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.”