The FTC recently announced a proposed consent order against Vanilla Chip LLC (dba TruHeight) and its individual officers regarding ad claims for TruHeight dietary supplements, products advertised to increase the height of kids, teens and young adults.  The FTC alleged that the company’s claims were unsubstantiated and their marketing techniques deceptive.  The consent order includes a $4 million judgment and bars the company and its principals from making false or unsupported health claims or using fake reviews.

Specifically, the FTC alleged that, despite advertising that it had “clinical evidence” to support its growth claims, the company in fact relied on a single company-sponsored study.  The study, measuring the height growth of 32 participants over a six month period, was substantially flawed, according to the FTC. It was of insufficient size and duration, lacked proper randomization, failed to control for participants’ sleeps and nutritional intake and only evaluated a single TruHeight product. Accordingly, the complaint alleges that TruHeight lacked competent and reliable scientific evidence to support its efficacy claims, in violation of the FTC Act. (A footnote in the Commissioner’s Separate Statement, discussed further below, emphasizes that the FTC “takes no dispositive position on whether any single, company-sponsored study can ever provide the legally required substantiation.” Just not here.)

In addition, the FTC alleged that the company’s marketing techniques were also deeply flawed.  Not only did TruHeight offer consumers incentives for leaving 5-star reviews, but the company also got its employees to write reviews and testimonials (including one claiming a twelve-inch growth spurt in six months), reviews which were not even based on the employees’ own use of the products.  Worse, the company created fake social media profiles which appeared to be for real users but were actually bots.  The fake profiles were used to post software-generated comments on the company’s Facebook and Instagram pages.  The FTC alleged that all of this conduct violated the Rule on the Use of Consumer Reviews and Testimonials.  

Although there are only two sitting FTC commissioners and both voted to issue the administrative complaint and accept the consent agreement, they also issued a Separate Statement, expressing their deep concern about the use of unsubstantiated health claims “to induce consumers into paying hard-earned money in the hopes of obtaining health benefits for their children [especially] when the unsubstantiated health claims are for products, services, or treatment that harm children, either temporarily or permanently.”  However, there are no such allegations in the complaint: the supplements are not proven to make children grow, but no physical harm from using them is alleged. 

The FTC’s current commissioners have repeatedly discussed their role in protecting the health of America’s youth and their Separate Statement reiterates that position. Yet, this action is the only such one it has announced since its workshop on gender affirming care for transgender youth nearly a year ago, a workshop that included only opponents of such care and was roundly criticized in the public comments following the workshop. Thus, the TruHeight enforcement action may be noteworthy not only for what it says about substantiation and reviews, but perhaps signals an effort to lay the groundwork for future enforcement actions in an area of abiding interest to the Trump administration: the rights of transgender people.  (At the time of this writing, a federal district court has blocked the FTC from enforcing investigative demands against two medical organizations involved in transgender health care guidance.)