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.”

Mobile Marketing Law Roundtable

ERSP recently attended a mobile marketing law roundtable hosted by Olshan Grundman Frome Rosenzweig and Wolosky LLP and sponsored by Moritt Hock Hamroff LLP and The Lustigman Firm.

Here are some of the highlights and key takeaways from the discussion:

• A link to the privacy policy should be included on all pages of a website. Companies should also provide a truncated version of its privacy policy that is can be easily understood by consumers.
• Text-based marketing is highly regulated in the U.S. - out of the 900,000 short codes (five to six digit numbers), less than 3,500 have been registered. The reason? Many carriers require a double opt-in for text messaging-based promotions. For example, a consumer signs up to receive news via text on Company A's website. After clicking submit, the consumer receives a text message from Company A requiring the consumer to reply to the text if they're sure they want to sign up. So not only do they sign up online, but the consumer has to confirm via text -- this is the second opt-in. 
• Getting more into the technology side of things, patent issues are becoming problematic for the industry. With multi-million (and billion) dollar companies duking it out in the courts over who's got which patent, consumers are likely to get hit with more fees and tech development could be stymied.
• By 2012, one out of every two phones will be a smartphone.
• User-generated content is difficult to monitor and regulate. Is there no good way to mitigate risk?
• Many of the issues facing mobile marketing are the same as those that cropped up when the internet became popular. How secure is my data? How fast is the page loading?
• International laws regarding the regulation of mobile marketing are very different and make it difficult for companies to promote worldwide campaigns.

Managing Compliance Risk in Social Media

ERSP attended Financial Services & Social Media – Strategies and Tools for Managing Compliance Risk, hosted by the Law Office of Pryor Cashman LLP and which featured Tom Chernaik, CEO of CMP.LY and Robert J. deBrauwere, Partner at Pryor Cashman LLP.

Highlighted throughout the discussion was the fact that there are no "best practices" regarding social media just yet; as an emerging medium, there are only "good practices." Of particular concern among those who market through social media (or even those who simply maintain pages), is the permanence and perceived anonymity of the social media posts. What marketers need to understand is that whatever is posted online is there to stay. Even if it's been deleted, there's always a chance someone has already seen it, and all it takes is for one person to document it or take a screenshot and your post has gone viral before you know it.

Mr. Chernaik and Mr. deBrauwere touched briefly upon the importance of monitoring employees' social media usage and encouraged companies to make clear distinctions between those permitted and not permitted to post via social media. They recommended drafting separate policies and having employees agree to them before engaging in social media.

The main takeaway from the event something Mr. deBrauwere focused on -- "Don't be stupid." Just using common sense when posting via social media can go a long way in making sure the company or advertising claims are not misrepresented online.

PR: ERSP Reviews Advertising for Bosom Max; Marketer Fails to Provide Sufficient Evidence for Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Total Media Market has not provided adequate support for performance and establishment claims made in direct response advertising for Bosom Max.

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.

Claims at issue in the initial inquiry included:

• “The electrostatic vibrations of the BOSOM MAX brassiere stimulate breast tissues, help increase the circulation of blood & lymphatic fluid, and increase muscle mass to lift up your breasts and enlarge their size!”
• “Those vibrations also generate contractions of the pectoral muscles, increasing muscle mass to firm up and lift sagging breasts, and increasing their size.”
• “…results are quick and permanent.”
• “Proven with Clinical Studies!”
• “With its high concentration of phytoestrogens, the Bosom Max cream helps to increase the elasticity and firmness of breast tissues. Those same phytoestrogens can also help reduce the effects of menopause, and may even help to protect against breast cancer.”
• "Specifically formulated with natural ingredients of potent nourishing and revitalizing qualities, FirmMax is the ideal solution to firm up, lift, and restore a more youthful appearance to yours breasts and gluts.”
• “Aside from the innovative brassiere, the BOSOM MAX capsules supply the breasts with essential nutrients needed for proper growth, and the BOSOM MAX cream helps to increase elasticity of the skin to avoid stretch marks during the breast enhancement process.”
• "But with Bosom Max I increased in size from a 34-B to a 34-D!” [Consumer Testimonial]

At the outset of the inquiry, Total Media Market removed the claim that Bosom Max was “featured on” news programs and in magazines, and modified the statement on the Bosom Max website. The marketer also provided evidence to support the claim that “Scientists in Asia studied the reduction of tumors and lumps in women with electrostatic vibrations, and discovered that massages with low-frecuency [sic] stimulation and vibrations to the breasts also produced as a result surprising increase in the size and firmness of breasts in women who wore the vibrations-producing brassiere for a few days.”

Although the marketer provided two studies of a device that simulated the Bosom Max brassiere, ERSP determined that the testing reports submitted by Total Media Market were not sufficient to support claims that the product is clinically proven to perform.  In light of the fact that the marketer failed to submit evidence to ERSP that would demonstrate a reasonable basis for the performance and establishment claims communicated by the advertising, ERSP recommended that the marketer modify or discontinue almost of the all performance and establishment claims in its advertising. ERSP also recommended that the marketer discontinue consumer testimonial claims communicating a specific increase in breast size.

ERSP forwarded a copy of its determination to the marketer requesting a statement as to whether Total Media Market agreed to discontinue the advertising claims that were the subject of the self-regulatory inquiry; however, the marketer did not respond to ERSP’s request for a Marketer’s Statement. Accordingly, this matter will be referred to the appropriate governmental agencies for review and possible law enforcement action pursuant to section 3.1(D) of the Electronic Retailing Self Regulation Program Policy & Procedures.