CSPI letter to FTC offers lessons for companies over PhD vs MD endorsers

The issue revolves around a recent promotional video for Kirkland, WA-based Promedev LLC, which does business as Relief Factor, featuring the former President Trump advisor and ex-Fox contributor. The ad presents Gorka as “Dr. Sebastian Gorka”, which the Center for Science in the Public Interest (CSPI) alleges implies that Gorka is a medical doctor.

In a complaint​ to FTC Chairman Joseph J. Simons, CSPI president Dr. Peter G. Lurie, a physician, and CSPI Policy director Laura MacCleery, wrote that the product endorsement misleads consumers into believing it’s based on a medical knowledge of back pain, and that the agency should issue a cease and desist letter to the manufacturer.

Gorka does hold a PhD in political science from Corvinus University of Budapest, but requests the “Dr.” prefix be used when referring to him. It's an advertising practice frowned upon by the FTC.

According to FTC guidance​ on expert endorsements, when ads present a commercial endorser as an expert, the endorser must have actual expertise in a relevant field. The agency uses the example of an advertisement for a hearing aid: “An endorser of a hearing aid is simply referred to as 'Doctor' during the course of an advertisement. The ad likely implies that the endorser is a medical doctor with substantial experience in the area of hearing. If the endorser is not a medical doctor with substantial experience in audiology, the endorsement would likely be deceptive. A non-medical 'doctor' (e.g., an individual with a Ph.D. in exercise physiology) or a physician without substantial experience in the area of hearing can endorse the product, but if the endorser is referred to as 'doctor,' the advertisement must make clear the nature and limits of the endorser’s expertise.”​

Relief Factor: An honest mistake that has already been corrected

In response to the complaint, Relief Factor’s CEO Seth Talbott told NutraIngredients-USA it was simply an honest mistake: “​We recognized last week that there was an accidental use of “Dr.” with his name rather than using his PhD in his title in the ad. It was an unintentional mistake that we caught last week and fixed prior to the CSPI even writing their letter.  Ads have been running for the last few days with the corrected version. ​

“The use of ‘Dr.’ is a common honorarium used with those who have earned a PhD, and frankly it just slipped through the editing process before we caught it three days after the ads started running. All of us, including Dr. Gorka’s colleagues, refer to him as Dr. Gorka, and it just didn’t get noticed until after the ads were live. Contrary to the letter, however, we disagree that due to his celebrity nature, and being a very public figure, that there was ever any misunderstanding with the public thinking that he is a medical doctor. Again, it was a small oversight on our part, but not an intentional one, nor one that we think misled the public to imply that he has medical expertise.”​

How to avoid FTC backlash

Erin Jackson, a healthcare attorney with Jackson LLP, told NutraIngredients this type of issue has changed over the years: “​In the 1980s, Peter Bergman played a doctor on a soap opera and said ‘I'm not a doctor, but I play one on TV’ to prevent confusion among viewers when he was hired to advertise cough syrup. The phrase was utilized to avoid FTC backlash, since consumer confusion can be considered the driving force in marketing and advertising regulation.”​

 “However, Phil McGraw (known as 'Dr. Phil' on TV) has never faced FTC backlash. Dr. Phil is not a medical doctor nor a psychologist – he has a PhD in clinical psychology. The only time that Dr. Phil has appeared to run into the FTC was when he started a weight-loss business that was inefficient (i.e., consumers claimed they were not losing weight). When he started the company, Dr. Phil faced criticism for recommending a weight-loss program when he was not a medical physician. Upon threat of an FTC investigation into his product, Dr. Phil withdrew the product from market and soon after several consumers who had bought the product threatened to sue and Dr. Phil settled for $10.5 million,” ​Jackson added.

 ​What’s Next?​

Attorney Braden Perry, a former CFTC senior trial attorney that regularly represents companies in front of the FTC, told NutraIngredients-USA that CSPI has a valid point. “The fact that Gorka is endorsing a health supplement using 'Dr.' in his name likely could confuse or mislead consumers into believing that Gorka is a medical doctor and not a Ph.D. in political science. These cases are very fact-intensive, and this advertisement in question is likely to be scrutinized. There are no disclosures or disclaimers related to his experience or expertise, and he claims that this is the first time he’s endorsed a “pain reliever” potentially suggesting he has the experience and expertise to endorse such products. Without the disclosure or disclaimer, the ad could be a violation of the FTC rules.”​

So what does this mean for the company moving forward? Jackson says, “The FTC can pursue enforcement actions or civil lawsuits, and they may target Relief Factor and Sebastian Gorka for any false, misleading, or unsubstantiated statements made in the endorsement. The penalties can include steep fines, an order to cease and desist the endorsements, an injunction, and potentially even refunds to consumers for damages proved through civil lawsuits. ​

“Even if Relief Factor argues that an individual with a PhD can endorse a pill - maybe, for example, someone with a PhD in pharmacology - Gorka’s PhD in political science is a far cry from a relevant or pertinent area of expertise in this case.”​