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Tuesday, December 23, 2014

ERSP Recommends Premier Care in Bathing Modify, Discontinue Certain Claims for Its Walk-In Baths


The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Premier Care in Bathing (“PCIB”) modify or discontinue certain advertising claims for its walk-in bathtubs.

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 a competitive challenge filed by Safe Step Walk-In Tub Co.

ERSP reviewed broadcast, print, and online advertising claims for PCIB, including:
  • “In fact, while other manufacturers use harsh water jets that can carry bacteria and damage or bruise your skin..."
  • “America’s leader in Walk-In Tubs"
  • “The best selling walk-in bath in America.”
The challenger also expressed concerns regarding the lack of a clear and conspicuous disclosure detailing the financing offer and the claim that the offer is a special or limited time offer. 

Following its review, ERSP found that the PCIB did not provide adequate substantiation for the claim that “… other manufacturers use harsh water jets that can carry bacteria and damage or bruise your skin...” and recommended that the marketer either discontinue or modify the claim to avoid the possibility that consumers would interpret the claim as a reference to all competitors in the marketplace.

There was no dispute, ERSP noted, that PCIB is the oldest walk-in bath tub company in the industry and the first company to offer walk-in baths to US consumers. However, ERSP found that the marketer’s evidence did not support the claims “America’s leader in Walk-In Tubs” and “The best selling walk-in bath in America.”

ERSP said nothing in its decision precludes the marketer from making a claim that it is an industry leader – making it clear, for example, that the claim is based upon PCIB’s history in the product category and does not imply the claim is based on current sales data.

ERSP also determined that the marketer’s revised “$150 Per Month” financing offer appropriately disclosed important material information, but remained concerned that the disclosure was not adequately clear and conspicuous.

ERSP found that the marketer’s “special offer” claim was appropriately presented, but recommended that because the period of availability of a “limited time” offer is material to consumers, such information should be disclosed conspicuously in the advertising.

The company, in its marketer’s statement, said, “… PCIB appreciates and respects the self-regulatory process, is committed to truthful and accurate advertising, and will adhere to ERSP's recommendations in future advertising.”

Monday, December 15, 2014

ERSP Refers Advertising for Plymouth Direct’s ‘BeActive’ Brace to FTC, FDA


The Electronic Retailing Self-Regulation Program (ERSP) has announced it will refer direct-response advertising for the “BeActive Brace,” marketed by Plymouth Direct Inc., to the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) after the marketer failed to agree to comply with ERSP’s recommendations to modify or discontinue certain claims.

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 an anonymous competitive challenge. 

Claims at issue in the initial inquiry included:
  •  “The point specific pressure brace for fast effective sciatic back pain relief."
  • "Relieves tension up the sciatic nerve with firm trigger point acupressure."
  • “Reduces both short term and chronic sciatic back pain.”
  • "Helping you live pain free & enjoy being active again.”
  • “You need BeActive, the revolutionary new acupressure system that instantly helps ease discomfort in your lower back, buttocks, and legs."
  • "You'll instantly begin experiencing relief."
  • "Back pain often radiates from the lower back to the lower extremities, but apply BeActive to the trigger point on the calf muscle to instantly relieve pain."
  • "The secret is the acupoint pressure pad that gently compresses, alleviating pain at the sciatic nerve and lower back for instant relief."
ERSP determined that the evidence in the case record did not support claims indicating that the product would be effective in providing relief from all sciatica conditions, particularly those that originate in the upper extremities, and sciatica pain that is referred from the two trigger points in the soleus muscle that are not stimulated by the BeActive brace.

ERSP also recommended that the claim that use of the product will result in consumers being “pain free” was not adequately substantiated and that the marketer should discontinue the claim “Expensive pain-relievers wear off, but BeActive is always there to deliver the pain relief you need” and the accompanying visual in future advertising for BeActive. 

The company, in its marketer’s statement, did not indicate that it would agree to modify or discontinue the advertising as recommended by ERSP. Therefore, pursuant to section 3.1(D) of the ERSP Policy and Procedures, this matter has been referred to the FDA and FTC.

Thursday, November 20, 2014

ERSP Recommends Quest Nutrition Modify, Discontinue Certain Claims for Quest Protein Bars


The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Quest Nutrition modify or discontinue certain advertising claims for Quest Protein Bars.

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 Quest Protein Bars, including:
  • “And the last thing you want to do is throw that hard work away by eating other nutrition bars or meal replacement bars that are little more than thinly disguised candy.”
  • “As most people know, if you want to stay healthy, lose fat or build LEAN muscle, you must control your carb intake. That's why we've worked so hard to create Quest Bars with very few active carbs.”
  • “Quest Bars will also curb your hunger more effectively than most foods. Because they are packed with fiber, you'll find that they are very filling. The natural fats and proteins will further keep your appetite satisfied for hours - making sure that you can easily stay away from eating higher calorie, less nutritious fare.”
  • “Uniqueness” and “one-of-a-kind” claims
At the outset of the inquiry, the marketer informed ERSP that several of the advertising claims that were the subject of the inquiry are currently the subject of pending litigation. As such, ERSP agreed that it was not appropriate to review those claims.

Moreover, the marketer voluntarily discontinued several claims, including testimonials at issue in ERSP’s inquiry.   

Regarding the claim “And the last thing you want to do is throw that hard work away by eating other nutrition bars or meal replacement bars that are little more than thinly disguised candy,” ERSP recommended that the claim be modified in future advertising in a way that conveys a less broad, less categorical message to consumers regarding the competitive products on the market.

ERSP determined that the implication that consumers will lose fat or build muscle simply by eating Quest bars would not be considered a “core claim” in the advertising. However, ERSP noted that it would be helpful for the marketer to reinforce to consumers that combining an effective diet and exercise regimen is the most effective method to obtain meaningful weight loss and that Quest bars are intended to be used as an adjunct to, and not as a substitute for, a dedicated diet and exercise regimen. 

As support for its claim that “Quest Bars will also curb your hunger more effectively than most foods,” Quest Nutrition provided ERSP with a comparison of the fiber content of its protein bars to several common high-fiber foods and other nutrition bars. Based on the comparative data, ERSP determined that the marketer provided a reasonable basis for the claim.

Finally, after reviewing the evidence in the record, ERSP determined that the marketer adequately substantiated its “Uniqueness” and “one-of-a-kind” claims.

The company, in its marketer’s statement, said, “We will follow ESRP’s recommendations and revise one sentence and add two sentences in our website for the sake of clarity.  We are grateful to have participated in ESRP’s review and will continue in our mission to provide high quality, nutritious products to our valued Quest family as we strive for constant improvement in our lives and our products.”

Wednesday, October 29, 2014

ERSP Recommends Universal Commerce Modify Advertising for ‘Senior Mobile’ Cell Phone to Better Disclose Activation Fee


The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Universal Commerce modify certain advertising claims for Senior Mobile, a cell phone designed for seniors, to better disclose that the free phone carries a $97 activation fee.

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 print advertising claims for Senior Mobile, including:
  • “Public set to get easy to use cell phones free"
  • “New cell phones aimed at keeping Texas residents safe are being given away free to everyone who beats the 48 hour deadline to cover just the one-time activation fee, but only those Texas area residents who call are also getting nationwide coverage with no long distance charges, no contracts, no deposits and no monthly bills”
  • “The only thing residents need to do is call the Toll Free Hotline before the 48-hour order deadline ends to cover just a one-time activation fee to instantly be awarded the new Senior Mobile cell phone for free.”
  • “U.S. Gov’t urges citizens to carry cell phones”
Senior Mobile is a cell phone designed for seniors that includes an “E” button, a preprogrammed button which allows consumers to make a one-touch call to an emergency dispatch center, instead of dialing 9-1-1. 

ERSP determined that the marketer provided a reasonable basis for its position that the advertising has been appropriately identified as a paid advertisement. 

The “free” offer for Senior Mobile is reinforced several times in the advertisement. While ERSP did not dispute that the cell phone itself is free, it found that the $97 activation fee was a material condition of the offer. As such, ERSP recommended Universal Commerce clearly and conspicuously disclose material information about the activation and shipping costs in the context of the advertising at issue as it pertains to the “free” offer. 

The company, in its marketer’s statement, said, “Universal Commerce, LLC, which is committed to ensuring that its advertising is truthful, accurate, and substantiated, appreciates the opportunity to participate in the Electronic Retailing Self-Regulation Program self-regulatory process … While we disagree with ERSP's conclusion that the multiple disclosures in the advertisement that consumers must pay a $97 activation fee to obtain the phone are not sufficiently clear and conspicuous, Universal Commerce will take ERSP's suggestions into consideration in its future advertisements.”

Friday, October 10, 2014

ERSP Reviews Advertising for ConsumerAffairs.com, Recommends Marketer Modify Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that ConsumerAffairs.com modify certain claims for its website.

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 was challenged by UnbeatableSale, Inc.

ERSP reviewed online advertising claims for ConsumerAffairs, including:

  • “Consumer Affairs is a consumer news and advocacy organization founded in 1998 by James R. Hood, a veteran Washington, D.C. journalist and public affairs executive. Our website includes consumer news, recall information and tens of thousands of pages of consumer reviews.”
  • “ConsumerAffairs.com is a private, non-governmental entity that empowers consumers by providing a forum for their reviews.”
The challenger also expressed concerns regarding the filtering of reviews on the website; a lack of disclosure to consumers that describes how the ratings system operates; the message that ConsumerAffairs.com is a consumer advocacy organization; and the lack of disclosures describing the material connection between ConsumerAffairs clients and their review pages.

ConsumerAffairs is a website that publishes stories on various topics and compiles consumer news, recall information, consumer resolutions, and company features along with press releases and alerts from different public sources. The site also maintains a publicly searchable database of consumer reviews of companies; each page pertaining to a company on the website includes a five-star “satisfaction rating” based upon complaints and reviews.

As the marketer’s website encompasses all aspects of customer contact, including products, services, sales and complaints, ERSP did not object to the marketer’s characterization of its website as a “… consumer news and advocacy organization.”

ERSP found that the relationship between ConsumerAffairs and its accredited members was not adequately disclosed and thus, recommended the marketer clearly and conspicuously disclose the material connection it has with its accredited members throughout its website.


ERSP also recommended that ConsumerAffairs modify its website to clearly and  conspicuously disclose to visitors of the website that reviews and complaints upon which the satisfaction ratings are based are displayed differently for accredited members and non-accredited members.

The company, in its marketer’s statement, said, “… as part of its continuing effort to provide consumers with the most accurate and updated information, ConsumerAffairs has made a number of modifications to its website that it believes addresses the two recommendations made by ERSP in its decision. ConsumerAffairs appreciates the recommendations received from ERSP regarding the information presented on ConsumerAffairs’ website, and believes that the modifications it has made address ERSP’s concerns and comply with all FTC guidelines.”

ERSP Refers Advertising for Mobile Money Code to FTC

The Electronic Retailing Self-Regulation Program (ERSP) will refer direct response advertising for Mobile Money Code to the Federal Trade Commission (FTC) after the marketer 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:

  • “Free Training: 100% Make Money With Your Cellphone!”
  • “I’m going to help make you a millionaire”
  • “The $45,422 Dollar a Day System – Mobile Money Code”
  • [screen shot of statement: Available Balance] $2,577,839.10”
  • “In the past two years I’ve made my money using a very powerful and unique custom made, cash-generating cell phone technology.”
  • "I’m really hoping that this ‘automatic money system’ works…Am I really done? I can’t believe I’m done… $448.10! Wow! I was a believer, but now…wow! I mean, this is incredible!”
Pursuant to the ERSP Policy 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 did not do so. Pursuant to ERSP Policies and Procedures, this matter has been referred to the FTC.

Thursday, September 25, 2014

ERSP Reviews Advertising for ‘Androfen,’ Recommends Marketer Modify or Discontinue Certain Claims; Find Marketer Can Support Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Androfen, LLC, modify or discontinue certain advertising claims for Androfen, a dietary supplement intended to increase testosterone levels. ERSP also determined that certain claims were supported by the advertiser’s evidence.

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 online advertising claims for Androfen, including:

  • “Reduce body fat”
  • “Increase muscle”
  • “Accelerate sex drive”
  • “CLINICALLY PROVEN TO:
    • MAXIMIZE MUSCLE MASS
    • BOOST SEX DRIVE & LIBIDO
    • ENHANCE PERFORMANCE”
  • “…reduce body fat by over 200%”
  • “In a university clinical study, men taking the active ingredient in Androfen significantly increased their testosterone in only 12 hours and reduced their body fat by over 200% versus placebo."
As support for the performance and establishment claims at issue, the marketer submitted several studies on Androfen’s key ingredient, fenugreek (T. foenum-graecum).

Following its review of the evidence in the case record, ERSP determined that the marketer provided a reasonable basis for claims that Androfen will improve libido and sexual performance and promote fat loss.

However, ERSP found that the evidence did not support establishment claims that fenugreek will help to increase muscle and maximize muscle mass. ERSP recommended that these claims be discontinued in the context in which they were presented. ERSP also recommended that the marketer discontinue the claim that “…in clinical studies, it was shown that 85% of test subjects self-reported an improvement in sexual desire.”

ERSP determined that the quantified claim that Androfen will “reduce body fat by over 200%”, as it appears in the online advertising, could be reasonably interpreted by consumers to mean that users will experience a 200% fat loss from baseline. After reviewing the evidence, ERSP recommended that this claim be discontinued in its advertised context.

The company, in its marketer’s statement, said, “Androfen, LLC has great respect for the role of ERSP in seeking to ensure truth and consumer confidence in direct response advertising. It welcomes and appreciates ERSP’s thorough review of advertising for its testosterone boosting product, Androfen. Despite Androfen, LLC’s respectful disagreements with ERSP on these aspects of the muscle mass and body fat claims for Androfen, it nevertheless certainly respects ERSP’s authority and views and therefore will give serious consideration to the recommendations contained in its report.”

Tuesday, September 2, 2014

ERSP Refers Advertising for Nick Vertucci Real Estate Academy to FTC After Marketer Declines to Participate in ERSP Inquiry

The Electronic Retailing Self-Regulation Program (ERSP) will refer direct response advertising for Nick Vertucci Real Estate Academy to the Federal Trade Commission (FTC) after the marketer, The Nick Vertucci Companies, Inc., respectfully declined to participate in 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, Inc. The marketer’s advertising came to the attention of ERSP pursuant to an anonymous competitor challenge.

Claims at issue in the initial inquiry included:

  • Over the last two years, his team has flipped over 800 properties across the country. They're coming to your city offering free training & information on how to make serious money in today's real estate market!”
  • “Will you let me turn YOU into my next Real Estate Millionaire?”
  • “Interested in earning extra money in real estate? Want to learn how to make $30,000 in 30 days? Come to Nick's upcoming FREE real estate training workshop in a nearby city and learn how to get in, get out, and GET PAID!”
  • “…make $10,000 to $40,000 per deal in your spare time without using any of your own money.”
  • “James & Minke: 3 Properties Purchased; $33,112 Net Cash Flow 22% in Appreciation”

Upon receipt of the Basis of Inquiry, the marketer informed ERSP that it was the named defendant in litigation in the United States District Court, Central District of California, Southern Division. The marketer noted that, pursuant to Section 2.2 (C)(ii)(b) of the ERSP Policy & Procedures, it would not participate in the self-regulatory forum, because it anticipates that the pending lawsuit will involve the same advertising and claims that are the subject of the ERSP inquiry.

The marketer also indicated that, while it would be unable to comply with ERSP’s request for additional information, it is voluntarily undertaking a comprehensive review of its entire advertising and marketing materials.

ERSP noted in its decision that while it recognized the marketer’s position regarding the pending litigation, there has been no confirmation that pending involves the same advertising and the same claims at issue in this self-regulatory inquiry.

Accordingly, based upon the marketer’s written representation that it would not participate in this self-regulatory inquiry, ERSP is referring the matter to the FTC pursuant to Section 2.6 (B) of the ERSP Policy & Procedures.

Thursday, August 28, 2014

ERSP Recommends Obesity Research Institute Modify, Discontinue Certain Claims for Lipozene

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Obesity Research Institute, LLC, modify or discontinue certain advertising claims for Lipozene, a weight loss supplement.

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 its ongoing monitoring program.

In response to ERSP’s initial inquiry, the marketer informed ERSP that the Federal Trade Commission (FTC) in 2005 had issued a stipulated final judgment regarding another product marketed by ORI. That order applies to Lipozene as a “substantially similar product.” The marketer provided written documentation that the FTC has reviewed certain claims and substantiating documentation in its 2006 compliance monitoring of Obesity Research Institute and Lipozene.

ERSP closed its review of claims covered by the 2005 order, but continued its review of certain performance claims and testimonials, including:
  • "Lipozene has effectively helped millions of people meet their weight loss goals."
  • "With over 20 million bottles sold, Lipozene is America's #1 selling diet supplement."
  • "There are no known side effects when taken as directed."
  • "Best of all Lipozene is all-natural and does not contain caffeine or other stimulants that can leave you feeling jittery."
  • “I have been taking this product for about 3 months and have lost almost 2 pant sizes. I take it 30 minutes before I eat and move all throughout the day. I absolutely love this product. It is by far this best product out there for a mother of 7 who doesn’t have time to go the gym.”
Following its review of the evidence in the case record, ERSP determined that ORI provided a reasonable basis for the claims “20 million bottles sold” and “millions of people meet their weight loss goals.”

ERSP did not object to the marketer‘s claim that Lipozene is “…all-natural and does not contain caffeine or other stimulants that can leave you feeling jittery,” but recommended the marketer discontinue or modify the claim that Lipozene has “no known side effects when taken as directed."

ERSP found that the marketer’s current disclosures, as they appear in online advertising, were inadequate and recommended that ORI include an accompanying triggering symbol to alert website visitors that the claims do not depict results that may be typically expected by consumers.

ERSP also recommended that ORI modify or discontinue consumer testimonials.

The company, in its marketer’s statement, said it “welcomes and appreciates ERSP’s thorough and thoughtful review of advertising for its weight loss product, Lipozene … Obesity Research Institute does not necessarily agree with all of ERSP’s analysis and conclusions … it nevertheless certainly respects ERSP’s conclusions and recommendations and will modify these claims in its future advertising.”

Thursday, August 7, 2014

ERSP Recommends Real Freedom, Inc. Modify, Discontinue Certain Claims for Real Estate Mogul; Company Agrees to Do So

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Real Freedom, Inc., modify or discontinue certain claims for the Real Estate Mogul real estate investing education program, including claims related to earnings.

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

ERSP reviewed online advertising claims for the real estate investing program, including:

  • “You’ll gain exposure to thousands of potential buyers, sellers, lenders, and partners INSTANTLY.”
  • “It can be full-time or very part-time”
  • “You’re already pre-qualified”
  • “Hey, this closes in about 2 hours…get in there and get going! Freedom awaits!”
  • “Need money fast? Yeah…you do”
  • “You’ll make anywhere from $2,250 to $10,500 for each successful match.”

The advertising reviewed consists of the marketer’s website (www.realestatemogul.com) and email marketing for Real Estate Matchmaker.

ERSP noted in its decision that the marketer voluntarily addressed certain of the specific claims at issue, including claims that users of the program can earn money quickly or easily. ERSP also acknowledged the marketer’s pledge to discontinue or modify claims that attest to ease of use, pre-qualification, and selective enrollment.

While ERSP did not object to the marketer’s general performance claims regarding descriptions of the product or service, ERSP recommended that the marketer discontinue its sales-pressure claims and refrain from communicating sales-pressure claims in future advertising. Finally, ERSP determined that the earnings claims at issue were not adequately substantiated in their advertised context and it was recommended that these advertised earning claims be discontinued.

The company, in its marketer’s statement, said that it “agrees to abide by the recommendations of ERSP and will continue to make our best effort to bring all of our marketing into compliance in a timely fashion.

Again, our ERSP review has been incredibly valuable, and we’re committed to running a business that’s entirely compliant with existing FTC regulations, as well as staying abreast of any future developments in those regulations.”

Friday, August 1, 2014

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

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Audy Global modify or discontinue claims for “Jidue,” a facial massager intended to help reduce eye puffiness, facial tension, and wrinkles.

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 claims for Jidue, including:
  • “Reduces puffiness and dark circles”
  • “Improves blood circulation”
  • “Alleviates eye fatigue”
  • “Relieves muscle tension and stress”
  • “Relieves sinus pain”
  • “Helps you sleep through the night”
  • “Reduces wrinkle development”
  • “CLINICALLY PROVEN to help relieve eye puffiness, facial tension and stress.”
  • "It's clinically proven to reduce the development of wrinkles while helping to eliminate puffy eyes and unsightly bags starting in just a few days."

As support for the performance and establishment claims at issue, the marketer submitted testing on Jidue. This study included subjects who self-reported the results of using Jidue over a thirty-day period.

Following its review of the evidence in the case record, ERSP did not object to the general description of Jidue, i.e., “Jidue's patented 18 acupulse massagers stimulate your acupressure points that date back over 1000 years, including qingming for eye fatigue and pain, qiuhou that focuses on dry eye and inflammation, and zanshou and yuyao for stress headaches," or that the product can provide a relaxing massage.

However, ERSP determined that the marketer did not provide adequate support for claims that included: 
  • clinically proven” results
  • "Helps you sleep through the night
  • Reduce wrinkle development
  • Reduces puffiness and dark circles

ERSP recommended the marketer modify or discontinue the claims in the context in which they were communicated.

The company, in its marketer’s statement, said, “Audy Global Enterprises is conducting further tests consistent with the ASRC standards and will be bringing all future advertising into compliance with their standards. Audy Global will rewrite and update existing claims compliant with the existing self-reported trials performed on the Jidue Facial massager.”

Thursday, June 12, 2014

The ERSP Copy Review - A New ERSP Service!

The Copy Review Service offers marketers the opportunity to have ERSP, a third-party self-regulatory organization, review print, broadcast, radio, and online advertising. In a Copy Review, ERSP will:
  • Review primary and core advertising claims, highlighting potential self-regulatory issues, and adhering to self–regulatory best practices and guidance provided by the appropriate regulatory authority.
  • Provide general, non-binding recommendations limited only to the specific advertising that is reviewed by ERSP. For example, ERSP’s analysis of a long form (e.g., 30 minute) broadcast advertisement may not be similarly applied to a short form (e.g., 120 second) advertisement for the same product because of the different context in which the claims may be presented.
  • Suggest what level of substantiation may be needed based upon the claims presented by the marketer and the context in which the core claims are disseminated.
Include follow-up dialogue with ERSP staff regarding the advertising.

The Copy Review Service is confidential, voluntary, non-evidentiary, non-binding and does not constitute legal advice. Please note:

  • An ERSP Copy Review that does not result in a recommendation that claims be discontinued or modified will not assure the marketer that some other action, filing or adverse finding will not occur in another regulatory or self-regulatory forum (i.e., such as the FTC or the National Advertising Division). Participation shall not be construed or represented as an endorsement or approval by ERSP, ERA, ASRC, or CBBB of a company, product or service.
  • Participation in the ERSP Program does not include an evaluation of the evidence that a marketer is or may be relying on to support any claims made in its advertising. Participants will not be required to submit evidence to substantiate core advertising claims as part of this review process.
Fees for the service vary and are dependent upon the medium of dissemination and the length of the advertisement(s).

For any questions, including ERSP Copy Review information and pricing, please contact Jessica Grodzki at jgrodzki@ersp.bbb.org.

Friday, June 6, 2014

ERSP Recommends Adams Publishing Group Modify Certain Claims for Affiliate-Marketing Program; Company Agrees to Do So

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Adams Publishing Group modify or discontinue certain claims for the Jeff Adams Real Estate Investing Expert affiliate marketing program.

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

ERSP reviewed online advertising claims for the affiliate marketing, real estate investing program, including:
  • “… teaches you how to make money with real estate investing – buying and selling foreclosures and distressed properties and doing it with no money and no credit”
  • “… will help you achieve financial freedom faster than ever!”
  • “Over the past 16 years, Jeff has invested in both residential and commercial properties in a variety of different states and his real estate businesses have brought in more than $50 million”
  • “… enabled me to increase my income in ways I never thought possible. No more hype. No more confusion. Thanks so much for your help, Jeff. I didn't think it could really be done, especially not as fast as Jeff said." [Don Sanders]
The advertising consists of the marketer’s website (www.jeffadams.com), which explains that Jeff Adams is a real estate investment expert who can teach customers how to make money with real estate investing - buying and selling foreclosures and distressed properties - through courses and training.

Preliminarily, ERSP noted the marketer’s willingness to cooperate and participate in the self-regulatory process.

ERSP was concerned with representations that consumers are able to make money with no money or no credit. ERSP noted that the marketer pledged to modify the website to qualify such claims to indicate that certain strategies do not require using any of the student’s money. ERSP also acknowledged the marketer’s commitment to indicate whether certain material terms and conditions of particular lenders may apply.

ERSP also was concerned with the implication that consumers may earn money quickly and easily and recommended that such performance claims be discontinued.
ERSP noted that the marketer did not provide any evidence regarding the amount of money that consumers have earned and that the majority of earnings claims attest to Jeff Adams’ personal success in real estate investing.

The marketer informed ERSP that with regard to www.jeffadams.com, it will further modify its website to remove all earnings claims, and will refrain from making earnings claims in future advertising that is developed. ERSP further recommended that the marketer qualify the claims with a clear and conspicuous disclosure indicating that Jeff Adam’s success was atypical, by disclosing what the typical result would be.

Finally, ERSP does not dispute that the success stories depicted in the advertising are from real people with actual success stories. However, ERSP recommended that they be accompanied by clear and conspicuous language qualifying the claims with disclosures of typicality. ERSP also recommended the marketer revisit testimonial claims for any potential implied earnings messages within the context of the testimonials themselves.

The company, in its marketer’s statement, said that it “agrees with ERSP's recommendations, has implemented those recommendations and will continue to comply with all federal, state and local laws, regulations, industry guidelines and best industry practices.”

Tuesday, May 6, 2014

ERSP Refers Advertising for Kelacore to FTC, FDA After Marketer Fails to Respond to ERSP Inquiry

The Electronic Retailing Self-Regulation Program (ERSP) has announced it will refer direct response advertising for the dietary supplement “Kelacore”  to the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) after the marketer, Nature's Medicine Associates, 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, Inc. The marketer’s advertising came to ERSP’s attention pursuant to its ongoing monitoring program.

Claims at issue in the initial inquiry included:
  • "Clears deadly plaque from arteries without pills, needles, or surgery
  • "To begin with, the results of more than 34,000 patient case studies here in the U.S. are impressive to say the least. Many patients taking Kelacore™ report a 50% reduction in artery plaque. Some users report an incredible 75% reduction.”
  • “’My femoral arteries were 70% blocked,’ says Jack Yates of Vashon, WA. ‘but Kelacore™ has pretty much cleaned them out now. It’s a relief to know I’m not such a high risk person for a heart attack or stroke anymore.’”
  • “Clinical studies show it improves blood flow in the arteries. Many patients see blood pressure and cholesterol levels return to normal. Some are able to cancel costly drugs. Others avoid open-heart surgery. And many more report less chest pains and numbness in the arms, legs, and feet.” 

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 Policy and Procedures, this matter has been referred to the FTC and FDA.

Tuesday, April 15, 2014

ERSP Recommends PartnerWithPaul.com, LLC Modify Certain Claims for Affiliate-Marketing Program; Company Agrees to Do So

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that PartnerWithPaul.com, LLC modify or discontinue certain claims for the company’s Partner With Paul affiliate marketing program.

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 affiliate marketing, wealth-creation product, including:

  • “Making money online can be easier than you think when you know how ...”
  • “I work from home and pocket more money in a month than most people make all year”
  • “More importantly, I’ll PROVE that making a million dollars online is possible with the program I am about to show you.”
  • “I'm looking for a relatively small group of people who want to make lots of money online, and the whole purpose of this website is really just to help me find these people.”
  • “$5200 in first month” [Tanya D.]
Partner with Paul is an affiliate marketing program that purports to describe a marketing program to become a reseller for a multi-level-marketing program. The advertising consists of the marketer’s website (www.partnerwithpaul.com), which describes how to make money online and invites customers to create an account with Partner With Paul in order to receive a special report titled “The Only ‘Secret’ to Making Money Online.”

ERSP disagreed that the website describes a marketing program to become a reseller for a multi-level marketing program. Indeed, nowhere on the homepage of the website does the marketer describe that customers will become MLM resellers. This is material information that must be prominently and conspicuously disclosed to consumers.

ERSP remained concerned with representations regarding the implication that product users will be able to achieve the success communicated in the advertising easily, with little or no skill, and without a lot of free time. ERSP determined that one message reasonably communicated in the advertising was that consumers can earn money quickly and easily, despite the removal of the word “easy.” ERSP therefore recommended the marketer discontinue such performance claims.

ERSP also noted that the marketer did not provide any evidence regarding the amount of money that purchasers of Partner With Paul have earned using the product. ERSP acknowledged the marketer’s pledge to remove the average earnings grid and testimonial representations. ERSP additionally noted the marketer’s attempt to qualify the claims made on the homepage. However, ERSP remained concerned that the language was neither “clear and conspicuous,” nor was it located in close proximity to the claims. ERSP additionally noted that, as of today, the claim “My best friend was really mad at me…sitting in my home office, deeply in debt, he begged me to show him how I am averaging $136,808 a month online” has not been removed, despite the marketer’s pledge in the alternative. Therefore, ERSP recommended that Partner With Paul discontinue any and all earnings claims until it can support such income statements with reliable consumer data.

Finally, ERSP recognized the marketer’s commitment to removing testimonials that reference earnings, profits, and results.

The company, in its marketer’s statement, said that it would follow ERSP’s suggestions and that it “…is in process of substantially revising our advertising and continue to improve our consumer messaging to be as truthful, accurate, clear and conspicuous as possible.”

Friday, April 11, 2014

ERSP Recommends Theradome Modify, Discontinue Certain Claims for Hair-Loss Laser

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that  Theradome, Inc., modify or discontinue certain advertising claims for Theradome, a product designed to treat hair loss through the use of a low-level laser.

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 Theradome, including:
  • “The first and only FDA cleared clinical strength laser treatment that has proven triple action”
  • “Proven to grow hair in 98 percent of users”
  • “In our clinical studies ALL participants benefited from the Theradome™ and experienced one or more of the following: 1) Thicker and more manageable hair, 2) Reduced hair loss, and 3) New hair growth after three to four months. We know it works, that's why we guarantee that you'll see great results.”
  • ”100% Proven. 100% Easy. 100% Safe.”
  • “The world’s most powerful in-home solution to treat hair loss."
As support for the performance and establishment claims at issue, the marketer submitted testing on low-level laser therapy (LLLT), the main technology behind Theradome. The marketer also provided ERSP with materials concerning its 510(k) premarket notification, which established its equivalence to a predicate device.

Following its review of the evidence in the case record, ERSP did not object to some general performance claims, but determined that the marketer did not provide adequate support for claims that Theradome will help consumers “… experience thicker and longer hair, a healthier scalp with reduced scalp itching and inflammation. Plus those with curly hair will see enhanced curl retention. After 52 treatments (20 minutes per treatment), the hairs on the top of the head and the vertex will start filling in. After 100 treatments (20 minutes per treatment), fuller and thicker hair will result with continued use.”

ERSP recommended that the marketer clearly and conspicuously disclose that Theradome is specifically intended for “females with female pattern hair loss on the Ludwig and Savin Hair Loss Scale I-II, Fitzpatrick Skin Types I to IV” as it is necessary information for consumers.

ERSP found insufficient evidence to demonstrate that the FDA had “approved” the product “to increase the diameter of hair up to 200%” – a message that ERSP determined could by reasonably understood by consumers – and recommended the marketer discontinue this claim.

Further, ERSP found that studies presented by the advertiser did not meet general standards of competent and reliable evidence and found that the marketer did not support the comparative claims at issue.

The company, in its marketer’s statement, said, “We will continue to make appropriate modifications to advertising for Theradome LH80 PRO in accordance with ERSP's recommendations … Theradome Inc. is committed to ensuring that its advertising is truthful, accurate, and substantiated. We value and support industry self-regulation and welcome the ERSP's decision regarding advertising for the Theradome LH80 PRO medical device.”

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.”