February 1997 Advertising Law News

FTC WINS FEDERAL COURT ORDER TEMPORARILY HALTING DIET ADVERTISING

A federal district court judge in Miami has ordered SlimAmerica, Inc., and its officers to temporarily halt their business practices, and froze their assets, after hearing FTC evidence that the defendants made false and misleading ad claims in the marketing and sale of their diet product called "Super-Formula." FTC alleged that the defendants' ads falsely say Super-Formula will "blast" up to 49 pounds off you in only 29 days, "obliterate" five inches from waistlines, and "zap" three inches from your thighs--all without the need to diet or exercise. The ads say that all of these claims have been validated by scientific studies. FTC estimates that the defendants made between $5.3 million to $17.7 million from the sale of Super-Formula products. FTC has also asked that the court's final order include a permanent halt to the alleged deceptive advertising and redress for consumers who bought the defendants' diet products.

According to FTC's complaint, to induce consumers to purchase their weight loss pills, defendants allegedly placed full-page ads for their purported diet product called "Super-Formula" in at least 35 different newspapers and magazines throughout the country, and on the Internet. Consumers were told to call an "800" number where they could order a 30, 60, or 90 day supply of Super-Formula products at prices ranging from $49.95 to $129.95.

Defendants' ads and product literature featured Super-Formula as a "New Triple Medical Breakthrough" consisting of three different "weight loss weapons." The ads, published in magazines such as Ladies Home Journal, said Super-Formula could effectuate dramatic weight loss and remove inches from a user's body size in a short period of time. FTC alleges that these representations were false. The ads also said the representations made by the defendants are backed by scientific studies, when, in fact, FTC alleges, the defendants' claims haven't been scientifically validated in credible clinical studies.

The ads further cited an endorsement from a doctor--Howard Retzer, M.D., who allegedly had credentials with well-known nutrition and diet organizations. In fact, FTC alleges, there was no individual named Howard Retzer who is or has been a member of the American Council of Nutrition, nor are there any bona fide professional organizations known as The American College of Endocrinology and Nutrition or The Research Institute of Metabolism and Nutrition.

The judge granted the FTC's request for a temporary restraining order against all defendants halting the allegedly deceptive scheme on January 29, 1997. FTC has asked the court ultimately to order a permanent injunction against the defendants to bar them from engaging in similar deceptive practices in the future.

The complaint was filed in the U.S. District Court for the Southern District of Florida, in Fort Lauderdale on January 27, 1997 under seal. The seal was lifted January 31, 1997.

NOTE: The Commission files a complaint when it has "reason to believe" that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. The complaint is not a finding or ruling that the defendants have actually violated the law. The case will be decided by the court.

(SlimAmerica, Inc., FTC File No. 972 3019, February 3, 1997; Complaint, U.S. District Court for the Southern District of Florida, January 31, 1997, Civil Action No. 97-6072; materials relating to this FTC matter are available on the Internet at FTC's World Wide Web site at: http://www.ftc.gov.)

PAIN-RELIEF CLAIMS ARE FOCUS OF FTC FINAL AGREEMENTS

FTC gave its final OK to consent agreements with Natural Innovations, Inc. and William S. Gandee and World Media T.V., Inc., settling charges over their roles in the "Say No to Pain" infomercial for "The Stimulator," a purported pain relief device. FTC alleged that the infomercial included unsubstantiated pain-relief claims. The consent orders require the respondents to have scientific substantiation to support pain relief and health or medical benefits claims they make for The Stimulator or any other device. The orders also require them to have substantiation to support the claim that any endorsement or testimonial they use represents the typical experience of users, or to accompany such a claim with a prominent disclaimer.

NOTE: A consent agreement is for settlement purposes only and does not constitute an admission of a law violation. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of $11,000.

(World Media T.V., Inc., FTC Dkt. No. C-3717, February 28, 1997; Natural Innovations, Inc. et al., FTC Dkt. No. C-3718, February 28, 1997; materials relating to this FTC matter are available on the Internet at FTC's World Wide Web site at: http://www.ftc.gov.)

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