Last week the Federal Trade Commission ordered Breiersdorf, Inc., manufacturer of Nivea skin cream, to cease representing — or really, even hinting — that its product can help users lose weight. FTC Chairman Jon Leibowitz, in perhaps the creepiest statement of his tenure, chastised, “The real skinny on weight loss is that no cream is going to help you fit into your jeans. The tried and true formula for weight loss is diet and exercise.” Leibowitz was referring to a Nivea commercial — now banned by the FTC — that no doubt appealed to every vain woman too dumb to critically assess anything she sees on television:
New Nivea My Silhouette! with Bio-Slim Complex helps redefine the appearance of your silhouette and noticeably firm skin in just four weeks. [Depicts woman getting jeans out of rear of closet, and trying them on to discover that they fit.] So you can rediscover your favorite jeans. And how they still get his attention. New Nivea My Silhouette! with Bio-Slim Complex. Touch and be touched.
The most notable aspect of this case, however, is that the FTC also cited Google search results as separate evidence of illegal activity:
Respondents also entered into agreements with Google, an Internet search engine, to preferentially identify a webpage marketing My Silhouette in response to consumer searches for information relating to body size. As a result, if a consumer entered the terms “stomach fat,” “nivea slim silhouette,” or “thin waist” into Google, a link to this My Silhouette webpage would appear as a sponsored result at the top of the search results, such as follows:
So now it apparently violates the FTC Act if you pay to use words that the Commission deems misleading to potential customers. Leibowitz and company can veto any company’s use of a word or phrase if it even hints at something the Commission deems cannot be true. Since the FTC does not have to prove a claim is false to ban it — only that the speaker’s statements are not supported by evidence the government, usually the Food and Drug Administration, deems correct — this new power to ban individual search words could have potentially limitless uses.
This also suggests yet another motive for the FTC’s pursuit of Google. If Leibowitz can get his hands on Google’s search engine, he will probably demand new filters on words and phrases he deems likely to “mislead” consumers. He could even require Google’s basic search algorithm to discriminate against speech and speakers he deems unworthy. Ultimately, he could — and I believe he wants to — destroy the viability of advertising-based web services altogether.