ERSP Review Advertising for Omega XL: ERSP Finds Support for Certain Claims; Recommends Marketer Modify Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Great HealthWorks (GHW) has provided adequate support for certain claims made in direct-response advertising for “Omega XL,” a patented fish-oil dietary supplement. The marketer voluntarily discontinued several claims that were the subject of the 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 the attention of ERSP pursuant to its ongoing monitoring program.

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

• “Live a life that's healthy with the anti-inflammatory that's 100 times more effective in treating inflammation.”
• “Omega XL Benefits: Inflammation and Pain, Joint Health & Joint Mobility, Heart Health, Healthy Cholesterol, Blood Pressure Support, Healthy Brain Function, Respiratory Health, Energy and Endurance.”
• “Compared to Omega-3 from fish or plants, extensive research on Omega XL has proven it to be more effective in treating inflammation that causes joint pain.”
• “The powerful oil extract in Omega XL is made under a patent protected process and its effects are supported by years of research and studies -- safe and effective with no known side effects.”
• “This diverse combination of essential fatty acids is what makes Omega XL so unique and is why over 25 years of multiple clinical studies confirms that Omega XL is the Most Powerful, Natural Anti-Inflammatory on Earth!”
• “Omega XL is MUCH smaller yet MORE potent than regular fish oil.”
• “In about 3 weeks after taking Omega XL I could feel the results.”

As support for the health benefits of Omega XL, GHW submitted a number of studies on PCSO-524, a patented oil and the primary ingredient found in Omega XL.

After reviewing the case record, ERSP agreed that the marketer provided a reasonable basis for some of the health benefits of the product regarding inflammation and pain, joint health and mobility, and the maintenance of respiratory health.

However, ERSP recommended GHW discontinue claims concerning cholesterol, blood pressure, and brain function. Further, ERSP recommended that the marketer modify its claim relating to heart health to include information regarding the daily maximum EPA and DHA dosages as outlined by the Food and Drug Administration. GHW also informed ERSP that it has voluntarily discontinued claims relating to energy and endurance.

In reviewing the establishment claims, ERSP recommended that GHW modify certain claims to include language pertaining to the suspected risks of the consumption of EPA and DHA in excess of 3 grams per day.

Although the marketer provided ERSP with comparisons of Omega XL with other types of oil and prescription medicines, ERSP determined that the comparative data could not support the claim that “… Omega XL is the Most Powerful, Natural Anti-Inflammatory on Earth!”

Similarly, although the marketer provided information on the effect of Omega XL on joint pain and inflammation, ERSP determined that the marketer’s representation that “extensive research on Omega XL has proven it to be more effective in treating inflammation that causes joint pain” could be construed as an establishment claim. ERSP recommended the claim be modified.

ERSP found the marketer adequately supported claims that “Omega XL is the ONLY product containing a total of 30 fatty acids” and that it “…is MUCH smaller yet MORE potent than regular fish oil.”

GHW indicated to ERSP that it had voluntarily discontinued the consumer testimonials at issue.

The company, in its marketer’s statement, said, “It welcomes and appreciates ERSP’s thorough and thoughtful review of advertising for Omega XL. The Company is committed to ensuring that its advertising is truthful, accurate, and substantiated. We have reviewed ERSP’s decision regarding direct response advertising for Omega XL and we will take your recommendations into consideration in future advertising.”

ERSP Finds Sleeping Well, LLC Can Support Certain Claims for ZQuiet: Recommends Marketer Modify Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Sleeping Well, LLC has provided adequate support for certain performance claims made in its direct-response advertising for ZQuiet, a device intended to treat nighttime snoring.

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 ZQuiet, and identified several claims for review, including:

• “No Strips, no drugs, no sprays - just put it in and the snoring is gone!”
• “Works immediately!”
• “FDA Cleared to treat snoring. In order to obtain FDA Clearance, ZQuiet had to prove not only that the material is safe - but also that the product effectively achieves its intended purpose.”
• “Decades of research have proven that the technology behind ZQuiet solves snoring for over 90% of people that use it…” and “ZQuiet uses the same method that dentists have used for over 25 years to cure over 90% of their patients’ snoring issues – but ZQuiet is engineered to work right out of the case without the high cost and visits to the dentist."
• “ZQuiet is one of the few anti-snoring treatments that actually works…”
• “Dentist Designed and Recommended!”

During the pendency of the inquiry, the marketer informed ERSP that it would voluntarily add a disclosure to its website to further qualify certain claims.

Sleeping Well submitted its FDA 510(k) pre-clearance for ZQuiet in order to support the claim that the product is FDA-cleared.

Although the marketer adequately supported most of the performance claims at issue, ERSP remained concerned about the message communicated by the claim “No Strips, no drugs, no sprays - just put it in and the snoring is gone!” ERSP determined that it would be reasonable for a consumer to interpret this claim to mean snoring will be eliminated. While ERSP agreed that the evidence indicates that the use of ZQuiet can improve snoring conditions, it was not convinced that the cessation of snoring can be deemed as typical product performance. ERSP recommended the marketer modify the claim.

As support for the establishment claim, Sleeping Well provided ERSP with several studies on mandibular advancement devices. Based upon its review of the evidence, ERSP concluded that the establishment claim was adequately supported.

The marketer represented to ERSP that it was no longer disseminating the claim “Dentist Designed and Recommended!” in its advertised context. Sleeping Well also voluntarily discontinued the comparative claim at issue (i.e., “ZQuiet is one of the few anti-snoring treatments that actually works…”).

The company, in its marketer’s statement, said, “Sleeping Well is committed to ensuring that its advertising is truthful, accurate, and substantiated. Sleeping Well values and supports industry self-regulation, and we welcome the ERSP's decision regarding advertising for Sleeping Well's products.”

Ad Age Features Direct-Response Industry and the Need for Self-Regulation

Today's Ad Age article, "But Wait, There's More! Gaining Trust in the Direct-Response Realm" by Julie Coons (ERA President and CEO) highlights ERSP's role in the growing need for self-regulation of direct response marketing.

According to Coons, "ERSP is good for our customers. It monitors the marketplace, holds advertisers responsible for their claims and practices, and tracks emerging issues and trends."

April 23, 2012 print edition of Advertising Age

This edition also announces the re-branding of the Advertising Self-Regulatory Council (ASRC), formerly known as the National Advertising Review Council (NARC).

ERA's SupERAchievers Newsletter Highlights the Benefits of Self-Regulation

Today's ERA SupERAchievers newsletter featured a nice write-up on Jeff Meltzer, of Meltzer Media, and direct-response self-regulation. In particular, the article describes Mr. Meltzer’s career path in what he describes as the ‘Wild Wild West’ of direct response, and the steps taken to form the ERA and ERSP.

Mr. Meltzer applauds ERSP’s self-regulatory efforts, and suggests that “having programs like ERSP not only keeps our industry clean, but also keeps consumer confidence up.”

ERSP Travels to Utah to Meet with Coaching and Mentoring Companies and the Local Better Business Bureau

As part of ERSP’s new Coaching and Mentoring Pilot Program, Peter and Leanne traveled out to Utah to meet with two participating coaching and mentoring companies, Professional Marketing International (“PMI”) and Prosper, Inc. On Thursday, 3/29, they were given a tour of each company’s respective headquarters, which include their telemarketing sales floors. The purpose of the tours was to gain a better understanding of the telesales process and to learn more about the coaching and mentoring industry. In addition, the visits gave Peter and Leanne an opportunity to meet with individuals in the respective companies who are responsible for the sales and advertising departments.

Prosper, Inc (Provo, UT)

Professional Marketing International (Lehi, UT)

In addition to the company tours, on Friday, 3/30, Peter and Leanne attended an open house event where Peter gave a presentation to other coaching and mentoring companies who are potential Pilot Program participants. The presentation highlighted the advertising self-regulatory process, including the history of advertising self-regulation. It featured a detailed explanation of ERSP procedures, typical claims reviewed by ERSP, and the effect ERSP has had on the direct response advertising industry. In addition, the presentation explained the Coaching and Mentoring Pilot Program. In addition to ERSP, the Utah Deputy District Attorney, John Swallow, presented, along with representatives from the ERA.

ERSP & ERA

Finally, after the open house event on Friday, Peter and Leanne visited Jane Driggs and her team at the Better Business Bureau of Utah. They participated in an informal round-table discussion with the BBB of Utah team about the self-regulatory forum, including background information on NARC, ERSP, and the new Coaching and Mentoring Pilot Program. 

Better Business Bureau of Utah (Salt Lake City, UT)

ERSP Finds Syneron Can Support Certain Claims for Tanda Zap; Recommends Marketer Modify, Discontinue Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Syneron Beauty provided adequate support for certain performance claims made in its direct-response advertising for Tanda Zap, 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 online advertising for Tanda Zap, and identified several claims for review, including:

• “Clears individual acne blemishes fast.”
• “No pain. No irritation. No dryness. And best of all no pimple.”
• “Clears existing breakouts, Prevents future outbreaks, Improves overall skin condition, Safe for all skin types, No irritation, dryness or redness.”
• “The Tanda Zap technology is gentle enough for all skin types and tones. There is no risk of burning, no pain, no dryness, no redness, no irritation, and no bleaching that can be experienced like with other types of treatments.”
• “Tända Zap - Official Site - FDA Approved - Dr Recommended”
• “Clinically proven to clear or fade acne blemishes within 24 hours.”

During the pendency of the inquiry, the marketer informed ERSP that it has discontinued all references to Tanda Zap being “FDA approved.” Syneron also voluntarily removed all consumer testimonials which reference Tanda Zap as being clinically proven to clear or fade blemishes in 24 hours.

To support its claim that Tanda Zap “clears individual acne blemishes fast,” Syneron presented ERSP with a study that demonstrated moderately raised lesions were cleared or significantly improved within 24 hours. The marketer also provided ERSP with several studies on blue light technology and a device that is materially similar to Tanda Zap. After a review of these studies, ERSP concluded that Syneron provided adequate support for claims that Tanda Zap can clear acne fast.

Regarding claims that use of the Tanda Zap results in no pain, irritation, or dryness, ERSP found that Syneron adequately supported the claim by providing ERSP with studies in which no side effects were reported by participants. The marketer was also able to substantiate its claim that Tanda Zap clears existing breakouts and prevents future breakouts.

ERSP remained concerned about the claim that Tanda Zap is “gentle enough for all skin types and tones.” After reviewing several of the studies submitted, it appeared to ERSP that the studies did not include subjects of all skin types. Additionally, ERSP noted that the claim could be interpreted as being inclusive of severe acne sufferers when that is not the case. ERSP recommended the marketer discontinue the claim or modify it in a way that accurately reflects the submitted studies.

Similarly, with respect to the “clinically proven” claim, ERSP found it to be disseminated in an overly broad context in which consumers could reasonably interpret the claim to be inclusive of severe acne conditions. ERSP recommended that product efficacy claims be accompanied by a clear and conspicuous disclosure indicating that the representations are based on testing of subjects with mild to moderate acne.

The company, in its marketer’s statement, said, “Syneron Beauty appreciates ERSP’s thoughtful review of the clinical studies and underlying science supporting the efficacy of the Tanda Zap product by ERSP ... Syneron Beauty accepts ERSP’s recommendations and will take account of the decision in crafting future consumer communications.”