Weight loss testimonials: A critique of potential FTC restrictions on diet advertising

Food and Drug Law Journal

Volumn 63, Issue 2, 2008, Pages 493-507

  Nguyen, Eric S ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ANTIOXIDANT; VITAMIN;

ADVERTIZING; CLINICAL EFFECTIVENESS; CONSUMER; CONSUMER ADVOCACY; COURT; DIET SUPPLEMENTATION; FOOD AND DRUG ADMINISTRATION; FOOD SAFETY; FORGERY; GOVERNMENT REGULATION; HEALTH CARE ORGANIZATION; HEALTH SERVICE; LAW ENFORCEMENT; MARKETING; MASS MEDIUM; OBESITY; PRACTICE GUIDELINE; REVIEW; STANDARDIZATION; WEIGHT REDUCTION; WITNESS;

ADVERTISING AS TOPIC; ANTI-OBESITY AGENTS; DISCLOSURE; HUMANS; OBESITY; SPEECH; UNITED STATES; UNITED STATES FEDERAL TRADE COMMISSION; WEIGHT LOSS;

EID: 44849112327     PISSN: 1064590X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (114)

1. See Richard L. Cleland et al., Federal Trade Commission (FTC), Weight-Loss Advertising: An Analysis of Current Trends 1 (2002) ("An estimated 61 percent of U.S. adults are overweight or obese, and the trend is in the wrong direction. Overweight and obesity constitute the leading cause of preventable death ... resulting in an estimated 300,000 deaths per year at a cost (direct and indirect) that exceeds $100 billion a year.") [hereinafter Analysis of Current Trends];
2. Chester S. Galloway, Herbert Jack Rotfeld & Jef I. Richards, Holding Media Responsible for Deceptive Weight-Loss Advertising, 107 W. VA. L. REV. 353, 354 nn. 1-2 (2005) (providing statistics).
3. Gina Kolata, Health and Money Issues Arise Over Who Pays for Weigh Loss, N.Y. TIMES, (Sept. 30, 2004), at A1 ("The Federal Trade Commission estimates that annual revenue from sales of diet foods and beverages alone reaches $40 billion.");
4. Patricia Winters Lauro, As Waistlines Expand, So Does Advertising for a Range of Weight Loss Programs and Products, N.Y. TIMES, (Jan. 13, 2003), at C1.
5. Lauro, supra note 2, at C1.
6. See Elisabeth Rosenthal, Commercial Diets Lack Proof of their Long-Term Success, N.Y. TIMES, (Nov. 24, 1992), at A1 (interviewing several doctors about scientific support for the effectiveness of commercial diets).
7. Analysis of Current Trends, supra note 1, at viii, 9-10 (2002) (providing examples and describing the prevalence of consumer testimonials).
8. See Guides Concerning Use of Endorsements and Testimonials in Advertising, 16 C.F.R. § 255 (2005) [hereinafter Testimonial Guidelines].
9. See Guidelines Concerning the Use to [sic] Endorsements and Testimonials in Advertising, 72 Fed. Reg. 2214-2217 (Jan. 18, 2007) [hereinafter Federal Register Notice];
10. Press Release, FTC, FTC Requests Comments on Endorsement Guides (Jan. 16, 2007), available at http://www.ftc.gov/opa/2007/01/fyi0707.htm.
11. Letter from the Attorneys General of 34 States to the FTC 3 (June 18, 2007), available at http://www.ftc.gov/os/comments/endorsementguides/ 527492-00013.pdf [hereinafter Letter of Attorneys General].
12. E.g., American Association of Advertising Agencies & American Advertising Federation, Comments Submitted for the FTC Endorsement Guides Review, Project No. P034520, at 11, available at http://www.ftc.gov/os/ comments/endorsementguides/527492-00020.pdf [hereinafter AAAA Comments].
13. See, e.g., Letter from Jenny Craig, Inc. to the FTC 2 (June 18, 2007), available at http://www.ftc.gov/os/comments/endorsementguides/ 527492-00011.pdf ("If the testimonial end of the spectrum is squeezed, consumers will no doubt next be deluged by difficult-to-understand clinical data of questionable origin and limited utility. Blanket rules that attempt to define with specificity what data must accompany a weight loss testimonial will only lead to even more consumer confusion.") [hereinafter Jenny Craig letter]; Letter from NutriSystem, Inc. to the FTC 26-28, available at http://www.ftc.gov/os/comments/endorsementguides/527492-00008.pdf [hereinafter NutriSystem letter]. All letters to the FTC cited in this article were responses to the agency's request for comments documented in the Federal Register Notice, supra note 7.
14. AAAA Comments, supra note 9, at 9-12.
15. Letter from Arlen Specter, U.S. Senator, to the FTC (July 31, 2007), available at http://www.ftc.gov/os/comments/endorsementguides/527492- 00028.pdf [hereinafter Specter letter].
16. See, eg., Letter from The National Association of National Advertisers to the FTC 11 (June 18, 2007), available at http://www.ftc.gov/os/comments/endorsementguides/527492-00016.pdf [hereinafter ANA Letter]; Letter from Dick Armey, Chairman, FreedomWorks, to the FTC (June 18, 2007), available at http://www.ftc.gov/os/comments/endorsementguides/ 527492-00026.pdf (encouraging the FTC to adopt "a less restrictive alternative to the sweeping, pre-market 'averaging' mandate").
17. Deborah Platt Majoras, Food for Thought: The FTC and Market Influences on Consumer Health, 62 FOOD & DRUG L.J. 433, 433 (2007) ("The two agencies share jurisdiction over health-related products pursuant to a longstanding agreement.");
18. see Working Agreement Between the FTC and FDA (June 9, 1954), 3 Trade Reg. Rep. (CCH) ¶ 9850.
19. See Food, Drug, and Cosmetic Act of 1938 (FDCA), Pub. L. No. 75-717, 52 Stat. 1040 (1938) (current version at 21 U.S.C. § 301 et seq. (2000)).
20. Pub. L. No. 103-417, 108 Stat. 4325 (1994).
21. See id.; see also Charles Mueller, The Regulatory Status of Medical Foods and Dietary Supplements in the United States, 15 NUTRITION 249-51 (1999).
22. 21 C.F.R. pt. 119 (2004).
23. Id.
24. See Ten Years After the Implementation of DSHEA: The Status of Dietary Supplements in the United States: Hearing Before the Subcomm. on Human Rights and Wellness of the H. Comm. on Government Reform, 108th Cong. (Mar. 24, 2004) (statement of Robert E. Brackett, Director, Center for Food Safety and Applied Nutrition (CFSAN), FDA).
25. Id.; see DSHEA, Pub. L. No. 103-417, 108 Stat. 4325 (1994).
26. See generally Michael McGuffin & Anthony L. Young, Premarket Notifications of New Dietary Ingredients - A Ten Year Review, 59 FOOD DRUG L.J. 229 (2004).
27. See Ephedra: Who is Protecting the American Consumers?: Hearing Before the Subcomm. on Oversight of Government Management, Restructuring, and the District of Columbia of the S. Comm. on Governmental Affairs, 107th Cong. 89 (Oct. 8, 2002) (statement of J. Howard Beales, III, Director, Bureau of Consumer Protection, FTC).
28. See id. ("The Commission's role in reviewing the truthfulness and accuracy of claims presumes that products are legally in the marketplace and do not pose an unacceptable risk of consumer injury.").
29. See Testimonial Guidelines, supra note 6.
30. Id. § 255.2(a).
31. Id. § 255.2(a).
32. The FTC provided the following example of its disclosure requirement: "The consumer states that she has needed to take the [television] set to the shop for repairs only one time during her 2-year period of ownership and the costs of servicing the set to date have been under $10.00. Unless the advertiser possesses and relied upon adequate substantiation for the implied claim that such performance reflects that which a significant proportion of consumers would be likely to experience, the advertiser should include a disclosure that either states clearly and conspicuously what the generally expectable [sic] performance would be or clearly and conspicuously informs consumers that the performance experienced by the endorser is not what they should expect to experience. The mere disclosure that "not all consumers will get this result" is insufficient because it can imply that while all consumers cannot expect the advertised results, a substantial number can expect them." Id. § 255.2, ex. 2.
33. Id. § 255.2(b).
34. Jennifer E. Gross, Note, The First Amendment and Diet Industry Advertising: How "Puffery" in Weight-Loss Advertisements Has Gone Too Far, 20 J.L. & HEALTH 325, 338 (2006).
35. See id. at 338-40.
36. See Analysis of Current Trends, supra note 1, at 26-27.
37. Id. at 27.
38. If unsafe products were reaching the market, getting them off shelves would be a more pressing problem than protecting disappointed dieters. The FTC's advertising guidelines are a strange first place to look for a solution to what would effectively be an FDA problem. Strict restrictions on advertising might lessen the probability of a consumer purchasing an unsafe drug but would do nothing to change the fact that the government had already allowed the product to reach the marketplace. That harm would be better addressed by FDA kneepads rather than FTC band-aids. None of this forecloses the reasonable argument that FTC advertising guidelines should be strengthened. However, the agency must be careful not to overreach to solve phantom problems and, in doing so, violate constitutional principles.
39. Analysis of Current Trends, supra note 1, at 21-22.
40. Id. at 22.
41. Id.
42. Among those claims: "In six months I lost 40 pounds, and have maintained my weight for eight months" and "I lost 120 LBS." Id. at 23. The average weight loss claimed in one sample of advertisements was 71 pounds. Id. at 10. The most remarkable example came from a woman who stated, "7 weeks ago I weighed 268 lbs; now I am down to 148 lbs! During this time I didn't change my eating habits at all: the pounds must have disappeared only due to the new slimming capsule. My appearance is so different that my friends actually believe that I had liposuction." Id.
43. See id. at 23-24.
44. Id. at 24.
45. Letter of Attorneys General, supra note 10.
46. See Federal Register Notice, supra note 7, at 2215-16.
47. See Manoj Hastak & Michael B. Mazis, Effects of Consumer Testimonials in Weight Loss, Dietary Supplement and Business Opportunity Advertisements (report submitted to FTC, Sept. 22, 2004) [hereinafter Study 2];
48. Manoj Hastak & Michael B. Mazis, The Effect of Consumer Testimonials and Disclosures of Ad Communication for a Dietary Supplement (report submitted to FTC, Sept. 30, 2003) [hereinafter Study 1]. Both studies are available at http://www.ftc.gov/reports/endorsements/study1/materials/index. shtm.
49. See Study 1, supra note 43, at 2; Study 2, supra note 43, at 4; ANA Letter, supra note 13, at 8 (summarizing the limited scope of the two studies).
50. See Study 2, supra note 43, at 1.
51. Id. at 6.
52. Id.
53. Id. at 7.
54. Study 1, supra note 43, at 9; see Study 2, supra note 43, at 12-13.
55. Gross, supra note 50, at 354.
56. For their proposal, see Letter of Attorneys General, supra note 8.
57. This proposal was anticipated by several commentators, including Senator Arlen Specter, see Specter letter, supra note 12, at 1, and NutriSystem, see NutriSystem letter, supra note 10, at 29.
58. For suggestions of this proposal, see, for example, Specter Letter, supra note 12, at 1; Letter from the Nat'l Ass'n of Consumer Agency Administrators to the FTC 4 (May 9, 2007), available at http://www.ftc.gov/os/comments/endorsementguides/527492-00004.pdf (arguing that if the FTC does not adopt a regulation similar to that proposed by the attorneys general, it should require "than an advertiser indicate results may not be typical ... [and] that the disclosure be clear and conspicuous and appear for the length of the endorsement or testimonial").
59. Jenny Craig argued that the FTC should maintain the status quo. See Jenny Craig letter, supra note 10, at 2 ("We do not believe that the Commission should use its review of the Guides to tackle the vexing problem of deceptive weight-loss advertising.").
60. E.g., Gross, supra note 30, at 335 (grouping the decision to "join Weight Watchers and Jenny Craig" with the decision to either wear a "Fat-Be-Gone" ring or take "a spoonful of 'Body Solutions' before bed"). But see Letter from Gary D. Foster, Temple University Center for Obesity Research and Education, to the FTC 2 (Apr. 2007), available at http://www.ftc.gov/os/comments/endorsementguides/527492- 00005.pdf [hereinafter Center for Obesity Research letter] (distinguishing between weight management programs and "miracle in the bottle" products). To her credit, Gross is generally consistent in focusing her critique on concerns about the safety and the complete ineffectiveness of some advertised diet products. E.g., Gross, supra note 30, at 326, 329, 334, 336.
61. See, e.g., Analysis of Current Trends, supra note 1, at 10-11 (ads may deceive through false claims about effectiveness or by "presenting testimonials claiming ... atypical weight loss as typical or ordinary experiences ..."); id. at 23 (juxtaposing an atypical claim that "[i]n six months I lost 40 pounds, and have maintained my weight for eight months" with false claims that include "Lose 10 lbs and unwanted inches in 48 hours. Guaranteed!" and "Makes sure that the fat from your last meal leaves your body before being digested"). Others have recognized the need to distinguish between products that are effective - even if their advertisements are aspirational rather than typical - and those that are "unsubstantiated" and "not based on science." See, e.g., Center for Obesity Research letter, supra note 55, at 2. One student note focuses almost exclusively on the deceptive advertising that has health and safety implications, rather than on the documentation of atypical experiences. See Gross, supra note 32. Deciding to prevent "diet products [from being] advertised as having 'phenomenal fat-burning' effects [when they] are actually products that may cause heart attacks or stroke," id. at 347, is distinct from the decision to prevent effective products from being advertised using atypical or aspirational testimonials. The D.C. Circuit has distinguished between claims about diet programs that "threaten consumer's [sic] health and safety" and those that are otherwise merely misleading. See Pearson v. Shalala, 164 F.3d 650, 656 (D.C. Cir. 1999).
62. See Theresa Howard, Presidential Allstate Ads Counter the Gecko, USA TODAY, (Aug. 16, 2004), at B6.
63. See Stuart Elliot, Proving the Paper Towel Business is not Quiet: Cut and Dried, Brawny Rediscovers its Strengths, N.Y. TIMES, (Dec. 22, 1993), at D18.
64. See Va. State Bd. of Pharm, v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976).
65. See id. at 770-72.
66. Id. at 772.
67. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y, 447 U.S. 557 (1980).
68. Id. at 566.
69. Id.
70. Id.
71. Id.
72. Thompson v. W. States Med. Ctr., 535 U.S. 357, 374 (2002).
73. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554-55 (2001) ("Admittedly, several Members of the Court have expressed doubts about the Central Hudson analysis and whether it [as opposed to a stricter scrutiny analysis] should apply in particular cases."). In Lorillard, the Court pointed to Justice Thomas's concurring opinions in Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173 (1999), and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) as evidence of a shift toward greater protection of commercial speech. In 44 Liquormart, Justice Scalia also expressed concern that Central Hudson is insufficiently protective of free speech. 44 Liquormart, 517 U.S. at 517 (Scalia, J., concurring in part and concurring in the judgment) ("I share Justice Thomas's discomfort with the Central Hudson test, which seems to one to have nothing more than policy intuition behind it. I also share Justice Stevens's aversion towards paternalistic governmental policies that prevent men and women from hearing facts that might not be good for them.").
74. Gross, supra note 30, at 332 (quoting Bruce Somerville, Preserving the Status Quo in Commercial Speech Protection, http://www.wk.net/bsomerville/highres/academic/commercial_speech.htm).
75. Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999), reh'g denied, 172 F.3d 72 (1999) (striking down regulations that would permit advertisers of dietary supplements to make only claims that were backed by "significant scientific agreement").
76. See id. at 655. For example, a product called "Texas Chili" manufactured in Florida would be potentially misleading. The government might require a "Made in Florida" disclaimer on the packaging. On the other hand, a Florida product labeled "Made in Texas" would be inherently misleading and be subject to more aggressive regulation.
77. Id.
78. Id.
79. Id. (quoting Peel v. Att'y Reg. & Disciplinary Comm'n of Ill., 496 U.S. 91, 105 (1990)).
80. So long as the claim may be made in a way that is not deceptive, the information is potentially misleading and not inherently misleading. Whitaker v. Thompson, 248 F. Supp. 2d 1, 9-10 (D.D.C. 2002) (emphasizing that potentially misleading advertisements may be required to include more information but may not be banned in their entirety).
81. Jim Chen, Beyond Food and Evil, 56 DUKE L.J. 1581, 1585 (2007).
82. E.g., Posting of Rebecca Tushnet to 43(B)log: False Advertising and More, http://tushnet.blogspot.com/2006/06/first-amendment-prohibits- regulation.html (June 1, 2006 11:20 EST) (criticizing the distinction in Piazza's Seafood World, LLC v. Odom, 448 F.3d 744 (5th Cir. 2006)).
83. Central Hudson, 447 U.S. at 566.
84. See, e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 485 (the government has a substantial interest in "promoting the health, safety, and welfare of its citizens"); see also Pearson, 164 F.3d at 656 ("At this level of generality ... a substantial governmental interest is undeniable.").
85. 248 F. Supp. 2d 1 (D.D.C. 2002).
86. Id. at 16.
87. See, e.g., Pearson v. Shalala, 164 F.3d 650, 656 (D.C. Cir. 1999); Nat'l Fed'n of the Blind v. FTC, 420 F.3d 331, 339 (4th Cir. 2005).
88. Pearson, 164 F.3d at 656.
89. Pearson, 164 F.3d at 657 (D.C. Cir. 1999) (citing Peel v. Att'y Reg. & Disciplinary Comm'n of Ill., 496 U.S. 91 (1990); Shapero v. Ky. Bar Ass'n, 486 U.S. 466 (1988); and In re R.M.J., 455 U.S. 191 (1982)).
90. See In re R.M.J., 455 U.S. at 203; Pearson, 164 F.3d at 655, 657.
91. See Study 2, supra note 43, at 11. These studies assumed that the advertised product was ineffective, and that consumers expecting a weight loss were therefore deceived. The proportion of deceived consumers among the general public would be lower than the studies anticipate if we assume that some ads claiming weight loss effects are in fact legitimate.
92. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 566 (1980).
93. See Bates v. State Bar of Ariz., 433 U.S. 350, 375 (1977).
94. Whitaker v. Thompson, 248 F. Supp. 2d 1, 2 (D.D.C. 2002).
95. Id. at 8.
96. Id. at 9-10 (internal punctuation omitted) (quoting Central Hudson, 447 U.S. at 562).
97. Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 146 (1994) (internal quotations omitted).
98. See supra note 55.
99. This possibility was suggested explicitly by the D.C. Circuit in Pearson, 164 F.3d at 659-60.
100. A researcher from the Temple University Center for Obesity Research and Education has reminded the FTC that not all diet programs are problematic. See Center for Obesity Research letter, supra note 55, at 4 ("Not all testimonials in the weight loss industry present risk of harm to consumers .... Testimonials in support of reasonable programs that are based on the National Heart, Lung, and Blood Institute (NHLBI) and United States Department of Agriculture (USDA) guidelines present little or no risk to consumers. Indeed, they motivate customers to change behavior and modify their diets in a healthful way."). The FTC has in some places distinguished, for example, between meal replacement programs and dietary supplements that are marketed as alternatives to traditional dieting and exercise. See Analysis of Current Trends, supra note 1, at ix. The FTC has pursued an effective, targeted effort in a "red flag" campaign against diet ads by defining a suspect class of claims that would be scientifically feasible. See NutriSystem letter, supra note 10, at 17.
101. Cf. Pearson v. Shalala, 164 F.3d 650, 659 (D.C. Cir. 1999) (suggesting this disclaimer for claims on the labels of dietary supplements). The FTC might also target for additional regulation or enforcement a more narrow class of products containing specific active ingredients. The agency has noted, for example, that products listing chitosan or chromium as an active ingredient are repeatedly misrepresented in deceptive advertising. See Analysis of Current Trends, supra note 1, at 27. In any case, the FTC must ensure that its actions are narrowly tailored to advance a substantial government interest.
102. Letter from the FTC to FDA 3 (Sept. 13, 2002), available at http://www.ftc.gov/os/2002/09/fda-textversion.pdf. The letter and enclosed comments were made in response to a request by FDA. See Request for Comment on First Amendment Issues, 67 Fed. Reg. 34,942 (May 16, 2002).
103. In the legal opinion it attached to its comments, NutriSystem discussed the difficulty of arriving at a meaningful figure to report. See NutriSystem letter, supra note 10, at Exhibit A, Part II.D.
104. Id. at Exhibit A, Part II.D. 1.
105. See, e.g., Margaret A. Lavery & John W. Loewy, Identifying Predictive Variables for Long-term Weight Change after Participation in a Weight Loss Program, 93 J. AM. DIETETIC ASS'N 1017 (1993) (identifying more than a dozen statistically significant predictors of weight change).
106. See Center for Obesity Research letter, supra note 57, at 3 ("Imposing such a requirement on legitimate advertisers of weight management programs ... would impose a substantial and unnecessary burden on advertisers of legitimate products and programs."); cf. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 650-51 (1985). In Zauderer, the Court reviewed an advertisement for attorney services that claimed that if there was no recovery in a particular type of case, "no legal fees" would be owed. See id. at 631. The Court determined that a requirement that the attorneys disclose the fact that clients might still "be liable for significant litigation costs," id. at 650 (emphasis added), would not be unduly burdensome or otherwise violate the First Amendment.
107. See Center for Obesity Research letter, supra note 55, at 3 ("While averages are intuitively appealing, there is no 'average' consumer. Moreover, average values vary considerably based on age, race, gender and initial weight and could be manipulated by any study design used to inflate averages. The amount of information that would be required to accurately interpret averages (sample size, age, gender, ethnicity, length of treatment, medication status, medical conditions) is so burdensome it would undermine the FTC's laudable efforts to make claims easy to understand."). The American Herbal Products Association provided a parallel example: "For example, if an automobile manufacturer wished to advertise the longevity of its model through an endorsement advertisement of a consumer displaying the odometer of one of its cars at 210,000 miles, it would need to incur whatever expenses would be associated with tracking the longevity of all such models or a representative sample sufficiently large to accurately describe the longevity, in mileage, generally achieved with this model car. And any additional expenses incurred to determine generally expected performance should be expected to be passed on to consumers." Letter from the American Herbal Products Association to the FTC 11 (June 18, 2007), available at http://www.ftc.gov/os/comments/endorsementguides/527492-00018.pdf.
108. Analysis of Current Trends, supra note 1, at 2 ("Public health suffers as well. The deceptive promotion of quick and easy weight-loss solutions potentially fuels unrealistic expectations on the part of consumers. Consumers who believe that it is really possible to lose a pound a day may quickly lose interest in losing a pound or less a week.").
109. The oral disclaimer on television would be similar to that required of political candidates. See Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81, 106 (codified as amended at 2 U.S.C. § 441(d)) (requiring "a statement by the candidate that identifies the candidate and states that the candidate has approved the communication").
110. See Center for Obesity Research letter, supra note 55, at 2 (describing ineffective products on the market); see also Gross, supra note 30, at 342-48 (documenting safety problems). NutriSystem highlighted for the agency examples of ineffective products that have reached the shelves, were targeted by individual enforcement actions, and would have reached store shelves even if advertising were banned entirely. For example, the product Xenadrine EFX was sold despite a study that users experienced less weight loss than those participants taking a placebo. See NutriSystem letter, supra note 10, at 19.
111. Center for Obesity Research letter, supra note 55, at 2.
112. A former Chief Counsel of FDA has documented the problems associated with insufficient resources appropriated to that agency. See Peter Barton Hutt, The State of Science at the Food and Drug Administration, prepared for the Science and Technology Subcommittee of FDA Science Board (Nov. 16, 2007), available at http://www.fda.gov/ohrms/dockets/ac/07/briefing/2007- 4329b_02_01_FDA%20Report%20on%20Science%20and%20Technology.pdf.
113. Nancy J. Stohs, Toothpicks, A Little Glue Help Build Perfect Burger, MILWAUKEE J. SENTINEL, (Oct. 17, 1999), at 2.
114. See Gross, supra note 30, at 355.