CSS Menu

Tuesday, March 18, 2014

ERSP Refers Advertising for Dinamo to FTC, FDA; Marketer Fails to Respond to ERSP Inquiry

The Electronic Retailing Self-Regulation Program (ERSP) has announced it will refer direct response advertising for Dinamo to the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) after the marketer, Natures Flava, LLC, failed to respond to an ERSP inquiry.

ERSP is an investigative unit of the advertising industry’s system of self-regulation and is administered by the Council of Better Business Bureaus. The marketer’s advertising came to ERSP’s attention pursuant to its ongoing monitoring program.

Claims at issue in the initial inquiry included:
  • “Diabetes no more!”
  • “It's targeted to lower blood sugar levels and fight against diabetes!" and "Dinamo helps lower blood sugar levels."
  • When I woke up in the morning prior to the Dinamo, my insulin levels were usually in the high 200s - 250, 260, 270. And since I started using the Dinamo, that number has gone to about the 160s, 170s, 180s." [Larry]
  • "Created for DIABETICS to help maintain blood sugar levels with only NATURAL and ORGANIC ingredients.”
Pursuant to the ERSP Policies and Procedures, after failing to provide a substantive response to ERSP’s original inquiry within fifteen calendar days, the marketer was afforded a second ten-day period in which to submit a substantive response. The marketer again did not submit a written response to the inquiry and pursuant to section 2.6 (B) of the ERSP Policies and Procedures, this matter has been referred to the FTC and FDA.

ERSP Reviews Advertising for ‘Zvelt,’ Marketer Voluntarily Discontinues Claims

The Electronic Retailing Self-Regulation Program (ERSP) has recommended Progenum International, LLC modify or discontinue certain claims for Zvelt, a weight-loss patch.

ERSP is an investigative unit of the advertising industry’s system of self-regulation and is administered by the Council of Better Business Bureaus. The marketer’s advertising came to the attention of ERSP pursuant to its ongoing monitoring program.

ERSP reviewed broadcast and online advertising for Zvelt and identified several claims for review, including:
  • “Just apply and say goodbye to those stubborn pounds;”
  • “Just stick the patch on and watch the pounds roll off”
  • THE SAFEST, EASIEST WAY TO LOSE WEIGHT!”
  • “I was amazed with how fast the weight came off and stayed off”
  • “I lost 75 pounds and I've kept it off for 6 years.”
  • “Zvelt's unique formula of clinically proven ingredients are absorbed slowly through the skin to stimulate your body's natural fat burning capabilities.”
During the course of the inquiry, the marketer informed ERSP that it had voluntarily discontinued its broadcast advertising, which contained several of the claims at issue in the inquiry.

After reviewing the evidence submitted by the marketer, ERSP determined that the consumer testimonials that appear on the product website are atypical and are not supported. ERSP recommended that testimonial claims of specific weight loss include a clear and conspicuous disclosure that the weight loss was obtained in conjunction with diet and exercise.

ERSP also found that the claim “No Crazy Diets,” in the context in which it is presented, may be reasonably interpreted by consumers as meaning they can lose significant weight without the assistance of a calorie-restricted diet. ERSP concluded that this message was not accurate.

Further, ERSP determined that the claim “SAFEST, EASIEST WAY TO LOSE WEIGHT” could be considered a comparative superiority claim and without evidence to substantiate this claim, ERSP concluded that it was not supported.

The company, in its marketer’s statement, said “Progenum appreciates all of the interaction ERSP has afforded us during this process. Their input has been extremely helpful, and in fact, has provided the basis for the new scripting we are currently developing.”

ERSP Reviews Advertising for ‘Troxyphen,’ Recommends Marketer Modify or Discontinue Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that truDERMA, LLC, discontinue certain claims for the company’s Troxyphen dietary supplement, including claims that the product is “safe and clinically researched.”

ERSP is an investigative unit of the advertising industry’s system of self-regulation and is administered by the Council of Better Business Bureaus. The marketer’s advertising came to the attention of ERSP through an anonymous competitive challenge.

ERSP reviewed online advertising claims for Troxyphen, including:
  • "Troxyphen is safe & clinically researched”
  • “The patented test [sic] boosting blend was shown in clinical studies to: Raise testosterone levels 98.81% in 8 weeks.”
  • “Gains in Muscle Size & Strength”
  • Tribulus Terrestris - This extract increases the body’s natural testosterone levels and thereby improves male sexual performance and helps build muscle.”
  • “Burn excess fat | Improve sex drive | Gain muscle mass”
As support for the performance and establishment claims at issue, the marketer submitted testing on its key ingredient. After reviewing the evidence, ERSP concluded that truDERMA provided a reasonable basis for claims relating to an “increased sex drive.”

However, ERSP determined that the marketer did not provide adequate support for claims that Troxyphen will “burn excess fat” or that users will “gain muscle mass.” ERSP recommended that the marketer discontinue any claims of weight and/or fat loss, increased muscle, and improved BMI.

ERSP also recommended that the marketer discontinue claims that promise quantified performance results and modify general claims of increased testosterone by disclosing that the product must be used in conjunction with resistance training.

The marketer did not provide evidence indicating that the dosages of ingredients contained in Troxyphen will provide the results specifically stated in the advertising. As a result, ERSP recommended truDERMA discontinue several ingredient claims and the claim that “Troxyphen is safe & clinically researched.”

The company, in its marketer’s statement, said, “truDERMA appreciates ESRC's comments and direction on our advertising.  We are committed to helping people lead healthier, happier lives.  truDERMA will give serious consideration to ESRC's recommendations in our advertising practices."

Wednesday, February 26, 2014

FTC Files Complaint Against Apply Knowledge, YES International

The FTC announced on Monday that it has filed a complaint against Apply Knowledge, a work-from-home business opportunity that "conned millions of dollars from consumers by falsely telling them they could easily earn thousands of dollars a month by purchasing bogus business coaching services and establishing their own Internet businesses." The FTC noted that consumers who purchased the company's "product(s)" lost thousands if not tens of thousands of dollars.

From the FTC Press Release: "U.S. District Court for the District of Utah froze the assets of the defendants, who did business under a variety of names, including Essent Media, LLC, Net Training, LLC, YES International, Coaching Department, and Apply Knowledge, and appointed a temporary receiver to take control of the operations, pending the outcome of a preliminary injunction hearing set for March 20, 2014. The FTC seeks to put a permanent stop to the operations and return money to consumers."

According to the FTC’s complaint, the defendants’ websites told numerous false “rags to riches” stories, using photos – obtained from stock photo agencies – of supposed users of the defendants’ services, and made false and unsubstantiated claims about how much money consumers could earn.

ERSP had previously examined the advertising claims made by defendant YES International, pursuant to an anonymous consumer challenge (ERSP Case #311). In particular, ERSP reviewed earnings and testimonial claims that appeared on a variety of different lead-generation websites.

In examining the sites, ERSP noted that each site displayed at least four testimonials. However, the exact text of each testimonial appeared on multiple sites, attributed to different consumers. ERSP recommended that the marketer discontinue the use of such testimonials.

The company agreed to modify the claims at issue, and said it would provide an appropriate disclaimer on its website regarding the testimonials. Further, the company said, it “will strive to eliminate duplicate or replicated testimonials from any website it operates for the purpose of advertising its services and products, and to ensure that the testimonials are substantiated and do not overstate results from YES’ products and services.”


Tuesday, February 4, 2014

ERSP Finds Direct Digital Can Support Performance Claims for ‘Nugenix,’ Recommends Marketer Modify Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Direct Digital, LLC can support certain claims for Nugenix, a dietary supplement intended to increase testosterone levels. ERSP recommended the advertiser discontinue claims related to increased “muscle mass.”

ERSP is an investigative unit of the advertising industry’s system of self-regulation and is administered by the Council of Better Business Bureaus. The marketer’s advertising came to the attention of ERSP pursuant to an anonymous competitive challenge.

ERSP reviewed online advertising for Nugenix and identified several claims for review, including:
  • “Helps increase testosterone”
  • “Helps increase libido and sexual performance
  • “Helps increase muscle mass”
  • “Helps increase energy”
  • Studies and tests show the main ingredient in Nugenix is effective”
  • Nugenix is the #1 bestselling men’s vitality product in GNC Stores in the Unites States for 2013 for a reason."
During the course of ERSP’s inquiry, the marketer said that it had voluntarily discontinued several claims cited by ERSP and had significantly revised its website. However, the marketer indicated it would continue to disseminate a number of core claims such as “helps increase free testosterone.”

The marketer also informed ERSP that it had discontinued any and all claims indicating that the product or its ingredients are “clinically proven” to provide the indicated benefits. The marketer also noted that it will discontinue claims relating to Tribulus terrestris.

As support for general performance claims made in the advertising, the marketer submitted a number of studies on the ingredients contained within Nugenix. ERSP found that the marketer could support general performance claims that Nugenix “helps increase” testosterone, libido, sexual performance, and energy.

However, after reviewing the evidence in the case record, ERSP determined that unqualified claims relating to increased muscle mass were not adequately supported.

ERSP found that the marketer provided a reasonable basis for claims regarding zinc, Vitamin B, and L-citrulline. ERSP further concluded that the evidence submitted supported claims that the product is “the #1 bestselling men’s vitality product in GNC Stores in the Unites States for 2013...

The company, in its marketer’s statement, said “While we disagree with ERSP’s conclusion that the claim “helps increase muscle mass” is not adequately qualified, with the goal of full cooperation with advertising self-regulation, we will take ERSP’s conclusion into account when developing future advertisements.  Direct Digital, LLC is committed to ensuring that its advertising is truthful, accurate, and substantiated, and we value and support industry self-regulation.”

Wednesday, January 29, 2014

ERSP Continues to Expand its Review Program

The Electronic Retailing Self-Regulation Program (ERSP) today reported on the last three (3) months of activity, under its program to review telemarketing scripts and calls by companies participating in its Telemarketing Review Program, as well as its expansion to monitor recordings of live real estate investing seminars.

ERSP is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus and funded by the Electronic Retailing Association.

ERSP, founded in 2004, has earned the respect of the direct-response industry through its expeditious, fair and even-handed review of core truth-and-accuracy advertising claims made by electronic retailers.

Since September of 2013, ERSP has broadened the scope of its monitoring review with the inclusion of EvTech Media, LLC as a new participant in the ERSP Review Program. As part of its review, ERSP will monitor audio recordings of live, free real estate seminars offered by EvTech. As is the case with its monitoring of recordings for the existing ERSP Review Program Participants, ERSP will be monitoring the Participant’s live seminar recordings for adherence to general advertising principles regarding the truthfulness and accuracy of the representations being made to consumers.

As part of its expanded monitoring review of the advertising practices of the lead generation industry, since the inception of the program, ERSP has closed eighteen (18) cases regarding the truth and accuracy of core claims communicated in lead generation advertising.

“ERSP is encouraged by the commitments of the participants to self-regulate their advertising practices, and we’re very optimistic that other companies in this industry will follow their example and join us in this self-regulatory initiative,” said Peter Marinello, Director, ERSP.

Monday, December 23, 2013

ERSP Recommends Global Smart Products Discontinue Certain Claims for Lead-Generation Program; Company Agrees to Do So

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Global Smart Products modify or discontinue certain claims for the company’s “Female Power Program,” a lead-generation wealth creation business.

ERSP is an investigative unit of the advertising industry’s system of self-regulation and is administered by the Council of Better Business Bureaus. The marketer’s advertising came to the attention of ERSP through ERSP’s ongoing monitoring program.

ERSP reviewed online advertising claims for the lead-generation, wealth-creation product, including:

  • “A woman’s guide to becoming a Millionaire”
  • “This course will teach you how to make money and how to go from having nothing to having millions of dollars in your bank account”
  • “Get inspired and learn from a real life story of a woman who has made millions of dollars from implementing these simple techniques”
  • “Revolutionary step-by-step guide to creating wealth!”
  • “Within the very first year of using the Female Power program, I have made over $100,000”
The advertising at issue featured the following disclaimer: “Disclaimer: Individual results may vary.”

The disclaimer, ERSP noted, was inadequate to qualify the atypical results promoted by the marketer in testimonials and earnings claims.

ERSP recommended that in future advertising the marketer clearly, conspicuously and in close proximity to the main claim, disclose the amount of money consumers can generally expect to earn, based upon reliable program usage data it has received from consumers.

Further, given the absence of evidence in the record, ERSP recommended the marketer discontinue claims that indicate users of the system can earn money quickly and easily.

Finally, ERSP recognized the marketer’s voluntary removal of claims that formed the basis of this inquiry, such as:

  • “This course will teach you how to make money and how to go from having nothing to having millions of dollars in your bank account.”
The company, in its marketer’s statement, said that it would follow ERSP’s recommendations and that it is “… in the process of revising our marketing material to remove all express earning claims and/or claims that might mislead the end user.”