In May 2024, Nestle announced its intention to create a new food brand, called Vital Pursuit, specifically marketed for consumers who use GLP-1 drugs for weight loss. GLP-1 drugs mimic glucagon-like peptide 1 (GLP-1) hormones to create the feeling of fullness and restrict appetite in users. Over the past few years, these drugs have grown in popularity to become an essential part of many American’s weight loss management plans. To combat the resulting effects of consumers buying less snack foods, companies, like Nestle, are creating food brands to complement the diet of a GLP-1 drug user. This article is the second in a two-part series discussing the regulatory framework of these food products. Specifically, this article will look at off-label advertising.
Background on Food for GLP-1 Drug Users
GLP-1 drugs were first created as a treatment to help users with Type 2 diabetes regulate their blood sugar levels. However, several of them are now being used for weight loss management. A survey conducted by KFF found that one in eight adults have taken a GLP-1 drug and of those who have taken it, four in ten report taking the medication primarily for weight loss. While several GLP-1 drugs are approved by the Federal Drug Administration (FDA) for Type 2 diabetes treatment, only three are approved for weight loss. However, many of the GLP-1 drugs only approved for Type 2 diabetes are used for weight loss. For example, Ozempic, a GLP-1 drug only approved for Type 2 diabetes, is widely known for being used for weight loss management even though it is not approved for that use by the FDA.
As more people incorporate appetite suppressing GLP-1 drugs into their weight-loss management programs, companies, like Nestle, are creating ways to combat the decrease in sales of snack foods. Specifically, with its new brand Vital Pursuit, Nestle will be advertising food products which are high in protein, fiber, and essential nutrients as “support[ing] GLP-1 users.” These food products will be marketed to GLP-1 users through both labeling and advertising. Labeling refers to the claims made on the food product’s packaging and is regulated on the federal level by the FDA and the U.S. Department of Agriculture (USDA), while advertising refers to every other type of marketing and is regulated by the Federal Trade Commission (FTC). For example, Nestle has indicated that Vital Pursuit’s packaging will not include label claims linking the food to GLP-1 drugs, but will instead focus on the essential nutrients present in the food. However, Nestle has mentioned GLP-1 drugs in connection with Vital Pursuit on its website and indicated that it will use social media to “more directly connect the brands to the drugs.” Social media and language on the company’s website are examples of advertising, while a claim like “high in protein” on the food’s packaging is an example of a labeling claim.
In addition, Nestle Health Science, a subsidiary of Nestle which owns a number of dietary supplement brands like Nature’s Bounty, has a website dedicated to GLP-1 Nutrition. This website promotes its dietary supplement brands, includes a blog with tips, an expert insights tab, and a talk to a nutrition coach feature, and provides the opportunity for sharing success stories and being a “GLP-1 Nutrition Ambassador.” Participation as a GLP-1 Nutrition Ambassador will provide benefits, such as a 30% discount code for products featured on the GLP-1 Nutrition website. While Nestle has not yet announced what the marketing campaign for Vital Pursuit will look like, it could be assumed that its food products will be promoted on this website and GLP-1 Nutrition Ambassadors might provide testimonials of how Vital Pursuit helped them achieve their weight loss management goals.
FTC Regulation Generally
The Federal Trade Commission (FTC) is a federal agency that works to protect “the public from deceptive or unfair business practices and from unfair methods of competition.” The FTC derives its authority from the Federal Trade Commission Act (FTCA). In the context of food, the FTCA specifically makes it unlawful for “any person, partnership, or corporation to disseminate . . . any false advertisement . . . which is likely to induce . . . the purchase of food.” 15 USC § 52. The FTCA defines food to include “articles used for food or drink for man or other animals.” 15 USC § 55(b).
According to the FTC Deception Policy Statement, it finds an advertisement to be unlawful if it “contains a representation or omission of fact that is likely to mislead consumers acting reasonably under the circumstances, and that representation or omission is material.” A deceptive representation may be affirmative, arising from either an express or implied claim, or it might arise from the omission of material information. In both cases, the FTC will determine deception by testing whether the overall impression created by the ad is deceptive, and whether a consumer acting reasonably under the circumstances would be misled. The FTC defines a material representation as one likely to affect a consumer’s choice or use of a product or service. In the context of food, the FTC requires that claims regarding the nutrition or health benefits of food rely upon a reasonable basis substantiating the claim. Substantiation for nutrient content or health claims will usually require a reasonable basis of competent and reliable scientific evidence to support the claim. Scientific evidence will generally consist of tests, analyses, research, or studies conducted and evaluated by qualified persons using procedures accepted as yielding accurate and reliable results.
Since 1954, the FDA and the FTC have operated under a Memorandum of Understanding (MOU) which gives FDA the authority to regulate food labeling and FTC the authority to regulate food advertising. While the FTCA does not define “advertisement,” the MOU clarifies that the FTC is responsible for “all advertising (other than labeling) of foods.” Under its Enforcement Policy Statement on Food Advertising, the FTC seeks to harmonize its advertising enforcement program with FDA’s food labeling regulations to the fullest extent possible. In recognition of FDA’s scientific expertise in this area, the FTC gives great weight to FDA’s scientific determinations in matters of nutrition and health. Thus, it is generally unlikely that the FTC will act against nutrient content and health claims if they comply with FDA’s regulations. For example, if a premade, frozen meal contains a nutrient content claim like “high in protein” on its food packaging in compliance with FDA regulations, the FTC will likely view the use of “high in protein” in the food advertisements as substantiated through FDA compliance. To learn more about FTC’s general regulatory process for food labeling, click here to view NALC article “The Legality of Food Labeling Claims: How Advertisements are Regulated.”
Regulation of Endorsements
The FTC will have authority over all off-label advertising Nestle, or other food companies, will use to promote its GLP-1 food brands. These advertisements could include TV commercials, magazine ads, social media ads, or billboards, but it might also include endorsements. Endorsements could happen within a traditional advertisement structure, such as featuring a well-known public figure or a consumer who had success using the product in a TV advertisement, or it could occur through the more popular modern form of having a social media influencer promote its product. In its Guides Concerning Use of Endorsements and Testimonials in Advertising (Enforcement Guides), the FTC defines an endorsement as “any advertising, marketing, or promotional message for a product that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser.” The term testimonial is considered the same as endorsement in this context. As a part of its authority over advertising, the FTC enforces the principle that endorsements must be honest and not misleading. Advertisers are subject to liability for misleading or unsubstantiated statements made through endorsements and for failing to disclose unexpected material connections between themselves and endorsers.
Consumer Endorsements
Nestle and other companies might choose to advertise their GLP-1 food brands through consumer endorsements. An advertisement containing an endorsement from a consumer about the performance of the advertised product is interpreted to represent that the “product is effective for the purpose depicted in the advertisement.” 16 CFR § 255.2. Because of this standard, an advertiser must rely on adequate substantiation to support the claim made through the endorsement. Substantiation requires that advertisers have a reasonable basis for advertising claims before they are disseminated. Here, the relied upon substantiation could include competent and reliable scientific evidence. For example, a consumer endorsement of a premade, frozen meal where the endorser claims the meal “helped her lose weight while taking a GLP-1 drug” would require reliable scientific evidence to substantiate that GLP-1 drug users eating these meals lost weight. Even if the consumer’s endorsement relies upon their personal experience, the endorsement alone would not be considered competent or reliable scientific evidence of this claim, and the advertiser would be expected to have a further reasonable basis for this claim.
Additionally, a consumer endorsement which highlights a key attribute of their experience with the product is interpreted to represent that all consumers using the product under similar conditions will achieve the same experience with the advertised product. Thus, an advertiser is either required to rely upon adequate substantiation for the representation or should clearly and conspicuously disclose the generally expected performance in the depicted circumstances. For example, an advertisement for a weight-loss product featuring an endorsement by a formerly obese person claiming they lost 110 lbs. in six months using the product with minimal diet and exercise changes is probably misleading. Under the interpretation standard, this endorsement will be understood as representing that all consumers who use this weight loss product with minimal diet and exercise changes will lose 110 lbs. in six months. Therefore, unless the advertiser of the weight-loss product has adequate substantiation for this claim, they will need to clearly and conspicuously disclose what is generally expected to occur when a person uses this weight loss product for six months with minimal diet and exercise changes. Conversely, if the consumer endorsement had included the specific conditions of the endorser’s diet and exercise, i.e., “I lost 110 lbs. in six months using the weight-loss product, only eating raw vegetables, and working out rigorously twice a day,” it would not be considered misleading. Here, because the endorsement detailed the limited and exceptional conditions of use that resulted in the consumer losing 110 lbs. in six months while using the advertised product, the ad is likely not conveying to consumers that using the product under less extreme circumstances will allow the loss of 110 lbs. in six months.
Expert Endorsements
If the endorser is represented as an expert in an advertisement, then the endorser’s qualifications must give them the expertise to make the endorsement presented in the advertisement. 16 CFR § 255.3. Furthermore, the expert’s endorsement must be based on an actual exercise of their expertise. This must include an evaluation of the product that is as extensive as someone with the same degree of expertise would execute. For example, the GLP-Nutrition website’s “talk to a nutritionist” feature must include experts who are qualified to offer insight on a GLP-1 drug user’s nutritional needs, such as a registered dietitian or someone who has a degree in nutrition. Additionally, the website feature which offers expert insight will need to be advice that is based on an actual use of their expertise and evaluated at a standard that fellow experts would typically use.
Material Connection
Another important component of endorsement regulation is the requirement that an advertisement must disclose a material connection that exists between the advertiser and endorser. A material connection is one which might materially affect the weight or credibility of the endorsement.16 CFR § 255.5. When such a connection is not reasonably expected by the audience, it must be disclosed clearly and conspicuously to consumers. The FTC Endorsement Guidelines consider monetary payments or the provision of free or discounted products to an endorser to be a material connection. For example, in 2023, the FTC sent warning letters to the Canadian Sugar Institute and two registered dietitian nutrition influencers for failing to adequately disclose sponsored social media posts that promoted the consumption of sugar. Here, the FTC took concern when the social media posts did not properly disclose the connection between the Canadian Sugar Institute and the influencers because FTC claimed such a connection might materially affect the credibility consumers offered the endorsement. To learn more about this issue, click here to read NALC article “FTC Warns Trade Associations and Nutrition Influencers of Lack of Disclosure in Sponsored Social Media Posts.”
Likewise, if Nestle does begin promoting Vital Pursuit on its GLP-1 Nutrition website and offer GLP-1 Nutrition Ambassadorships to drug users who share endorsements of Vital Pursuit products, the ambassadors will be required to disclose a material connection to Nestle. Since the GLP-1 Nutrition page states that GLP-1 Nutrition ambassadors will receive benefits, such as discounted products, the FTC would qualify their relationship as a material connection and disclosure would be required.
Conclusion
As GLP-1 drugs become a staple in the weight loss management plans of more people, food companies are creatively trying to offset the potential decline in snack food sales. In particular, Nestle is creating a food brand, Vital Pursuit, marketed specifically to support GLP-1 drug users. The off-label advertising for this brand will be regulated by the FTC. The FTC requires nutrition and health benefit claims for food to be substantiated by competent and reliable scientific evidence to support the claim. Additionally, the FTC will regulate the use of endorsements in advertising by requiring that consumer and expert endorsements are substantiated, and material connections are disclosed.
Click here to read the first article in this two-part series, “Regulation of Food for GLP-1 Drug Users: Labeling Claims”