that said “Doctors recommend Supple for complete revolutionary joint relief.” The company prominently disclosed lots of information about Dr. Poudyal – for example, that she’s Yale-trained, board-certified in internal medicine, and committed to “educating the public about natural and safe ways to maximize musculoskeletal health.”

But there was something the FTC says wasn’t prominently disclosed: At the time of the ads, she was married to Supple CEO Peter Apatow.

Most of the ads made no mention of that fact and the one that did – an infomercial – could serve as a how-not-to checklist for other marketers. Teeny-tiny mouseprint in white run simultaneously with the much larger competing on-screen message “Can you end joint pain, arthritis pain, back pain & bone pain naturally?” Check, check, and check.

And consider it in context. Here is what the company flashed for 7 seconds just once in the 30-minute ad. Set yourself a timer for 7 seconds and imagine how tough it was for consumers to spot the nugget Supple buried: “Monita Poudyal, M.D. is board certified in internal medicine, received her training and fellowship at a top Ivy League institution, completed clinical research training at the National Institutes of Health, recently joined Mr. Apatow in matrimony, and is now assisting Supple, LLC with research and public education.”

The complaint challenges a host of deceptive claims about the product’s ability to treat pain, repair cartilage, rebuild joints, and restore mobility.  The FTC also alleges that the defendants falsely claimed that Supple was clinically proven to eliminate joint pain.  In addition, the complaint charges that Dr. Poudyal was not an independent, impartial medical expert and that her marriage to Supple’s CEO was material information that wasn’t adequately disclosed to consumers.

The settlement includes a $150 million judgment, most of which has been suspended based on the financial condition of Supple and Apatow. Among other things, Supple, Apatow, and Poudyal will need human clinical testing to support a long list of representations related to treating pain and rebuilding joints. A claim that a product can treat or cure any disease will need human clinical testing, too.

What’s the message for other companies?

  • Flexibility is good, but not when it comes to scientific substantiation. It’s a twice-told tale: A company finds a scientific inch and takes a marketing mile. Be careful not to exaggerate the state of science beyond what the evidence establishes.
  • Take a 360° look at the science.  How do you handle research that doesn’t support the claims you want to make in your ads? Unlike companies that disregard the evidentiary elephant in the room, savvy marketers heed the warning signs and evaluate that data carefully, especially before making broad, unqualified representations.
  • Consult FTC guidance on disclosing connections between endorsers and advertisers. Might it affect how much weight consumers give an endorsement to learn that the CEO and the endorser are married? We think so. There’s an easy solution, of course: Clearly disclose the connection so prospective customers can decide for themselves. Read FTC’s Endorsement Guides: What People are Asking for practical advice.
  • Disclose it like you mean it.  While we’re on the subject of disclosures, we can’t speak for Supple, but just why did the company mention in the superscript that Mr. Apatow and Dr. Poudyal had been “recently joined . . . in matrimony”? We don’t think it was so consumers could chip in to buy them a blender. If you think the disclosure of information is necessary to prevent deception, make the effort to make it clear and conspicuous.