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.”

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.