Subway's Jared Gains 40 Pounds and Suddenly Everyone's Talking About the Legal Consequences

Last Updated Feb 17, 2010 9:51 AM EST

Subway's Jared Fogle and Biggest Loser trainer Jillian Michaels have both endorsed products due to their alleged weight loss powers, only to find those products wanting. Due to the stars' different approaches, they face different legal consequences.

You've got to feel sorry for Subway. Last year their star endorser, swimmer Michael Phelps, got himself photographed sucking on a marijuana bong. This year Fogle, the everyman who lost 245 pounds on the Subway diet and became the hero of the chain's ads, is struggling to lose 40 pounds he gained since he began shilling for the brand.

OK, so it's not as serious as the Phelps crisis, but it ain't helping either. Perhaps Subway's delicious cheese-and-meat-and-bread confections (mayo and Southwest sauce? Yes please!) aren't as healthy as we'd like to think they are. Subway is trying to make lemons out of lemonade by sending him to run in the New York marathon. Sure, they'll get some decent PR out of it, but the weight loss proposition is suddenly a whole lot less attractive if it comes with a 26-mile-long caveat. That, at least, is the downside risk Subway is looking at right now.

As Ad Age points out, there's also a very slight legal risk: The FTC recently beefed up rules regarding celebrity and consumer endorsers:

Endorsers also may be liable for statements made in the course of their endorsements.

It would be extremely unlikely for the FTC to assert that as Jared has packed on the pounds again he must know that the Subway diet does not work. However, the threat is there.

Just ask Michaels, who just got sued (by her own customers) for false advertising over her "Jillian Michaels Maximum Strength Calorie Control" product. Plaintiffs claim that the product did not curb their appetites as promoted. Michaels' problem is that her ads' claims are much more specific than Fogle's were: "Two Capsules Before Main Meals and You Lose Weight ... That's It!"

That, of course, is not it. It is impossible to eat two capsules of anything before a meal and just lose weight no matter what. The claim is laughable on its face. It's also specific enough to be put to the test, which a court will now do. Michaels doesn't face any FTC action ... yet. But before celebrities assume that their lawyers will make things go away, they should bear in mind that it was baseball player Steve Garvey's ads for a bogus weight loss product that triggered these new rules in the first place.