ERSP Recommends Creative Product Solutions Modify Advertising Claims for Reduxx TrimSuit; Finds Advertiser can Support Certain Performance Claims

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Creative Product Solutions modify consumer testimonials in advertising for the “Reduxx TrimSuit.” ERSP determined that the marketer could support certain performance claims for the weighted exercise suit.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to the attention of ERSP pursuant to its ongoing monitoring program.

ERSP reviewed broadcast and online advertising for Reduxx TrimSuit and identified several claims for review, including:

• “Just wear it and lose weight!” and “You don't have to change what you do - Just change into the TrimSuit!”
• “The REDUXX TrimSuit will intensify all activities, causing your muscles to put in the overtime and burn calories at a faster rate.”
• “Enhances athletic performance,” “Increased endurance,” and “Improves your overall health.”
• “The Reduxx TrimSuit is proven to enhance your weight loss, athletic performance and over all health and well being.”
• “I lost 7 pounds wearing the TrimSuit,” “I lost 22 pounds,” “I've lost 15-20 pounds,” “135 pounds in the last year,” ”Lost those last 8 pounds,” ”I wore the TrimSuit and lost 35 pounds,” and “From a 60" waist to a 36" waist.” [Infomercial testimonials]

Creative Product Solutions submitted a study conducted on the Pro Powersuit, a prototype for the Reduxx TrimSuit. The results showed significant increases in calorie burn for those wearing the Pro Powersuit as compared to those not wearing any weighted exercise suit. ERSP found no significant differences between the prototype and the current product, the Reduxx TrimSuit. The marketer also noted that weighted exercise suits are used by athletes as increasing weight/resistance while training can help to improve endurance, strength, and stamina. ERSP found the evidence submitted to be sufficient to support the performance claims made in the advertising.

However, ERSP found that consumer testimonials featured quantified weight-loss claims without a clear and conspicuous disclosure stating that the results promoted through the testimonials required adherence to a strict diet and exercise regimen.

ERSP further recommended the disclosure indicate the results that consumers can typically expect from use of the product in conjunction with diet and exercise.

The company, in its marketer’s statement, said that while “may not agree with all of ERSP's conclusions …  because we support your efforts to protect consumers we agree to accept ERSP's decision in its entirety and agree to modify our advertising as suggested.”

ERSP Recommends Emergent Health Modify, Discontinue Certain Advertising Claims for 'JDI MultiVitamin' - Marketer Voluntarily Modified Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Emergent Health Corp., modify or discontinue certain Internet advertising claims for the company’s  “JDI MultiVitamin,” promoted by the advertiser as designed to “increase adult stem cells.” The marketer voluntarily modified several claims at issue in ERSP’s inquiry.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to the attention of ERSP pursuant to an anonymous competitive challenge.

Claims at issue in ERSP’s review included:

• “It is designed to supply all of the micro nutrients needed to support life as well as increase adult stem cells.”
• “ Immune System Support, More Energy, More Stamina, Clearer Thinking, Maintain Health, Just Plain Feeling Better”
• “… may also help maintain existing telomere length by up to 5% according to recent studies of multi vitamins.”
• “The ingredients of the product have been thoroughly tested for safety and also studied for the effects of increasing adult stem cells, improving immune system support, decreasing inflammation and bettering mental acuity and mood as well as telomere support based upon structure and function.”
• “My grandmother has Alzheimer's, osteo, and heart problems. At her last doctor's visit he told her that her tests are better than they have been for over 20 years.” B.C.

JDI MultiVitamin is a dietary supplement containing a number of essential vitamins and minerals. According to the marketer, the supplement’s proprietary formula is also designed to “increase adult stem cells.”

At the outset of ERSP’s inquiry, the marketer asserted that it had voluntarily modified or discontinued certain of the claims at issue. While confirming that Emergent Health had implemented changes, ERSP noted in it decision that it remained concerned with several core claims. ERSP further noted that the advertiser did not provide ERSP with the results of testing on the JDI MultiVitamin formula, but instead relied on studies of the product’s ingredients.

Following its review, ERSP determined that the evidence in the record did not support claims that the use of the product would increase the number of adult stem cells, thereby improving immune system support, decreasing inflammation or bettering mental acuity and mood. ERSP recommended Emergent Health discontinue claims that the product can increase the number stem cells and/or provide specific disease protection.

ERSP also was concerned about statements that could be reasonably interpreted as unqualified superiority claims (e.g., “The most simple and cost effective…” and “the most advanced…”). Emergent Health informed ERSP that it has modified these claims to appear in future advertising in a non-comparative context.

Regarding the consumer testimonials at issue, ERSP noted that consumer endorsements themselves are not competent and reliable scientific evidence and a marketer should possess reliable substantiation – including, when appropriate, competent and reliable scientific evidence – to support such in the same manner the marketer would be required to do if it had made the representation directly. In the absence of data supporting the results consumers can typically expect, ERSP recommended that the marketer refrain from using consumer testimonials to communicate atypical product performance.

The company, in its marketer’s statement, said it “…agrees to accept ERSP's report as applicable and agrees to amend all statements in its advertising to meet the conclusion of the ERSP report. Likewise, the Company is willing to complete the process and take ERSP's recommendations into consideration in its future advertising.”

ERSP Reviews Advertising for Arthri-D3; Finds Marketer Could Support Certain Performance Claims

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Blue Vase Marketing modify or discontinue certain advertising claims for the company’s Arthri-D3 dietary supplement. ERSP determined that the company could support claims that Arthri-D3 can help relieve the pain osteoarthritis.

ERSP, which reviews core claims in direct-response advertising, examined broadcast and Internet advertising for the product and reviewed performance claims, comparative claims and claims made through testimonials.

ERSP noted in its decision that the marketer, prior to receipt of ERSP’s initial inquiry, had “voluntarily removed the testimonials ERSP identified” and would revise any future advertising in a manner that adheres to the Federal Trade Commission’s guidance regarding the use of endorsements and testimonials in advertising.

In addition, the marketer advised ERSP that it has also either modified or discontinued the following comparative and general performance claims:

• "Superior ingredients and manufacturing yield a superior supplement.” and “Arthri-D3™ is produced in the United States of America in a superior manufacturing facility that adheres to the highest quality standards."
• "What's not to like about better, faster, all-natural results?"; "…I’ve tried all the natural products out there, the glucosamines, the chondroitins, nothing seemed to work." [Jim Shriner, online video] 
• "Start feeling better today."

Arthri-D3 is a dietary supplement for joint and pain relief that combines N-Acetyl-Glucosamine (NAG) with vitamin D3 and several key plant extracts. The formula is marketed to support the structure and function of joints and the advertising is targeted to people suffering from symptoms of osteoarthritis and the degradation of joints, including articular cartilage and subchondral bone.

The marketer did not provide ERSP with testing on the product itself. Instead, the marketer relied on testing conducted on glucosamine, the product’s primary ingredient.

ERSP concluded that the marketer provided a reasonable basis for claims touting the joint health benefits of glucosamine and its role in relieving the pain of osteoarthritis, but recommended the marketer modify or discontinue claims that suggest consumers will derive an immediate benefit from use of the product.

ERSP determined that the marketer’s evidence was not sufficient to support the claim that Arthri-D3 provides effective pain relief for rheumatoid arthritis,

fibromyalgia or gout and recommended the market discontinue such claims in future advertising.

ERSP further recommended that the marketer discontinue its claim that Arthri-D3 can “re-build … cartilage.”

ERSP noted that the advertising at issue included statements suggesting that NAG is a superior form of glucosamine as compared to the other types of glucosamine commonly found in comparative products. However, in the absence of supporting evidence, ERSP cautioned Blue Vase about disseminating comparative efficacy claims about NAG versus glucosamine sulfate and glucosamine HCL.

Finally, ERSP addressed the omission of a clear and conspicuous disclosure that Jim Shriner, an expert endorser, was remunerated for his appearance in infomercial advertising. Although a super discloses that information at the start of the infomercials, the super is not repeated at any time during the 30-minute broadcast. ERSP recommended the advertiser repeat the disclosure throughout the program.

While the marketer took issue with certain of ERSP’s finding, the company said that it would “take ERSP’s recommendations under advisement for all current and future advertising.”

ERSP Reviews Advertising for Heart Factors Plus; Marketer discontinues claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Chamonix has provided adequate support for certain claims made in direct-response advertising for “Heart Factors Plus,” a dietary supplement intended for cardiovascular health. The marketer voluntarily discontinued several claims that were the subject of the ERSP inquiry.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to the attention of ERSP pursuant to its ongoing monitoring program.

ERSP reviewed broadcast and online advertising for Heart Factors Plus and identified several claims for review, including:

• “But did you know that Arginine can also improve your mood as well as your memory?”
• “…many customers notice a boost in their intimate relationships after just 1 day!”
• “…in just days you can feel the incredible health benefits.”
• “With Heart Factors Plus, it’s 100% natural so there’s no side effects as long as you take the recommended dosage.”
• “As a result, arginine can actually treat high cholesterol and high blood pressure and, essentially, help prevent heart disease.”
• “The miracle amino acid shown to help: normalize blood pressure levels, improve male sexual intimacy, [and] improve male sexual function.”
• \'In the spring, I was at 134/93, ON MEDICATION. Today, my blood pressure is 120/82, and I'm off the meds.” [John R, Hillsborough, NJ] 
• “The magic bullet for the cardiovascular system for its ability to produce Nitric Oxide, which helps lower blood pressure, lower cholesterol and prevent heart disease.” [Columbia University]

At the outset of the inquiry, the marketer indicated that it had voluntarily discontinued many of the performance and establishment claims at issue.

As support for the remaining performance and establishment claims, Chamonix submitted a number of studies regarding arginine, the primary ingredient in Heart Factors Plus. After reviewing the case record, ERSP agreed that the marketer provided a reasonable basis for claims that arginine “can meaningfully contribute to the maintenance of cardiovascular health.” However, ERSP recommended Chamonix refrain from making claims referencing the improvement of short-term memory, the treatment of specific conditions such as erectile dysfunction, and the amount of time in which the supplement can work.

Although it found the evidence supported claims that arginine can “normalize blood pressure levels, improve male sexual intimacy, [and] improve male sexual function,” ERSP recommended that the marketer modify or discontinue the other establishment claims that were the subject of the inquiry.

During the inquiry, Chamonix voluntarily removed one of the testimonials (“The magic bullet for the cardiovascular system for its ability to produce Nitric Oxide, which helps lower blood pressure, lower cholesterol and prevent heart disease”) in question. Since no reliable evidence was produced indicating that Heart Factors Plus will remove arterial plaque, ERSP recommended the marketer discontinue testimonials describing the elimination or reduction of specific health conditions.

The company, in its marketer’s statement, said, “Chamonix will make appropriate adjustments to its advertising for Heart Factors Plus consistent with ERSP’s recommendations.  We value and support industry self-regulation, and we welcome ERSP’s decision regarding advertising for Heart Factors Plus.”

ERSP Reviews Advertising for Nopalea; Recommends Marketer Modify, Discontinue Claims

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that TriVita, Inc., modify or discontinue certain claims made in direct response advertising for “Nopalea,” a dietary supplement made from cactus fruit juice.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to the attention of ERSP pursuant to its ongoing monitoring program.

ERSP reviewed broadcast and online advertising for Nopalea and reviewed the following core performance claims:  

• "Daily use helps your body: Reduce inflammation, Detoxify, Achieve optimal cellular health, [and] Protect against premature aging.”; “Reduce swelling in joints and muscles”
• "Scientific research shows that Betalains help to: Reduce the risk of blood clots... reduce bad cholesterol... protect cells from toxins... protect your liver.”
• “Finding: Nopalea promotes optimum cellular health, helps reduce inflammation, helps detoxify poisons, helps protect against premature aging, provides blood sugar stability and helps reduce inflammation.”
• “Nopalea delivers scientifically proven health benefits.” and “Nopalea harnesses the power of this desert superfruit and its belatains to bring you scientifically proven health benefits.”
• “Want even more reasons to drink Nopalea? Scientific research shows that Nopalea also helps the body to: Increase Energy, Boost the immune system, Protect against fluid retention, Neutralize free radicals”
• “Best of all, Nopalea helped my body reduce inflammation as shown on my C-Reactive Protein test. Prior, the score was 1.3, but since Nopalea, it is down to just barely over zero – it decreased one full point.”

As support for performance and establishment claims, TriVita submitted a number of scientific studies on Nopalea’s main ingredient, Opuntia ficus indica (Nopal cactus).

While ERSP did not dispute that the studies provided useful information about the primary ingredient in Nopalea, the evidence did not support express claims regarding specific health conditions. ERSP recommended the marketer modify or discontinue the performance claims at issue.

ERSP noted that there have been no clinical studies on the product and the evidence provided does not support claims that Nopalea will alleviate or eliminate specific health conditions. ERSP recommended the marketer discontinue testimonials describing specific health conditions. Further,  ERSP recommended that TriVita add a clear and conspicuous disclosure describing the relationship between TriVita and its “members.”

“The fact that the some of the consumer testimonials are made by people who receive commission on the sale of the product might materially affect the weight and credibility of the representation as interpreted by consumers and, as such, should be clearly and conspicuously disclosed in the advertising,” ERSP stated.

The company, in its marketer’s statement, noted that clinical trials of the product are underway. The company said it “…takes great care to truthfully and accurately advertise its products.  Although the Company certainly disagrees with certain conclusions of ERSP, it has and will continue to cooperate with ERSP and make appropriate modifications to its advertising.”

ERSP Advertising Week Summit

ERSP held its first Advertising Week Summit on October 6, 2011 at Lucille's Bar & Grill in NYC. 

The panelists provided guidance on how to use testimonials and endorsements in social media. Even with the proliferation of word-of-mouth marketing and social media, many of the ground rules for testimonials and disclosure haven't been set. With this in mind, a running theme throughout both panels was whether an organic conversation on a platform such as Facebook could become a testimonial/endorsement. User-generated content is becoming more and more popular, but there is little precedent regarding how this type of content is approached from a regulatory standpoint. Regardless, all of the panelists encouraged companies to monitor what affiliates and consumers are saying on social media about their products and to ensure that unrealistic claims are not being made.

The panelists also explained the key changed to the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising. The Guides were revised back in 2009 to more accurately reflect the use of "new media" in advertising. With the "Results not typical" safe harbor eliminated, the panelists explained different ways of approaching the disclosure of material connections and typical product performance.

ERSP found the panels to be very engaging and informative and would like to thank the panelists for leading the discussion. We hope you enjoyed the event!

ERSP Reviews Advertising for Springbak Springsoles; Marketer Discontinues, Modifies Certain Claims

New York, NY – Oct. 6, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that Springbak can support certain claims for the company’s “Springsoles.” The marketer agreed to voluntarily modify other claims as recommended by ERSP.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to ERSP’s attention pursuant to its ongoing monitoring program.

ERSP reviewed online and broadcast advertising for Springsoles and identified several claims for review, including:

·        “Gain 5.5% Longer Stride Length,” “Shorten Foot Plant Time," and “Quicker Stride Frequency”

·        “Springbak scientifically cushion your feet upon impact. The patented materials give you a spring effect that excels and pushes you up to run faster, jump higher, and with the molecular bonding, actually amplifies your strength and performance.” and “Guaranteed to help ease your feet and joint pain, improve your stability, and increase your athletic performance.”

·        “We got to the state championships for the first time without one injury and I know for sure it was Springbak.” and “We strength tested 21 of our track athletes. They were able to do 35% more clap push-ups wearing the Springbak® Springsoles, despite fatigue and the breakdown of lactic acid in their arms and shoulders from the first trial.” [Dave Houle]

·        “I was able to do just one repetition performing an overhead press with a 55 lb. dumbbell. After resting 3 minutes I pulled off the same 55 lb. dumbbell and promptly did eight overhead presses while using the Springbak® Springsoles.” [E.J. Cafaro]

As support for the performance claims at issue, Springbak submitted a variety of studies conducted by several college coaches. However, ERSP found many of the studies to be inadequate support for the claims as they were conducted on a small sample of subjects with little to no control parameters or statistical significance. Although the testing did provide a reasonable basis for the claim that consumers will “run faster,” ERSP recommended that Springbak discontinue health and safety (e.g., “…help ease your feet and joint pain”) and establishment claims.

A number of the testimonials featured in the advertising make several representative and qualified claims. Following a review of the evidence, ERSP determined that the information submitted by Springbak could not adequately support the claims in question and that the results stated in the testimonials were not demonstrated to be “typically expected by consumers.” Thus, ERSP recommended that the claims be modified or discontinued.

The company, in its marketer’s statement, said it “…feels ERSP has been extremely fair in its assessments and suggestions. The suggestions have been implemented on the Springbak website. We look forward to working with ERSP in the future.”

ERSP at ERA's D2C Conference in Las Vegas

ERSP Director Peter Marinello and NARC President Lee Peeler at the ERSP booth

ERSP attended ERA's D2C convention held in Las Vegas last week. It gave us a great opportunity to speak to DR marketers and advertising agencies about our role in the industry. We also had the chance to attend some of the panels and were a part of several key discussions regarding self-regulation and direct response.

ERSP Advertising Week Summit - 10/6/11

ERSP

 ADVERTISING WEEK SUMMIT

OCTOBER 6, 2011 | B.B. KING, NYC | FREE!

Social Media & Testimonials

With a plethora of new media channels – social media channels ‐ emerging at the speed of light, marketers are all working to utilize the tools at their disposal. As the digital and social media landscapes continue to evolve, so do the ways in which we are able to engage consumer audiences. While the FTC’s revised Guides on the Use of Endorsements and Testimonials in Advertising are relatively straightforward, marketers and bloggers still have many questions on what and how they should be communicating and sharing, and what representations necessitate clear and conspicuous disclosure.

To register, send an email to

Panelists include:

Jeffrey A. Greenbaum | Partner, Frankfurt Kurnit Klein & Selz PC

Thomas A. Cohn, Esq. | Venable LLP

Tom Chernaik | CEO, CMP.LY

Jeff Meltzer | Meltzer Media Productions

Tim Leake | Creative Director, Saatchi & Saatchi New York

• Introductory remarks by Lee Peeler, President, National Advertising Review Council

• Moderated by Peter Marinello, Director, Electronic Retailing Self-Regulation Program (ERSP)

When: Thursday, October 6, 2011 9:30AM – 11:30AM
Where: B.B. King Blues Club & Grill, 237 West 42 St. New York, NY 10036

ERSP Reviews Advertising for Stemplex: Marketer Voluntarily Discontinues, Modifies Claims

New York, NY –  August 15, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Simplexity Health modify marketing materials for the company’s “StemPlex” product to better inform consumers that its advertising claims are based on the results of studies done in laboratories or on animals, not on humans. The marketer has agreed to do so.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to the attention of ERSP pursuant to an anonymous competitive challenge.

ERSP reviewed online advertising for StemPlex, which claims to promote stem cell growth, and identified several claims for review, including:

·        “70% increase in adult stem cell production”

·        “Provide micronutrition that enables stem cells to flourish.”

·        “Protect existing stem cells and nervous system cells from the harmful effects of free radicals and oxidative stress.”

·        “Enhances survival of nervous system cells by up to 55%”

·        “…the increase in stem cell production gained from using StemPlex is far greater than the increase that occurs through use of the ingredients individually.”

·        “All of the ingredients in this exceptional formula have been shown to increase the proliferation of adult stem cells in vitro (in a test tube); when they are combined, the increase is even greater,” and “Increases the growth of adult stem cells, as shown in in vitro laboratory studies.”

During the course of ERSP’s review, Simplexity voluntarily modified certain claims, adding the terms “in vitro,” “in vivo,” and “animal studies” where appropriate.

However, as ERSP noted in its decision, “it is imperative that advertisers in this product category not simply be judicious in communicating accurate and non-misleading messages to consumers, but also be cognizant of any additional information they provide to consumers.”

ERSP recommended that the marketer provide a link to the studies that form the basis of support for its claims to provide “the necessary clarity for consumers in recognizing the limitations of the resulting data.”

Simplexity Health informed ERSP that it had removed some of the testimonials that were subject of the original inquiry; however, ERSP noted that a section (“Voices”) on Simplexity Health’s site included consumer statements that create expectations regarding product performance. ERSP concluded that the evidence submitted does not support these claims and recommended the marketer modify the “Voices” section of its site to remove testimonials that speak directly to product performance.

The company, in its marketer’s statement, said it “...will add the recommended links to the full text versions of the published StemPlex research reports that support our performance claims in our online advertising so there is no possibility the claims could be potentially misinterpreted. Additionally, Simplexity will modify or remove those testimonials that include claims that are not directly supported by the scientific data.”

ERSP Finds DR-Ho’s Can Support Certain Claims for ‘Slimmies’ - Recommends Marketer Modify Certain Claims

New York, NY – August 10, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that clinical studies on a key ingredient – LuraLean – provide adequate support for performance claims made by DR-Ho’s for “Slimmies Weight Loss Chocolates.”  The marketer agreed to voluntarily modify other claims as recommended by ERSP.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to ERSP’s attention pursuant to its ongoing monitoring program.

ERSP reviewed online advertising for Slimmies, and identified several claims for review, including:

Performance Claims

·        “SLIMMIES weight loss chocolates will gently expand in your stomach to help curb your appetite and cravings to help you prevent from over-eating.”

·        “SLIMMIES’ active ingredient will help give your metabolism the boost it needs by cleaning the build up of triglycerides, undigested food and fats from your digestive system.”

·        “It’s natural and safe.”

·        “No more diets and depriving yourself, just eat sensible and remember your Slimmies.”

Establishment Claims

·        “SLIMMIES Weight Loss Chocolates contain a breakthrough active ingredient that is clinically shown to help absorb the fats from the foods you eat.  It helps bind to the oils, fats and grease to help reduce your calorie absorption.”

·        “In a study conducted by the University of Connecticut, participants were provided with either Slimmies’ Proprietary Ingredient or a Placebo.  Compared to their baseline weights, participants who took Slimmies’ Proprietary Ingredient lost on average 4.9 lbs in just 4 weeks. Comparatively, those who took the Placebo only lost an average of 0.4 lbs.”

·        “Clinically proven active ingredient formulated with a delicious mouth watering chocolate that will help reduce fat absorption, control you appetite, and help boost your metabolism…”

·        “Slimmies’ patented ingredient is backed by clinical studies showing safe, consistent weight loss.”

As support for performance claims, DR-Ho’s submitted various studies relating to LuraLean, a form of glucomannan, and its effect on feelings of fullness and satiety. The marketer explained that glucomannan is a water-soluble dietary fiber derived from the konjac root. These studies demonstrated that participants who consumed LuraLean prior to meals were able to achieve greater weight loss than while on a control treatment. Other studies submitted showed that LuraLean effectively reduced glucose levels.

Regarding the claim that Slimmies can absorb fat, DR-Ho’s informed ERSP that it will modify the language to more accurately reflect LuraLean’s effect on metabolic activity.

ERSP noted in its decision that the marketer had made a concerted effort to limit claims to appetite suppression and caloric absorption while clearly noting the clinical evidence is applicable to the active ingredient LuraLean, rather than Slimmies itself.

The company, in its advertiser’s statement, said it “…greatly appreciates the opportunity to participate in the Electronic Retailing Self-Regulation Program and is pleased that ERSP determined that scientific evidence substantiated its core marketing claims that the studies on the key ingredient in the Slimmies - LuraLean - helps reduce appetite and assists in weight loss.”

ERSP Finds Murad Can Support Certain Claims for Acne Complex; Recommends Marketer Modify, Discontinue Certain Claims

New York, NY – July 12, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that Murad, Inc., provided adequate support for certain performance claims made in direct-response advertising for Acne Complex, a product marketed by the company, but recommended the marketer modify certain claims.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to ERSP’s attention through an anonymous challenge.

ERSP reviewed broadcast and online advertising for Acne Complex, and identified several claims for review, including:

• “Clear skin is as easy as 1, 2, 3 - and it only takes four weeks!” and “Get clear in 4 weeks. Guaranteed.”
• “See a difference in just 3 days.”
• “There are also a number of skin conditions that resemble acne such as eczema, perioral dermatitis and folliculitis. While they may not involve all of the factors that cause real acne, they do have one thing in common — inflammation. The good news is that Murad Acne products address ALL of the factors of acne and skin breakouts, reducing cell build-up, excess oil and inflammation.”
• "In a clinical study, 92% of users experienced a reduction of acne breakouts in just 3 days.”
• “...I have used the acne product for 3 days and my face is already clear!" [Brandi, MI]
• “After less than 1 week, my acne had disappeared and has not returned since!" [Karin Maki, MI]
• “Acne Complex works because… it does NOT contain Benzoyl Peroxide.”

ERSP determined that the marketer provided sufficient evidence to support the claim that “In a clinical study, 92% of users experienced a reduction of acne breakouts in just 3 days.”

However, ERSP remained concerned about the claim, “Get Clear in 4 weeks.” The marketer based its claim on two marketer-sponsored  4-week studies in which acne lesion counts were reduced, and a twelve week study referenced in the 1985 Tentative Monograph. The Food and Drug Administration, in its monograph regarding over-the-counter acne treatments, has explicitly outlined the language that may be used when referencing the efficacy of a product. ERSP noted it may not have been the intent of the FDA to permit a claim of “Get Clear” based upon a showing of reduced lesion counts after just four weeks. The FDA states, “Any treatment that continues to reduce lesion counts beyond 4 weeks is actually preventing the development of new acne.” Accordingly, ERSP recommended the marketer modify this claim to use the language found in the FDA monograph which, in part, includes the wording “clears,”  “clears up,” or “helps clear.”

Regarding claims referencing other skin conditions, ERSP found that Murad had adequately modified its advertising to limit its efficacy claims to the reduction of redness and inflammation associated with other conditions. Murad also voluntarily removed two of the related claims from its Website.

The marketer removed two of the testimonials that were the subject of the inquiry. In addition, the company included a disclosure on its testimonials page referencing testing showing that Acne Complex reduces acne lesion counts after four weeks.

ERSP remained concerned about comparative claims (i.e., “Acne Complex is the leading clinical skin care brand that is actually good for your skin” and “Acne Complex works because… it does NOT contain Benzoyl Peroxide”) that could be understood to mean that Acne Complex is more effective than products that contain benzoyl peroxide. ERSP recommended the marketer modify or discontinue such comparative claims until it can provide evidence to support each claim.  However, ERSP found Murad’s comparative claims appropriate when the distinction between salicylic acid and benzoyl peroxide is based purely on reduced irritation or redness.

The company, in its marketer’s statement, said, “Murad appreciates the careful review undertaken by ERSP and agrees to seriously consider ERSP’s recommendations in all future advertising and is voluntarily making the changes recommended by ERSP and outlined in this decision. Murad supports ERSP and encourages others in the advertising industry to support the self-regulatory process.”

Vascular Health Specialists Participates in ERSP Forum: ERSP Finds Support for Certain Claims; Recommends Marketer Modify Testimonials

New York, NY – July 7 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that Vascular Health Specialists (VHS) provided adequate support for performance claims made in direct-response advertising for Rosadyn.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to the attention of ERSP pursuant to an anonymous consumer complaint.

ERSP reviewed online advertising for Rosadyn, and identified several claims for review, including:

Performance Claims

• “Rosadyn is an advanced non-prescription oral nutraceutical that targets facial redness, facial flushing, skin inflammation, and ocular rosacea.”
• “The Vascular Support Blend has been shown to repair damaged skin vessel walls and protect blood vessels from free radical and inflammatory damage”
• “Individually, these ingredients have been shown to mitigate inflammation, inhibit free radical formation, reduce skin redness and thicken and moisturize the skin from the inside-out.”
• “The Hypothalamus Support Blend includes ingredients which have been shown to lower stress and anxiety responses in the brain, resulting in a naturally calming effect that produces relaxation without drowsiness.”

ERSP was also concerned about the omission of material information in testimonials regarding the generally expected product performance.

At the outset of the inquiry, VHS informed ERSP that many of the claims that were subject of the initial inquiry were part of a test marketing website that is no longer available. As such, ERSP reviewed the four remaining nationally disseminated claims.

Rosadyn, a nutraceutical that targets facial redness, facial flushing, skin inflammation, and ocular rosacea, includes a proprietary formula containing a variety of ingredients. The marketer provided ERSP with more than fifty studies that it asserted would demonstrate the efficacy of individual ingredients found in Rosadyn. Following its review of the evidence, ERSP determined that VHS provided adequate support for its performance claims.

VHS also provided ERSP with a copy of a pilot study consisting of an online survey of 55 participants who were provided with a one-month supply of Rosadyn. The results indicated that many participants saw a decrease in rosacea-related symptoms and 83% believed the product met or exceeded expectations. A follow-up survey showed continued improvement through the six-month mark.

ERSP was concerned, however, that testimonials at the Rosadyn site could create  unsupported consumer expectations as to the performance capability of Rosadyn.

ERSP noted in its decision that, while it is not “questioning the authenticity of the testimonials, it cannot be ignored that the representations can be considered more than general or anecdotal and are not supported by virtue of subjective responses from a one-month online consumer usage study or by individual ingredient evidence.”

ERSP recommended that the marketer modify the testimonials page to ensure that testimonial claims are in compliance with the FTC’s Guides on the Use of Endorsements and Testimonials in Advertising and do not create unsupported product performance expectations.

The company, in its marketer’s statement, said, “[VHS is] heartened by ERSP’s conclusion that these studies adequately supported the four key general performance claims that remain part of Rosadyn’s nationally disseminated marketing material … we are nonetheless exploring ways to best incorporate ERSP’s recommendation into the testimonial section.”

PR: ERSP Finds Emson, Inc. Can Support Certain Claims for Ab Rocket Twister, Recommends Marketer Discontinue, Modify Certain Claims

New York, NY – June 28, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that Emson, Inc., has provided adequate support for certain claims made in direct-response advertising for the Ab Rocket Twister. The marketer voluntarily discontinued several other claims that were the subject of the ERSP inquiry.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to the attention of ERSP pursuant to its ongoing self-monitoring program.

ERSP reviewed broadcast and online advertising for the Ab Rocket Twister, and identified several claims for review, including:

Performance Claims  

• “Lose up to 2 inches off your waist in just 12 days guaranteed or your money back,” and “…in as little as 5 minutes a day with the Ab Rocket Twister, you’re on your way to tighter, sexier abs guaranteed.”
• “Blast away those unwanted love handles for the most complete ab workout ever.” 
• “5 minutes a day for the hottest looking abs you’ve ever had.” 
• “With the Ab Rocket Twister, now anyone can go from flab to fab. It’s never been faster or easier.”

Establishment Claims 

• “When compared to regular floor crunches, the Ab Rocket actually increases abdominal activity by 107%.  At the same time, the Ab Rocket decreases neck activity by 59%.”
• “When doing a standard Pilates move using the Ab Rocket, compared to doing the same Pilates move without the Ab Rocket, external oblique activity targeting those love handles increases 233% with a 61% reduction in neck activity.”
• “University tests prove, when compared to traditional crunches, the Ab Rocket increases muscle activity more than 100%; that’s double the muscle activity for ripped, toned, washboard abs in half the time.”

Consumer/Testimonials

• “Lost 2 ½ inches off waist in 6 weeks.” 
• “I’ve lost over 50 pounds and 21 inches.”

According to the advertiser, the Ab Rocket Twister was designed as an abdominal workout machine to tone and strengthen the user’s mid-section, providing the benefits of sit-ups and crunches without the pain. The advertiser noted that the machine is intended for use as one component of the Ab Rocket Twister “System” which also includes three resistance bands, exercises DVDs, and a meal plan.

At the outset of the inquiry, Emson informed ERSP it would discontinue claims citing specific percentage increases in muscle activity and modify consumer testimonial disclosures to include the generally expected results.

Following the evidence in the record, ERSP determined that the advertising at issue could be perceived as communicating the message that results were based on use of the Ab Rocket Twister alone, rather than in conjunction with a meal plan and exercise DVDs. ERSP recommended that Emson modify its advertising to clearly and conspicuously communicate that the loss of weight and inches depicted in the advertising at issue resulted from the use of all program components.

ERSP determined that claims that the Ab Rocket Twister is the “fastest” and “easiest” way to obtain rock hard abs were not puffery, but were meaningful claims to consumers and should be discontinued.

Emson, in its marketer’s statement, said it “appreciates the opportunity to participate in the ERSP self-regulatory process and is committed to ensuring that its advertising is truthful and substantiated … Emson will defer to ERSP’s decision and will modify its current advertising in response to ERSP’s concerns.”