Thursday, September 2, 2004
Page 3
Ninth Circuit: Steve Garvey Not Liable for Hawking Weight Loss Program
From Staff and Wire Service Reports
Former Los Angeles Dodger first baseman Steve Garvey did not violate federal trade regulations when he appeared in an infomercial for a weight-loss product that makers claimed would work even if dieters continued to eat fatty food, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The three-judge panel said U.S. District Judge Gary A. Feess of the Central District of California did not clearly err in deciding that Garvey did make an “endorsement” within the meaning of a Federal Trade Commission guidebook when he became a celebrity spokesman for the two products, known as Fat Trapper and Exercise in a Bottle. Fat Trapper is made out of seafood shells and allegedly “surrounds the fat in the food you eat and entraps it,” according to the court.
Feess might have been wrong when he ruled that an appearance by Garvey on a talk show, in which he discussed the product, was not an endorsement, Judge Harry Pregerson explained for the unanimous panel. But those statements merely attested to his own and his wife’s experiences with the product and “clearly passed any substantiation requirement for celebrity endorsers” mandated by the FTC, Pregerson said.
The appellate jurist noted that Feess heard conflicting expert testimony about whether the statements made by Garvey in the infomercial constituted an endorsement.
Garvey, he noted, said the product “works,” that he “truly believe[s that it] is the greatest weight loss program in history,” that he is “convinced,” that he “love[s] this,” and that “this is the most amazing system that [he has] ever seen.”
Feess was entitled to conclude that those statements did not necessarily reflect Garvey’s own beliefs, as opposed to those of the manufacturer, Pregerson said.
But the appellate panel did reinstate the Federal Trade Commission’s lawsuit against producers of the television infomercials. Feess was wrong to conclude an earlier settlement under which the manufacturer, Enforma Natural Products Inc., paid the FTC $10 million and agreed not to further market the products barred those claims, Pregerson said.
The FTC alleges that the production company, Modern Interactive Technology, Inc., made false advertising claims when it aired infomercials 48,000 times between December 1998 and May 2000.
Pregerson said Feess properly found that the FTC failed to show that Garvey was recklessly indifferent to the truth of his statements or was aware that fraud was highly probable and intentionally avoided the truth. Garvey, Pregerson pointed out, had first-hand anecdotal evidence of the efficacy of the product and had information that purported to present scientific bases for his claims.
In a footnote, the court said Garvey’s status as “merely a spokesperson” was “relevant” to deciding his liability. The FTC conceded, Pregerson said, that in assessing scientific material, Garvey was “only required to examine the material from the perspective of a reasonable layperson.”
Garvey, who played for the Los Angeles Dodgers and the San Diego Padres, was the National League’s Most Valuable Player in 1974. He earned $1.1 million for appearing in the infomercials.
Judges M. Margaret McKeown and Jay S. Bybee concurred in the opinion authored by Pregerson.
The case is Federal Trade Commission v. Garvey, 03-55179.
Copyright 2004, Metropolitan News Company