“You can eat what you want and never, ever, ever, have to diet again” said ex-baseball player Steve Garvey. Should he hand his $1 million fee to disappointed purchasers?
Topic: Personality rights
Who: The Federal Trade Commission ("FTC"), Enforma Natural Products and Steve Garvey
Where: The US District Court
When: November 2002
Between 1998 and 2002 ex-baseball player Steve Garvey made various statements in US TV "infomercials" promoting weight loss supplement products The products in question were "Fat Trapper" and "Exercise in a Bottle" produced by Enforma Natural Products. Amongst the promotional statements made by Garvey, who was paid an estimated $1,000,000 including repeat fees for his appearances in the infomercials, were "You can eat what you want and never, ever, ever have to diet again".
Following consumer complaints, the Federal Trade Commission moved into action on the basis that Garvey's and other claims made for the products in question during the infomercials were without foundation and seriously misleading. Proceedings were also brought against Steve Garvey, who acted as co-host of the infomercials, seeking a Court order that he contribute out of his earnings from the infomercials towards a fund to compensate consumers.
The allegation against Garvey was that he was recklessly indifferent to the truth of what he was saying in the infomercials, a mental state which was allegedly supported by statements he made on various TV talk shows at around the same time. Far from being just a paid mouthpiece, the FTC argued, Garvey was much more deeply involved and should have realised the claims he was making were so outrageous that they could not possibly be true.
Garvey defended on the basis that he was just reading the script, and that since his own wife had used the product and lost 27lb, it was not fair to say that he was reckless as to the truth or falsity of what he was saying. Now US District Court Judge Gary Allen Feess has issued a "notice of intended ruling" which indicates he is unlikely to accept the FTC's case against Garvey. The full judgment will not be available for some weeks, and the FTC may well appeal it. For the moment, however, it looks as though the Court has accepted that Garvey was not sufficiently involved in the process of misleading consumers to warrant seizure of his funds.
Why this matters:
The case is being hailed as a "stunning defeat" for the FTC, but it is clear from the judge's preliminary ruling that although in this case he does not regard Garvey as liable, he does not exclude the possibility, on different facts, of paid personalities having a financial responsibility in cases of this kind. Could the same happen here in the UK? To date, there is no reported case where such an allegation or claim has been pursued against a personality involved in advertising a product. Having said this, there is nothing in "public law" statutes such as the Trade Descriptions Act, which on the face of it would seem to prevent a prosecution being brought against a personality in similar circumstances. In such a case, however, the Court would have no power to order the sequestration of any receipts derived by the personality from the activity in question.
Separately, since there will be no contract between the personality and the consumer, any civil law basis for any right of recourse would have to be under the law of negligence, perhaps by way of the line of cases in "negligent misstatement". However, the limited number of cases in which a successful claim has been made on this basis to date suggests that the path to a judgement against an unfortunate personality would not necessarily be direct and straight forward. Nevertheless, with "super complaints" by consumer bodies due to become even more of a reality in a marketing context with the coming into force of the Enterprise Act in 2003, personalities should continue to be astute to ensure that in contracts governing their involvement in advertising, suitable provisions are included to protect their position. They will also want to consider taking out their own personal insurance cover against situations of this kind insofar as this is available.