Electronic Retailing Self-Regulation Program

Social Media Week: How Advertising Self-Regulation Benefits Social Media & Marketing

2012-02-17T11:39:00.000-05:00

Jeffrey Greenbaum, Kathryn Farrara, Andra Dallas, and Peter Marinello

As part of Social Media Week NY, NARC presented a panel discussion on social media - How Advertising Self-Regulation Benefits Social Media & Marketing. The presentation, moderated by Jeffrey Greenbaum of Frankfurt Kurnit Klein & Selz, PC, featured several staff including Kathryn Farrara, Senior Staff Attorney (NAD), Andra Dallas, Senior Staff Attorney (CARU), and Peter Marinello, Director (ERSP). By using self-regulatory cases as a background, the panelists covered the “rules of the road” for companies that incorporate social platforms into their advertising campaigns and marketing strategies.

What Your Consumer Says About You Matters

2012-02-17T11:30:00.001-05:00

This month's Electronic Retailer features an article written by ERSP Director Peter Marinello. In What Your Consumer Says About You Matters, Peter addresses the ever-changing landscape of direct response marketing, and in particular, the evolution and importance of the consumer testimonial as it makes its leap from infomercial to social media.

ERSP Reviews Advertising for MyPillow; Recommends Marketer Modify Certain Claims

2012-02-14T15:34:00.000-05:00

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that My Pillow, Inc. modify or discontinue certain claims made in direct-response advertising for “MyPillow,” including claims that the product can cure or treat conditions that include sleep apnea or fibromyalgia. The marketer voluntarily modified and discontinued other claims.

The marketer’s advertising came to the attention of ERSP pursuant to its ongoing monitoring program.

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

“MyPillow has changed their lives and helped relieve their disorders such as: Snoring and sleep apnea, Fibromyalgia and TMJ, restless leg syndrome, migraines/headaches, neck & back pain, asthma/allergies, anxiety and insomnia.”
“70% of the people from our studies do not snore anymore at all, but it relieves everybody's decibels, it brings it down to a tolerable level.”
“No more migraines and I'm sleeping more soundly and longer than I have before!"

At the outset of the inquiry, the marketer informed ERSP that it had modified its advertising to eliminate any claims expressly stating or implying that the product will relieve specific health conditions such as snoring, sleep apnea, fibromyalgia, etc. My Pillow, Inc. also voluntarily discontinued its snoring reduction claim (“70% of the people from our studies do not snore anymore at all, but it relieves everybody's decibels, it brings it down to a tolerable level.”)

ERSP remained concerned about references on the MyPillow site to specific health conditions and featured consumer testimonials that attesting to how the product helped to alleviate certain conditions. It also found that without independent data, the testimonials cannot substantiate product performance claims. ERSP recommended the marketer discontinue references to specific health conditions on its website and the consumer testimonials that appear on the related pages.

The company, in its marketer’s statement, said that while it may disagree with ERSP, “…it certainly respects its findings and recommendations and will take them into account and consideration while making appropriate changes to its present and future marketing.”

ERSP in January's Electronic Retailer

2012-01-09T16:02:00.001-05:00

Greg Sater of Venable LLP wrote a great article detailing two of ERSP's 2011 cases regarding fitness equipment. Please check out the full article here in the January 2012 edition of the Electronic Retailer.

ERSP & ERA's TV Council

2012-01-06T09:48:00.000-05:00

ERSP's Peter Marinello spoke at the ERA's TV Council Committee yesterday and updated the group on what's been transpiring in the world of advertising claim substantiation. We've had a lot of interesting cases and issues come up last year and with the ever-changing platforms of television, mobile, and the web, we expect there to be some new developments in 2012.

ERSP Featured on Drugstorenews.com

2012-01-04T12:34:00.000-05:00

In December, ERSP was featured on DrugStoreNews.com in an article regarding a recent case. Check out the full article here.

ERSP Recommends Creative Product Solutions Modify Advertising Claims for Reduxx TrimSuit; Finds Advertiser can Support Certain Performance Claims

2011-12-14T14:14:00.001-05:00

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Creative Product Solutions modify consumer testimonials in advertising for the “Reduxx TrimSuit.” ERSP determined that the marketer could support certain performance claims for the weighted exercise suit.

The marketer’s advertising came to the attention of ERSP pursuant to its ongoing monitoring program.

ERSP reviewed broadcast and online advertising for Reduxx TrimSuit and identified several claims for review, including:

“Just wear it and lose weight!” and “You don't have to change what you do - Just change into the TrimSuit!”
“The REDUXX TrimSuit will intensify all activities, causing your muscles to put in the overtime and burn calories at a faster rate.”
“Enhances athletic performance,” “Increased endurance,” and “Improves your overall health.”
“The Reduxx TrimSuit is proven to enhance your weight loss, athletic performance and over all health and well being.”
“I lost 7 pounds wearing the TrimSuit,” “I lost 22 pounds,” “I've lost 15-20 pounds,” “135 pounds in the last year,” ”Lost those last 8 pounds,” ”I wore the TrimSuit and lost 35 pounds,” and “From a 60" waist to a 36" waist.” [Infomercial testimonials]

Creative Product Solutions submitted a study conducted on the Pro Powersuit, a prototype for the Reduxx TrimSuit. The results showed significant increases in calorie burn for those wearing the Pro Powersuit as compared to those not wearing any weighted exercise suit. ERSP found no significant differences between the prototype and the current product, the Reduxx TrimSuit. The marketer also noted that weighted exercise suits are used by athletes as increasing weight/resistance while training can help to improve endurance, strength, and stamina. ERSP found the evidence submitted to be sufficient to support the performance claims made in the advertising.

However, ERSP found that consumer testimonials featured quantified weight-loss claims without a clear and conspicuous disclosure stating that the results promoted through the testimonials required adherence to a strict diet and exercise regimen.

ERSP further recommended the disclosure indicate the results that consumers can typically expect from use of the product in conjunction with diet and exercise.

The company, in its marketer’s statement, said that while “may not agree with all of ERSP's conclusions … because we support your efforts to protect consumers we agree to accept ERSP's decision in its entirety and agree to modify our advertising as suggested.”

ERSP Recommends Emergent Health Modify, Discontinue Certain Advertising Claims for 'JDI MultiVitamin' - Marketer Voluntarily Modified Certain Claims

2011-12-14T14:14:00.000-05:00

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Emergent Health Corp., modify or discontinue certain Internet advertising claims for the company’s “JDI MultiVitamin,” promoted by the advertiser as designed to “increase adult stem cells.” The marketer voluntarily modified several claims at issue in ERSP’s inquiry.

The marketer’s advertising came to the attention of ERSP pursuant to an anonymous competitive challenge.

Claims at issue in ERSP’s review included:

“It is designed to supply all of the micro nutrients needed to support life as well as increase adult stem cells.”
“ Immune System Support, More Energy, More Stamina, Clearer Thinking, Maintain Health, Just Plain Feeling Better”
“… may also help maintain existing telomere length by up to 5% according to recent studies of multi vitamins.”
“The ingredients of the product have been thoroughly tested for safety and also studied for the effects of increasing adult stem cells, improving immune system support, decreasing inflammation and bettering mental acuity and mood as well as telomere support based upon structure and function.”
“My grandmother has Alzheimer's, osteo, and heart problems. At her last doctor's visit he told her that her tests are better than they have been for over 20 years.” B.C.

JDI MultiVitamin is a dietary supplement containing a number of essential vitamins and minerals. According to the marketer, the supplement’s proprietary formula is also designed to “increase adult stem cells.”

At the outset of ERSP’s inquiry, the marketer asserted that it had voluntarily modified or discontinued certain of the claims at issue. While confirming that Emergent Health had implemented changes, ERSP noted in it decision that it remained concerned with several core claims. ERSP further noted that the advertiser did not provide ERSP with the results of testing on the JDI MultiVitamin formula, but instead relied on studies of the product’s ingredients.

Following its review, ERSP determined that the evidence in the record did not support claims that the use of the product would increase the number of adult stem cells, thereby improving immune system support, decreasing inflammation or bettering mental acuity and mood. ERSP recommended Emergent Health discontinue claims that the product can increase the number stem cells and/or provide specific disease protection.

ERSP also was concerned about statements that could be reasonably interpreted as unqualified superiority claims (e.g., “The most simple and cost effective…” and “the most advanced…”). Emergent Health informed ERSP that it has modified these claims to appear in future advertising in a non-comparative context.

Regarding the consumer testimonials at issue, ERSP noted that consumer endorsements themselves are not competent and reliable scientific evidence and a marketer should possess reliable substantiation – including, when appropriate, competent and reliable scientific evidence – to support such in the same manner the marketer would be required to do if it had made the representation directly. In the absence of data supporting the results consumers can typically expect, ERSP recommended that the marketer refrain from using consumer testimonials to communicate atypical product performance.

The company, in its marketer’s statement, said it “…agrees to accept ERSP's report as applicable and agrees to amend all statements in its advertising to meet the conclusion of the ERSP report. Likewise, the Company is willing to complete the process and take ERSP's recommendations into consideration in its future advertising.”

ERSP Reviews Advertising for Arthri-D3; Finds Marketer Could Support Certain Performance Claims

2011-11-23T14:45:00.002-05:00

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Blue Vase Marketing modify or discontinue certain advertising claims for the company’s Arthri-D3 dietary supplement. ERSP determined that the company could support claims that Arthri-D3 can help relieve the pain osteoarthritis.

ERSP, which reviews core claims in direct-response advertising, examined broadcast and Internet advertising for the product and reviewed performance claims, comparative claims and claims made through testimonials.

ERSP noted in its decision that the marketer, prior to receipt of ERSP’s initial inquiry, had “voluntarily removed the testimonials ERSP identified” and would revise any future advertising in a manner that adheres to the Federal Trade Commission’s guidance regarding the use of endorsements and testimonials in advertising.

In addition, the marketer advised ERSP that it has also either modified or discontinued the following comparative and general performance claims:

"Superior ingredients and manufacturing yield a superior supplement.” and “Arthri-D3™ is produced in the United States of America in a superior manufacturing facility that adheres to the highest quality standards."
"What's not to like about better, faster, all-natural results?"; "…I’ve tried all the natural products out there, the glucosamines, the chondroitins, nothing seemed to work." [Jim Shriner, online video]
"Start feeling better today."

Arthri-D3 is a dietary supplement for joint and pain relief that combines N-Acetyl-Glucosamine (NAG) with vitamin D3 and several key plant extracts. The formula is marketed to support the structure and function of joints and the advertising is targeted to people suffering from symptoms of osteoarthritis and the degradation of joints, including articular cartilage and subchondral bone.

The marketer did not provide ERSP with testing on the product itself. Instead, the marketer relied on testing conducted on glucosamine, the product’s primary ingredient.

ERSP concluded that the marketer provided a reasonable basis for claims touting the joint health benefits of glucosamine and its role in relieving the pain of osteoarthritis, but recommended the marketer modify or discontinue claims that suggest consumers will derive an immediate benefit from use of the product.

ERSP determined that the marketer’s evidence was not sufficient to support the claim that Arthri-D3 provides effective pain relief for rheumatoid arthritis,

fibromyalgia or gout and recommended the market discontinue such claims in future advertising.

ERSP further recommended that the marketer discontinue its claim that Arthri-D3 can “re-build … cartilage.”

ERSP noted that the advertising at issue included statements suggesting that NAG is a superior form of glucosamine as compared to the other types of glucosamine commonly found in comparative products. However, in the absence of supporting evidence, ERSP cautioned Blue Vase about disseminating comparative efficacy claims about NAG versus glucosamine sulfate and glucosamine HCL.

Finally, ERSP addressed the omission of a clear and conspicuous disclosure that Jim Shriner, an expert endorser, was remunerated for his appearance in infomercial advertising. Although a super discloses that information at the start of the infomercials, the super is not repeated at any time during the 30-minute broadcast. ERSP recommended the advertiser repeat the disclosure throughout the program.

While the marketer took issue with certain of ERSP’s finding, the company said that it would “take ERSP’s recommendations under advisement for all current and future advertising.”

ERSP Reviews Advertising for Heart Factors Plus; Marketer discontinues claims

2011-11-22T14:42:00.002-05:00

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Chamonix has provided adequate support for certain claims made in direct-response advertising for “Heart Factors Plus,” a dietary supplement intended for cardiovascular health. The marketer voluntarily discontinued several claims that were the subject of the ERSP inquiry.

The marketer’s advertising came to the attention of ERSP pursuant to its ongoing monitoring program.

ERSP reviewed broadcast and online advertising for Heart Factors Plus and identified several claims for review, including:

“But did you know that Arginine can also improve your mood as well as your memory?”
“…many customers notice a boost in their intimate relationships after just 1 day!”
“…in just days you can feel the incredible health benefits.”
“With Heart Factors Plus, it’s 100% natural so there’s no side effects as long as you take the recommended dosage.”
“As a result, arginine can actually treat high cholesterol and high blood pressure and, essentially, help prevent heart disease.”
“The miracle amino acid shown to help: normalize blood pressure levels, improve male sexual intimacy, [and] improve male sexual function.”
\'In the spring, I was at 134/93, ON MEDICATION. Today, my blood pressure is 120/82, and I'm off the meds.” [John R, Hillsborough, NJ]
“The magic bullet for the cardiovascular system for its ability to produce Nitric Oxide, which helps lower blood pressure, lower cholesterol and prevent heart disease.” [Columbia University]

At the outset of the inquiry, the marketer indicated that it had voluntarily discontinued many of the performance and establishment claims at issue.

As support for the remaining performance and establishment claims, Chamonix submitted a number of studies regarding arginine, the primary ingredient in Heart Factors Plus. After reviewing the case record, ERSP agreed that the marketer provided a reasonable basis for claims that arginine “can meaningfully contribute to the maintenance of cardiovascular health.” However, ERSP recommended Chamonix refrain from making claims referencing the improvement of short-term memory, the treatment of specific conditions such as erectile dysfunction, and the amount of time in which the supplement can work.

Although it found the evidence supported claims that arginine can “normalize blood pressure levels, improve male sexual intimacy, [and] improve male sexual function,” ERSP recommended that the marketer modify or discontinue the other establishment claims that were the subject of the inquiry.

During the inquiry, Chamonix voluntarily removed one of the testimonials (“The magic bullet for the cardiovascular system for its ability to produce Nitric Oxide, which helps lower blood pressure, lower cholesterol and prevent heart disease”) in question. Since no reliable evidence was produced indicating that Heart Factors Plus will remove arterial plaque, ERSP recommended the marketer discontinue testimonials describing the elimination or reduction of specific health conditions.

The company, in its marketer’s statement, said, “Chamonix will make appropriate adjustments to its advertising for Heart Factors Plus consistent with ERSP’s recommendations. We value and support industry self-regulation, and we welcome ERSP’s decision regarding advertising for Heart Factors Plus.”

ERSP Reviews Advertising for Nopalea; Recommends Marketer Modify, Discontinue Claims

2011-11-07T15:15:00.000-05:00

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that TriVita, Inc., modify or discontinue certain claims made in direct response advertising for “Nopalea,” a dietary supplement made from cactus fruit juice.

The marketer’s advertising came to the attention of ERSP pursuant to its ongoing monitoring program.

ERSP reviewed broadcast and online advertising for Nopalea and reviewed the following core performance claims:

"Daily use helps your body: Reduce inflammation, Detoxify, Achieve optimal cellular health, [and] Protect against premature aging.”; “Reduce swelling in joints and muscles”
"Scientific research shows that Betalains help to: Reduce the risk of blood clots... reduce bad cholesterol... protect cells from toxins... protect your liver.”
“Finding: Nopalea promotes optimum cellular health, helps reduce inflammation, helps detoxify poisons, helps protect against premature aging, provides blood sugar stability and helps reduce inflammation.”
“Nopalea delivers scientifically proven health benefits.” and “Nopalea harnesses the power of this desert superfruit and its belatains to bring you scientifically proven health benefits.”
“Want even more reasons to drink Nopalea? Scientific research shows that Nopalea also helps the body to: Increase Energy, Boost the immune system, Protect against fluid retention, Neutralize free radicals”
“Best of all, Nopalea helped my body reduce inflammation as shown on my C-Reactive Protein test. Prior, the score was 1.3, but since Nopalea, it is down to just barely over zero – it decreased one full point.”

As support for performance and establishment claims, TriVita submitted a number of scientific studies on Nopalea’s main ingredient, Opuntia ficus indica (Nopal cactus).

While ERSP did not dispute that the studies provided useful information about the primary ingredient in Nopalea, the evidence did not support express claims regarding specific health conditions. ERSP recommended the marketer modify or discontinue the performance claims at issue.

ERSP noted that there have been no clinical studies on the product and the evidence provided does not support claims that Nopalea will alleviate or eliminate specific health conditions. ERSP recommended the marketer discontinue testimonials describing specific health conditions. Further, ERSP recommended that TriVita add a clear and conspicuous disclosure describing the relationship between TriVita and its “members.”

“The fact that the some of the consumer testimonials are made by people who receive commission on the sale of the product might materially affect the weight and credibility of the representation as interpreted by consumers and, as such, should be clearly and conspicuously disclosed in the advertising,” ERSP stated.

The company, in its marketer’s statement, noted that clinical trials of the product are underway. The company said it “…takes great care to truthfully and accurately advertise its products. Although the Company certainly disagrees with certain conclusions of ERSP, it has and will continue to cooperate with ERSP and make appropriate modifications to its advertising.”

ERSP Advertising Week Summit

2011-10-12T12:22:00.000-04:00

ERSP held its first Advertising Week Summit on October 6, 2011 at Lucille's Bar & Grill in NYC.

The panelists provided guidance on how to use testimonials and endorsements in social media. Even with the proliferation of word-of-mouth marketing and social media, many of the ground rules for testimonials and disclosure haven't been set. With this in mind, a running theme throughout both panels was whether an organic conversation on a platform such as Facebook could become a testimonial/endorsement. User-generated content is becoming more and more popular, but there is little precedent regarding how this type of content is approached from a regulatory standpoint. Regardless, all of the panelists encouraged companies to monitor what affiliates and consumers are saying on social media about their products and to ensure that unrealistic claims are not being made.

The panelists also explained the key changed to the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising. The Guides were revised back in 2009 to more accurately reflect the use of "new media" in advertising. With the "Results not typical" safe harbor eliminated, the panelists explained different ways of approaching the disclosure of material connections and typical product performance.

ERSP found the panels to be very engaging and informative and would like to thank the panelists for leading the discussion. We hope you enjoyed the event!

ERSP Reviews Advertising for Springbak Springsoles; Marketer Discontinues, Modifies Certain Claims

2011-10-06T10:31:00.000-04:00

New York, NY – Oct. 6, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that Springbak can support certain claims for the company’s “Springsoles.” The marketer agreed to voluntarily modify other claims as recommended by ERSP.

The marketer’s advertising came to ERSP’s attention pursuant to its ongoing monitoring program.

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

· “Gain 5.5% Longer Stride Length,” “Shorten Foot Plant Time," and “Quicker Stride Frequency”

· “Springbak scientifically cushion your feet upon impact. The patented materials give you a spring effect that excels and pushes you up to run faster, jump higher, and with the molecular bonding, actually amplifies your strength and performance.” and “Guaranteed to help ease your feet and joint pain, improve your stability, and increase your athletic performance.”

· “We got to the state championships for the first time without one injury and I know for sure it was Springbak.” and “We strength tested 21 of our track athletes. They were able to do 35% more clap push-ups wearing the Springbak® Springsoles, despite fatigue and the breakdown of lactic acid in their arms and shoulders from the first trial.” [Dave Houle]

· “I was able to do just one repetition performing an overhead press with a 55 lb. dumbbell. After resting 3 minutes I pulled off the same 55 lb. dumbbell and promptly did eight overhead presses while using the Springbak® Springsoles.” [E.J. Cafaro]

As support for the performance claims at issue, Springbak submitted a variety of studies conducted by several college coaches. However, ERSP found many of the studies to be inadequate support for the claims as they were conducted on a small sample of subjects with little to no control parameters or statistical significance. Although the testing did provide a reasonable basis for the claim that consumers will “run faster,” ERSP recommended that Springbak discontinue health and safety (e.g., “…help ease your feet and joint pain”) and establishment claims.

A number of the testimonials featured in the advertising make several representative and qualified claims. Following a review of the evidence, ERSP determined that the information submitted by Springbak could not adequately support the claims in question and that the results stated in the testimonials were not demonstrated to be “typically expected by consumers.” Thus, ERSP recommended that the claims be modified or discontinued.

The company, in its marketer’s statement, said it “…feels ERSP has been extremely fair in its assessments and suggestions. The suggestions have been implemented on the Springbak website. We look forward to working with ERSP in the future.”

ERSP at ERA's D2C Conference in Las Vegas

2011-09-21T14:45:00.001-04:00

ERSP Director Peter Marinello and NARC President Lee Peeler at the ERSP booth

ERSP attended ERA's D2C convention held in Las Vegas last week. It gave us a great opportunity to speak to DR marketers and advertising agencies about our role in the industry. We also had the chance to attend some of the panels and were a part of several key discussions regarding self-regulation and direct response.

ERSP Advertising Week Summit - 10/6/11

2011-09-20T12:28:00.001-04:00

ERSP

ADVERTISING WEEK SUMMIT

OCTOBER 6, 2011 | B.B. KING, NYC | FREE!

Social Media & Testimonials

With a plethora of new media channels – social media channels ‐ emerging at the speed of light, marketers are all working to utilize the tools at their disposal. As the digital and social media landscapes continue to evolve, so do the ways in which we are able to engage consumer audiences. While the FTC’s revised Guides on the Use of Endorsements and Testimonials in Advertising are relatively straightforward, marketers and bloggers still have many questions on what and how they should be communicating and sharing, and what representations necessitate clear and conspicuous disclosure.

To register, send an email to

Panelists include:

Jeffrey A. Greenbaum | Partner, Frankfurt Kurnit Klein & Selz PC

Thomas A. Cohn, Esq. | Venable LLP

Tom Chernaik | CEO, CMP.LY

Jeff Meltzer | Meltzer Media Productions

Tim Leake | Creative Director, Saatchi & Saatchi New York

Introductory remarks by Lee Peeler, President, National Advertising Review Council

Moderated by Peter Marinello, Director, Electronic Retailing Self-Regulation Program (ERSP)

When: Thursday, October 6, 2011 9:30AM – 11:30AM
Where: B.B. King Blues Club & Grill, 237 West 42 St. New York, NY 10036

Nielsen's Social Media Report

2011-09-15T15:23:00.000-04:00

Nielsen just released its Q3 2011 Social Media Report. It's full of statistics about social media - who's using it, when they're using it, how they're accessing it, etc. It's a great, quick read that really highlights the expanding growth of social media among various ages and other variables. Check it out.

ERSP Reviews Advertising for Stemplex: Marketer Voluntarily Discontinues, Modifies Claims

2011-08-15T12:36:00.000-04:00

New York, NY – August 15, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Simplexity Health modify marketing materials for the company’s “StemPlex” product to better inform consumers that its advertising claims are based on the results of studies done in laboratories or on animals, not on humans. The marketer has agreed to do so.

The marketer’s advertising came to the attention of ERSP pursuant to an anonymous competitive challenge.

ERSP reviewed online advertising for StemPlex, which claims to promote stem cell growth, and identified several claims for review, including:

· “70% increase in adult stem cell production”

· “Provide micronutrition that enables stem cells to flourish.”

· “Protect existing stem cells and nervous system cells from the harmful effects of free radicals and oxidative stress.”

· “Enhances survival of nervous system cells by up to 55%”

· “…the increase in stem cell production gained from using StemPlex is far greater than the increase that occurs through use of the ingredients individually.”

· “All of the ingredients in this exceptional formula have been shown to increase the proliferation of adult stem cells in vitro (in a test tube); when they are combined, the increase is even greater,” and “Increases the growth of adult stem cells, as shown in in vitro laboratory studies.”

During the course of ERSP’s review, Simplexity voluntarily modified certain claims, adding the terms “in vitro,” “in vivo,” and “animal studies” where appropriate.

However, as ERSP noted in its decision, “it is imperative that advertisers in this product category not simply be judicious in communicating accurate and non-misleading messages to consumers, but also be cognizant of any additional information they provide to consumers.”

ERSP recommended that the marketer provide a link to the studies that form the basis of support for its claims to provide “the necessary clarity for consumers in recognizing the limitations of the resulting data.”

Simplexity Health informed ERSP that it had removed some of the testimonials that were subject of the original inquiry; however, ERSP noted that a section (“Voices”) on Simplexity Health’s site included consumer statements that create expectations regarding product performance. ERSP concluded that the evidence submitted does not support these claims and recommended the marketer modify the “Voices” section of its site to remove testimonials that speak directly to product performance.

The company, in its marketer’s statement, said it “...will add the recommended links to the full text versions of the published StemPlex research reports that support our performance claims in our online advertising so there is no possibility the claims could be potentially misinterpreted. Additionally, Simplexity will modify or remove those testimonials that include claims that are not directly supported by the scientific data.”

ERSP Finds DR-Ho’s Can Support Certain Claims for ‘Slimmies’ - Recommends Marketer Modify Certain Claims

2011-08-10T12:30:00.001-04:00

New York, NY – August 10, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that clinical studies on a key ingredient – LuraLean – provide adequate support for performance claims made by DR-Ho’s for “Slimmies Weight Loss Chocolates.” The marketer agreed to voluntarily modify other claims as recommended by ERSP.

The marketer’s advertising came to ERSP’s attention pursuant to its ongoing monitoring program.

ERSP reviewed online advertising for Slimmies, and identified several claims for review, including:

Performance Claims

· “SLIMMIES weight loss chocolates will gently expand in your stomach to help curb your appetite and cravings to help you prevent from over-eating.”

· “SLIMMIES’ active ingredient will help give your metabolism the boost it needs by cleaning the build up of triglycerides, undigested food and fats from your digestive system.”

· “It’s natural and safe.”

· “No more diets and depriving yourself, just eat sensible and remember your Slimmies.”

Establishment Claims

· “SLIMMIES Weight Loss Chocolates contain a breakthrough active ingredient that is clinically shown to help absorb the fats from the foods you eat. It helps bind to the oils, fats and grease to help reduce your calorie absorption.”

· “In a study conducted by the University of Connecticut, participants were provided with either Slimmies’ Proprietary Ingredient or a Placebo. Compared to their baseline weights, participants who took Slimmies’ Proprietary Ingredient lost on average 4.9 lbs in just 4 weeks. Comparatively, those who took the Placebo only lost an average of 0.4 lbs.”

· “Clinically proven active ingredient formulated with a delicious mouth watering chocolate that will help reduce fat absorption, control you appetite, and help boost your metabolism…”

· “Slimmies’ patented ingredient is backed by clinical studies showing safe, consistent weight loss.”

As support for performance claims, DR-Ho’s submitted various studies relating to LuraLean, a form of glucomannan, and its effect on feelings of fullness and satiety. The marketer explained that glucomannan is a water-soluble dietary fiber derived from the konjac root. These studies demonstrated that participants who consumed LuraLean prior to meals were able to achieve greater weight loss than while on a control treatment. Other studies submitted showed that LuraLean effectively reduced glucose levels.

Regarding the claim that Slimmies can absorb fat, DR-Ho’s informed ERSP that it will modify the language to more accurately reflect LuraLean’s effect on metabolic activity.

ERSP noted in its decision that the marketer had made a concerted effort to limit claims to appetite suppression and caloric absorption while clearly noting the clinical evidence is applicable to the active ingredient LuraLean, rather than Slimmies itself.

The company, in its advertiser’s statement, said it “…greatly appreciates the opportunity to participate in the Electronic Retailing Self-Regulation Program and is pleased that ERSP determined that scientific evidence substantiated its core marketing claims that the studies on the key ingredient in the Slimmies - LuraLean - helps reduce appetite and assists in weight loss.”

ERSP Finds Murad Can Support Certain Claims for Acne Complex; Recommends Marketer Modify, Discontinue Certain Claims

2011-07-12T12:18:00.000-04:00

New York, NY – July 12, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that Murad, Inc., provided adequate support for certain performance claims made in direct-response advertising for Acne Complex, a product marketed by the company, but recommended the marketer modify certain claims.

The marketer’s advertising came to ERSP’s attention through an anonymous challenge.

ERSP reviewed broadcast and online advertising for Acne Complex, and identified several claims for review, including:

“Clear skin is as easy as 1, 2, 3 - and it only takes four weeks!” and “Get clear in 4 weeks. Guaranteed.”
“See a difference in just 3 days.”
“There are also a number of skin conditions that resemble acne such as eczema, perioral dermatitis and folliculitis. While they may not involve all of the factors that cause real acne, they do have one thing in common — inflammation. The good news is that Murad Acne products address ALL of the factors of acne and skin breakouts, reducing cell build-up, excess oil and inflammation.”
"In a clinical study, 92% of users experienced a reduction of acne breakouts in just 3 days.”
“...I have used the acne product for 3 days and my face is already clear!" [Brandi, MI]
“After less than 1 week, my acne had disappeared and has not returned since!" [Karin Maki, MI]
“Acne Complex works because… it does NOT contain Benzoyl Peroxide.”

ERSP determined that the marketer provided sufficient evidence to support the claim that “In a clinical study, 92% of users experienced a reduction of acne breakouts in just 3 days.”

However, ERSP remained concerned about the claim, “Get Clear in 4 weeks.” The marketer based its claim on two marketer-sponsored 4-week studies in which acne lesion counts were reduced, and a twelve week study referenced in the 1985 Tentative Monograph. The Food and Drug Administration, in its monograph regarding over-the-counter acne treatments, has explicitly outlined the language that may be used when referencing the efficacy of a product. ERSP noted it may not have been the intent of the FDA to permit a claim of “Get Clear” based upon a showing of reduced lesion counts after just four weeks. The FDA states, “Any treatment that continues to reduce lesion counts beyond 4 weeks is actually preventing the development of new acne.” Accordingly, ERSP recommended the marketer modify this claim to use the language found in the FDA monograph which, in part, includes the wording “clears,” “clears up,” or “helps clear.”

Regarding claims referencing other skin conditions, ERSP found that Murad had adequately modified its advertising to limit its efficacy claims to the reduction of redness and inflammation associated with other conditions. Murad also voluntarily removed two of the related claims from its Website.

The marketer removed two of the testimonials that were the subject of the inquiry. In addition, the company included a disclosure on its testimonials page referencing testing showing that Acne Complex reduces acne lesion counts after four weeks.

ERSP remained concerned about comparative claims (i.e., “Acne Complex is the leading clinical skin care brand that is actually good for your skin” and “Acne Complex works because… it does NOT contain Benzoyl Peroxide”) that could be understood to mean that Acne Complex is more effective than products that contain benzoyl peroxide. ERSP recommended the marketer modify or discontinue such comparative claims until it can provide evidence to support each claim. However, ERSP found Murad’s comparative claims appropriate when the distinction between salicylic acid and benzoyl peroxide is based purely on reduced irritation or redness.

The company, in its marketer’s statement, said, “Murad appreciates the careful review undertaken by ERSP and agrees to seriously consider ERSP’s recommendations in all future advertising and is voluntarily making the changes recommended by ERSP and outlined in this decision. Murad supports ERSP and encourages others in the advertising industry to support the self-regulatory process.”

Vascular Health Specialists Participates in ERSP Forum: ERSP Finds Support for Certain Claims; Recommends Marketer Modify Testimonials

2011-07-07T17:00:00.000-04:00

New York, NY – July 7 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that Vascular Health Specialists (VHS) provided adequate support for performance claims made in direct-response advertising for Rosadyn.

The marketer’s advertising came to the attention of ERSP pursuant to an anonymous consumer complaint.

ERSP reviewed online advertising for Rosadyn, and identified several claims for review, including:

Performance Claims

“Rosadyn is an advanced non-prescription oral nutraceutical that targets facial redness, facial flushing, skin inflammation, and ocular rosacea.”
“The Vascular Support Blend has been shown to repair damaged skin vessel walls and protect blood vessels from free radical and inflammatory damage”
“Individually, these ingredients have been shown to mitigate inflammation, inhibit free radical formation, reduce skin redness and thicken and moisturize the skin from the inside-out.”
“The Hypothalamus Support Blend includes ingredients which have been shown to lower stress and anxiety responses in the brain, resulting in a naturally calming effect that produces relaxation without drowsiness.”

ERSP was also concerned about the omission of material information in testimonials regarding the generally expected product performance.

At the outset of the inquiry, VHS informed ERSP that many of the claims that were subject of the initial inquiry were part of a test marketing website that is no longer available. As such, ERSP reviewed the four remaining nationally disseminated claims.

Rosadyn, a nutraceutical that targets facial redness, facial flushing, skin inflammation, and ocular rosacea, includes a proprietary formula containing a variety of ingredients. The marketer provided ERSP with more than fifty studies that it asserted would demonstrate the efficacy of individual ingredients found in Rosadyn. Following its review of the evidence, ERSP determined that VHS provided adequate support for its performance claims.

VHS also provided ERSP with a copy of a pilot study consisting of an online survey of 55 participants who were provided with a one-month supply of Rosadyn. The results indicated that many participants saw a decrease in rosacea-related symptoms and 83% believed the product met or exceeded expectations. A follow-up survey showed continued improvement through the six-month mark.

ERSP was concerned, however, that testimonials at the Rosadyn site could create unsupported consumer expectations as to the performance capability of Rosadyn.

ERSP noted in its decision that, while it is not “questioning the authenticity of the testimonials, it cannot be ignored that the representations can be considered more than general or anecdotal and are not supported by virtue of subjective responses from a one-month online consumer usage study or by individual ingredient evidence.”

ERSP recommended that the marketer modify the testimonials page to ensure that testimonial claims are in compliance with the FTC’s Guides on the Use of Endorsements and Testimonials in Advertising and do not create unsupported product performance expectations.

The company, in its marketer’s statement, said, “[VHS is] heartened by ERSP’s conclusion that these studies adequately supported the four key general performance claims that remain part of Rosadyn’s nationally disseminated marketing material … we are nonetheless exploring ways to best incorporate ERSP’s recommendation into the testimonial section.”

PR: ERSP Finds Emson, Inc. Can Support Certain Claims for Ab Rocket Twister, Recommends Marketer Discontinue, Modify Certain Claims

2011-06-28T13:57:00.000-04:00

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.

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

2011-06-17T12:28:00.001-04:00

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

2011-06-16T09:21:00.000-04:00

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

2011-06-14T16:32:00.000-04:00

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.

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.

PR: ERSP Finds M&M, Inc. Can Support Certain Claims for Flex Belt, Marketer Discontinues Certain Claims

2011-05-27T16:45:00.000-04:00

The Electronic Retailing Self-Regulation Program has determined that M&M, Inc. has provided adequate support for performance claims made in direct response advertising for the Flex Belt. The marketer voluntarily discontinued several other claims that were the subject of the ERSP inquiry.

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 Flex Belt, and identified several claims for review, including:

"The Flex Belt easily tightens, tones, and firms abdominal muscles.”
“Flex Belt’s advanced electronic muscle stimulation basically does all the work for you.”
“Wearing it is all you have to do to get results, demonstrated results in just 6 weeks.”
“Safe, sensible and FDA cleared.”
“As a result, you get an effective abdominal workout that targets all the muscles in your abdomen – all in just 30 minutes a day.”
“The Flex Belt will stimulate all your stomach muscles causing contractions that provide you with the perfect crunch – that means your upper abs, the lower abs and even your obliques are going to get worked from The Flex Belt...and it does all the work for you.”
“Used daily you should see results in 4-8 weeks.”
“Demonstrated Study Results You Can FEEL In Just Weeks.”
“We saw a 49% increase in abdominal strength and 72% increase in abdominal endurance which are phenomenal results.”
“One of the things I noticed right away was the strength of the contraction I got versus some of the other machines.” [John P. Porcari]

ERSP also reviewed claims included in consumer testimonials, including:

“I use the Flex Belt for my abs. There are a lot of other products, but they can’t beat the Flex Belt for effectiveness.” [Janet Evans]
“I've lost 15 lbs and my stomach muscles are rock hard…” [Casey C.]
“I lost about 3 inches in my stomach area in less than 2 months, and I am sure I will loose more, the more I use the belt.” [Nazek S.]
“My waist lost three inches in three weeks.” [Ross C.]
“It's now May and I have already lost 4 inches off my waist and 15 lbs total.” [Kasha J.]

At the outset, M&M, Inc. informed ERSP that the Flex Belt is manufactured by Bio-Medical Research, Ltd., which also makes the Slendertone line of abdominal belts, a product whose advertising was reviewed by ERSP in 2005. The marketer explained that the two products are considered the same for safety and efficacy purposes by the FDA and thus, research conducted on the Slendertone belt is applicable to the Flex Belt.

M&M, Inc. provided ERSP with several studies demonstrating the effectiveness of the Slendertone belt in improving abdominal strength and endurance. ERSP determined that this information provided a reasonable basis for the performance and establishment claims made in direct response advertising for the Flex Belt.

The marketer also informed ERSP that it would voluntarily remove consumer testimonials that include express claims of inch loss, weight loss, and six-pack ab-type statements. Additionally, M&M, Inc. agreed to remove Janet Evans’ testimonial (i.e., “I use the Flex Belt for my abs. There are a lot of other products, but they can’t beat the Flex Belt for effectiveness”).

The company, in its advertiser’s statement said, “M&M, Inc., is pleased to have participated in the ERSP process … M&M recognizes and appreciates ERSP's rationale with regard to those modifications made to the website and will consider them when developing future advertising content.”

ERSP Featured on ABC's 20/20

2011-05-24T15:40:00.000-04:00

The clip above is from May 20th's 20/20 episode, Informercial Nation. ERSP Director Pete Marinello appears towards the end of the segment focusing on product claims.

Literally Compliant

2011-05-11T09:57:00.000-04:00

Ad Age has a great article ("Campbell Labeling Fight Feared to Embolden Class-Action Attorneys") regarding the ongoing Campbell Soup class-action suit.

Linda Goldstein sums it up well: "The notion that you could be literally compliant with the labeling requirement but the labeling can still be found to be misleading could potentially open the floodgates for more class-action litigation." She added: "It's a sober reminder to marketers that truthful labeling and labeling that complies technically with the regulations of the FDA can still be subject to challenge."

PR: ERSP Finds RHN Can Support Certain Claims for 'RightSize Smoothies,' Marketer Discontinues Certain Claims

2011-05-10T14:00:00.002-04:00

New York, NY – May 10, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that RightSize Health & Nutrition can support certain performance claims for the company’s “RightSize Smoothies.” ERSP noted in its decision that the marketer had voluntarily discontinued certain claims made at Facebook and in consumer testimonials.

Broadcast, Internet and radio advertising for the product came to the attention of ERSP – which reviews direct-response advertising in all media – through ERSP’s ongoing monitoring.

Performance claims at issue in ERSP’s review included:

“Everyone can lose weight with RightSize…” and “Lose weight, Not Taste”
“Lose pounds as you cut calories without feeling hungry!”
“Only RightSize products contain Appemine - the hunger smashing ingredient that is an all natural thermogenic appetite manager.” [Facebook]
“Reduce your calorie intake safely”
“Lose pounds and inches effectively”
“Patented formula to maintain stable glycemic (blood sugar) levels.”

ERSP also reviewed claims included in consumer testimonials, including:

“After the first month, I had lost 30 pounds. After 6 months, I was down 80 pounds. Today I'm proud to say I've lost a total of 153 pounds since starting.”
“In two years I have lost 102 pounds.”
“I’m down 50 pounds and 5 dress sizes in 90 days!”
“When I turned 40, I knew I finally had to lose weight. I lost 16lbs.”
“I have been using Right Size for 13 months and have lost 48 pounds.”
“Weight Lost: 50 lbs. The only change I’ve made with RightSize is to drink a smoothie in the morning. *by replacing breakfast with a smoothie, she was able to lose weight through reducing calorie intake. Results not typical.”

ERSP noted in its decision that the marketer provided more than 70 published studies on the efficacy of the various individual ingredients contained in RightSize Smoothies, including one study on the safety of a meal replacement group versus a traditional food group. ERSP determined that the marketer’s evidence provided adequate support for the claims that the advertised RightSize Smoothies plan will safely and effectively reduce the daily caloric intake of consumers when used as a meal replacement.

Following its review of the evidence in the record, ERSP determined that the advertiser could support the performance claims at issue. With respect to the claim relating to Appemine, ERSP noted in its decision that the advertiser voluntarily removed that claim from its Facebook advertising.

Further, the advertiser asserted that it had removed from its advertising all testimonials at issue.

The company, in its advertiser’s statement said it appreciated “ERSP calling to our attention specific weight loss amounts associated with some of our testimonials and regulations against such practices. As noted, we have proactively made modifications to our website to rectify this issue.”

The Mobile Movement: Understanding Smartphone Consumers

2011-05-04T13:24:00.000-04:00

Google recently produced a great video on marketing and smartphone consumers based on a study conducted by Google and Ipsos in 2010. It has some rather amusing and impressive stats and does a great job highlighting the multitasking of today's generation (39% use their phone while in the bathroom), how important smartphones are becoming (1 in 3 would give up chocolate before their phone), and how more and more people are beginning to use their phone to help shop (74% make a purchase based on a smartphone search; 35% of which make a purchase from their smartphone itself). It really reinforces the importance of having mobile versions of sites (79% don't) and how mobile search shouldn't be overlooked as a form of marketing.

Definitely check it out:

The Very Best of Ralph Nader

2011-04-27T15:51:00.000-04:00

ERSP Director Peter Marinello wrote an article, "The Very Best of Ralph Nader," featured in April's Electronic Retailer magazine - read it here.

FTC Files Complaints Against Affiliate Marketers of Acai Berry

2011-04-19T16:16:00.000-04:00

The Federal Trade Commission announced today that it is seeking to take action against 10 online affiliate marketers of acai berry products. The FTC alleges that the marketers have been using fake news blogs, which often included links to and logos of legitimate new organizations, as a way of "...enticing consumers to buy the featured acai berry weight-loss products from other merchants." According to the FTC, even the comments posted in response to "blog" posts were fake and purportedly written by the marketers themselves.

The ads in question (“Acai Berry Diet Exposed: Miracle Diet or Scam?”) were featured prominently on popular websites. The marketers spent more than $10 million in placing the ads on these sites, but the FTC believes the commissions more than made up for the cost.

For more details, see the FTC's press release: http://www.ftc.gov/opa/2011/04/fakenews.shtm

ERSP at IILP's Advertising and Media Law Seminar

2011-04-07T12:51:00.000-04:00

ERSP attended New York Law School's Institute for Information Law and Policy's Advertising and Media Law Seminar on April 4th.

The panels covered everything from mobile media marketing to the logistics of carrying out an international advertising campaign, all from a legal perspective. The speakers brought up several timely questions (Is a "Like" an endorsement? To what extent should marketers be held responsible for user-generated content?) and offered some interesting, and surprising, stats (Mobile devices outshipped PCs in Q4 2010).

With the explosive growth in mobile media marketing and other new forms of advertising (a topic for another day), direct response advertisers, often at the forefront of these developments, will likely start adapting to the changing market. As advertisers and marketers branch into this uncharted territory, it'll be interesting to see how some of the legal questions will be addressed and ultimately, answered.

PR: Hindsight Nutritionals Participates in ERSP Forum - ERSP Finds Support for Certain Claims; Recommends Marketer Modify Certain Claims

2011-04-06T10:00:00.000-04:00

New York, NY – April 6, 2011 – The Electronic Retailing Self-Regulation Program (ERSP) has determined that Hindsight Nutritionals, marketer of the Evercleanse System, provided adequate support for general weight loss and establishment claims, but recommended the marketer modify certain claims.

The marketer’s advertising came to the attention of ERSP pursuant to its ongoing monitoring program.

ERSP reviewed broadcast, online, and radio advertising for Evercleanse, and identified several claims for review, including:

Performance Claims

· “Lose the waste. Lose the weight”

· “How hard is it to lose 10 to 30 pounds or more?”

· “…but there is a safe, fast, and effective way to lose weight and keep it off, even if you’ve had trouble losing weight in the past.”

Establishment Claims

· “200% more weight loss!”

· “Evercleanse is a trusted brand that's been around for years, backed by scientific studies and serious clinical trials”

· “Scientifically developed and clinically proven means you can cleanse, detoxify, burn away fat and lose up to 200% more weight than diet and exercise alone.”

· “scientifically proven to lose 200% more weight”

· “In addition, the cleansing and detoxification program, is designed to work with Evercleanse Slim a weight loss component powered by 7-Keto, the only natural dietary supplement for weight loss, whose efficacy and safety is supported by published scientific research.”

· “Evercleanse Slim contains a patented ingredient known as 7-Keto. This powerful, stimulant-free weight loss formula is backed by published clinical studies which show : When combined with a healthy diet and exercise program, a 200% greater weight loss than diet and exercise alone; 7-Keto is clinically proven to help reduce body fat and body weight.”

Consumer Testimonials

· “The results have been astonishing, I have lost 18 pounds, my appetite has lessened and I am more regular than ever before, thanks EverCleanse” [Lori, CA]

· “EverCleanse is a great product! I lost weight and have never felt better.” [Janice, FL]

· “If this weight loss keeps up, I am going to be able to fit into my wedding dress from 20 years ago” [Claire, CA]

At the outset of ERSP’s inquiry, Hindsight Nutritionals asserted that it is no longer advertising on television and radio and it is in the process of reviewing its remaining advertising for Evercleanse products. Hindsight Nutritionals informed ERSP that it has removed one of the consumer testimonials that included quantified weight loss claims.

As support for the general weight loss and establishment claims at issue, Hindsight Nutritionals referenced previous ERSP reviews of products containing 7-Keto DHEA, the main ingredient in Evercleanse Slim, and provided the same clinical studies as evidence. Since Evercleanse Slim contains an identical amount of 7-Keto DHEA as used in the studies, ERSP saw no reason to deviate from its earlier decisions, and found the evidence to provide adequate support for the general performance claims.

ERSP determined that it is important for consumers to be provided with a qualified context for advertising claims. Specifically, ERSP recommended that Hindsight Nutritionals modify claims to include a basis of comparison (e.g., “lose up to 200% more weight than diet and exercise alone”).

Additionally, ERSP noted that Hindsight Nutritionals should clearly distinguish its Evercleanse Slim product, the subject of the clinical studies submitted, from its Evercleanse cleansing and replenishing products in an effort to help consumers understand that the “clinically proven” claims reference Evercleanse Slim alone.

The company, in its marketer’s statement, said, “Hindsight Nutritionals supports the work of the NARC and specifically the Electronic Retailing Self-Regulation Program and their efforts to ensure integrity in the direct response industry. Hindsight feels the inquiries made as part of this review were good and helpful in providing additional insight into the perception of our advertising. Going forward we will endeavor to separate any references to clinically or scientifically proven from our colon cleansing products and our weight loss product.”

Online Privacy: FTC & Google Reach Settlement

2011-04-01T15:25:00.001-04:00

On Wednesday, the FTC announced it had reached a settlement with Google concerning the company's social network, Google Buzz. The terms of the settlement require Google to "establish and maintain a comprehensive privacy program" and that it "have audits conducted by independent third parties every two years to assess its privacy and data protection practices."

As online privacy becomes an increasingly popular topic of conversation, we're likely to see more regulatory decisions regarding the rights of consumers online.

Affiliate Marketers

2011-03-22T15:46:00.004-04:00

Last week, Legacy Learning Systems reached a settlement with the FTC regarding its affiliate marketing.

Here's a snippet from the FTC's press release on the case:

"According to the FTC’s complaint, Legacy Learning advertised using an online affiliate program, through which it recruited “Review Ad” affiliates to promote its courses through endorsements in articles, blog posts, and other online editorial material, with the endorsements appearing close to hyperlinks to Legacy’s website. Affiliates received in exchange for substantial commissions on the sale of each product resulting from referrals. According to the FTC, such endorsements generated more than $5 million in sales of Legacy’s courses.

The FTC charged that Legacy Learning and Smith disseminated deceptive advertisements by representing that online endorsements written by affiliates reflected the views of ordinary consumers or “independent” reviewers, without clearly disclosing that the affiliates were paid for every sale they generated."

This settlement highlights a growing problem facing direct marketers today - monitoring their affiliate marketers. Under the consent order, Legacy will have to set up a system to oversee its affiliates to ensure they're complying with FTC rules.

It's something you see all the time - websites devoted entirely to a fake review of a product. Some are particularly clever and initially seem negative, but quickly do a 180 and by the end, they often link to a "Buy It Now" page. For consumers, this can be confusing. After all, nothing is more convincing than someone who's skeptical about a product, tries it, and is converted. Some websites, in order to curb fake reviews, even have icons to indicate reviewers who are verified or confirmed purchasers of the product.

These fake reviews may have consumers thinking twice about what they read online and are likely to land marketers in hot water. Regulators are only just starting to pay attention to online reviews (see also: NY AG's investigation of Lifestyle Lift) and it's probably just the beginning of enforcement actions.

What's interesting about the Legacy Learning case is that the FTC held Legacy itself accountable for the actions of its affiliates, even though its contract explicitly stated "affiliates should 'comply with the FTC guidelines on disclosures.'” (Source) Marketers who do not currently keep an eye on their affiliates may want to start doing so as this settlement demonstrates that passing off responsibility to the affiliate via contract doesn't necessarily absolve the marketer from its responsibility to be sure all advertisements and such are in compliance.

ERSP Featured on Walletpop.com

2011-03-21T15:42:00.001-04:00

ERSP was featured in an article on Walletpop.com regarding its review of the Belly Burner.

Here's a link to the full article: http://www.walletpop.com/2011/03/18/belly-burner-belt-doesnt-seem-to-melt-pounds-ad-watchdog/

ERSP Reviews Advertising for Belly Burner; Recommends Marketer Modify Certain Claims

2011-03-18T14:51:00.001-04:00

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that 2 Elevens, LLC, modify certain advertising claims made in direct-response advertising for the Belly Burner weight-loss belt.

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). Advertising for the Belly Burner, a neoprene belt that is sold with an exercise DVD and diet plan, came to the attention of ERSP through ERSP’s regular monitoring of direct-response advertising.

ERSP reviewed advertising claims made in broadcast and online advertising, including:

Performance Claims

· “Burn fat faster while: walking; biking; jogging; any form of exercise!”

· “Get rid of belly fat and have amazing abs”

· “It safely and naturally generates more heat which increases your metabolic rate and speeds up the calorie burning process which means more weight loss!”

· “Just wrap up and slim down”

· “You have nothing to lose but pounds and inches”

· “Burns more calories faster”

· “The belly burner increases your thermal core temperature to shed away unwanted inches.”

· “Heat vision photography shows how the belly burner raises your body’s core temperature supercharging the calorie burning process and accelerating the fat burning energy needed to trim down those love handles and belly fat.”

· “get your amazing weight loss belt now”

· “With The Belly Burner you will lose inches around your waist and love handles just by wearing it during your daily activities or exercise.”

· “…increases your thermal core temperature to shed away unwanted inches”

Consumer testimonials

· “Lost 60 pounds & 12 inches in just 10 weeks” [Debi Mazar]

· “Lost 6 belt sizes in 8 weeks” [Carlos Mencia]

ERSP also expressed concern regarding the omission of material information in the consumer testimonials regarding the generally expected product performance.

In this case, the marketer argued that its claims clearly disclosed that results were based on the use of the Belly Burner belt in conjunction with a meal plan, calorie counter and exercise DVD.

Following its review of the advertising, however, ERSP determined that consumers could take away the message that use of the Belly Burner belt alone could produce the advertised results. ERSP recommended the marketer modify its advertising to more clearly and conspicuously disclose that the results depicted are based on a consumer’s use of all program components.

As support for its performance claims, the advertiser submitted a third-party “thermographic” study on a single person. The advertiser contended that thermographic images demonstrated that the Belly Burner increased the user’s thermal core temperature. In addition, the marketer also presented ERSP with a calorimetry study that showed an increase in the per-minute rate of calorie expenditure.

ERSP noted that while the thermographic images produced during the study indicated that using the Belly Burner during routine physical activities will increase the temperature of the subject’s abdominal area, it nevertheless concluded that the marketer did not adequately show that the images were representative of typical product performance. ERSP determined that the images did not provide a reasonable basis for claims of increased fat burning, calorie burning, or inches lost, and recommended that the marketer modify the advertising to clearly reflect the relevancy of the images.

The marketer said it was in the process of discontinuing the two testimonials at issue. ERSP confirmed these testimonials no longer appear in the streaming video on the Belly Burner Website.

In its marketer’s statement, 2 Elevens, LLC strongly disagreed with ERSP’s determinations, but said “…future advertisements [will] contain reference to adherence to all of the component aspects of the Belly Burner product…”

ERSP Director Peter Marinello at ERA Great Ideas Summit

2011-03-16T11:24:00.000-04:00

Peter Marinello, Director of ERSP, discusses the self-regulation program and its role in the direct response industry.

ERSP Featured in The Tan Sheet

2011-03-10T11:25:00.000-05:00

A couple of ERSP's recent decisions (Dentagen and Sunset Health) were featured in The Tan Sheet. If you're a subscriber, please check them out!

Self-regulation in Ad Age

2011-03-08T13:03:00.003-05:00

Ad Age just released its latest issue, which happens to focus on advertising self-regulation. There are a couple of great stories you can read online at www.adage.com, one of which is the editorial Self-regulation Is a Success but Must Be Guarded - http://adage.com/article/print-edition/regulation-advertising-industry-guarded/149209/. Check it out.

ERSP at ERA's Great Ideas Summit 2011

2011-03-03T12:04:00.107-05:00

ERSP Director Peter Marinello and ERA's President and CEO, Julie Coons

We just got back from the ERA's Great Ideas Summit 2011 (http://www.eragreatideas.org/) which took place over the past couple of days in New Orleans.

ERSP had a booth in the exhibit hall where we were able to put the word out about the program and self-regulation. People from all the different facets of the DR industry were represented - manufacturers, agencies, buyers, media - and it was great to get a few minutes to talk to each of them.

Check out our report on the conference after the jump.

We attended a handful of the education sessions as well. Here are some of the key takeaways from each panel:

The Wait is Over: National Interactive TV is Finally a Reality!
- One of the trickiest parts of broadcast advertising these days is to counter the DVR/online video viewers' ability to skip commercials.
- Through free samples and coupons, advertisers are hoping that they can keep couch surfers in their seats during commercials breaks. Advertisers hope to introduce polling and trivia in the future.
- Interactive TV enables viewers to get more info or sign up for an offer through two clicks of the remote.
- Interactive ads have 10 times the click through rate as online ads with free samples being the most popular offer.
- The greatest difficulty in increasing the accessibility of interactive TV is installing the software on the 50+ types of set-top boxes.
- Interactive ads allow for better data collection on response rates and on shows' viewership.
- This new platform will enable advertisers to begin to cater ads to households. e.g., a family with a cat will see a cat food commercial while a family with a dog will see one for dog food.
- So far, interactive TV only allows for delivery of goods by postal mail, because the cable companies already have the customer's address on record. Eventually, companies will look to expand to electronic delivery.

Emerging Trends in Direct Social Marketing
- Social marketing is taking what works and putting it into social media, making it shareable.
- Social media is the easiest way to get free, quality referrals.
- The fastest growing advertising markets are mobile and video.
- The goal of using social media is not to sell, but to create more buyers - to let them come to the conclusion themselves that your product is one they'd like to buy.
- Social media is about conveying a message from one to many, unlike than most business interactions which are on a one to one basis.

Turning a Direct Miss Into a Direct Hit
- Emphasis on testing before the roll-out of a DR campaign.
- Multivariate testing - changing several elements on a landing page to record separate analytics for each variation.
- Sometimes what you think may work, doesn't. Or, it works for a completely different consumer group, maybe even one you weren't targeting.
- Key areas to test: pricing, BOGO offers, impact of a celebrity, etc.
- It's important to give consumers a choice in response. One company only offered a 1-800 number as an initial response, but saw a huge increase when it added a website as an option.
- Be your consumers, even going so far as to go through the process of ordering your product from the initial phone call to delivery.

ERSP Featured on Walletpop.com

2011-02-22T11:25:00.000-05:00

ERSP was featured in an article on Walletpop.com regarding its review of the iRenew bracelet advertising.

Check out the story here: http://www.walletpop.com/2011/02/18/irenew-balance-bracelet-backs-off-health-claims-group-says

ERSP Reviews Advertising for iRenew Bracelet; Marketer Voluntarily Discontinues, Modifies Claims

2011-02-22T11:23:00.002-05:00

The Electronic Retailing Self-Regulation Program (ERSP) has noted that Harvest Trading Group, which markets the iRenew bracelet, has agreed to modify or discontinue a wide range of claims at issue in a recent ERSP inquiry.

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 iRenew bracelet, and identified several claims for review, including performance claims, establishment claims, and expert testimonials.

Further, ERSP was concerned by the omission of material information in the consumer testimonials regarding the generally expected product performance.

At the outset of ERSP’s inquiry, Harvest Trading Group asserted that the direct response advertising at issue was being discontinued and that future performance claims for the product, including claims related to strength, balance and endurance, would be made in more limited context.

Specifically, the marketer said it would discontinue its use of balance demonstrations and qualify future claims with language consistent with evidence, such as “may promote” strength, balance, and endurance. ERSP confirmed that Harvest Trading Group removed streaming video of the original broadcast advertising and consumer testimonials from its Website.

As support for the claims at issue, Harvest Trading Group provided ERSP with several studies, including a double-blind, placebo controlled, university study that tested the product on 100 subjects. The study found that the iRenew bracelet provided a significant decrease in the mean number of errors on a balance test as compared to placebo. Results also indicated that subjects were able to complete more bench press repetitions while wearing an iRenew bracelet than a placebo bracelet.

The company, in its marketer’s statement, said, “Harvest Direct 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 iRenew.”

CPSC to Release Searchable Database of Safety Reports

2011-02-17T15:55:00.000-05:00

On March 11, the Consumer Product Safety Commission (CPSC) will begin to make its online database of safety reports publicly available. According to the CPSC, consumers, child service providers, health care professionals, government officials, and public safety entities will be able to file safety reports online. Marketers then have the option to comment and both the reports and the marketer's response will be published in the database.

This adds a whole new level of transparency to consumer safety and it also demonstrates how important it is for companies to be responsive. Consumers are likely to appreciate a company that chooses to comment on a CPSC report more than one that does not make any such acknowledgement.

ERSP Case Reports Now Part of NARC's Online Archives

2011-02-15T15:09:00.000-05:00

The National Advertising Review Council's (NARC) Online Archives now include all 250+ ERSP case reports.

In addition to the ERSP case reports, NARC’s online searchable archives include a compilation of case reports from the other NARC supervised programs, including the National Advertising Division (NAD), the Children’s Advertising Review Unit (CARU) and the National Advertising Review Board (NARB).

If you're interested in signing up or getting more info about the Online Archives, check it out here: Online Archives.

ERSP at New York Social Media Meetup

2011-02-04T15:26:00.003-05:00

The ERSP team (the intensely focused duo at the back) at the Meetup.

ERSP attended the New York Social Media Meetup (http://www.meetup.com/Social-Media-NY/) event "Are You Breaking the Law?" which focused on regulatory compliance in social media. There was a great turnout and the event's speaker, Tom Chernaik, founder of Cmp.ly, addressed several compliance issues that businesses should be concerned about when posting on social media.

Tom Chernaik presenting at the Meetup.

The main question at the event was how and what businesses should disclose when using social media. Tom gave an excellent rundown of the FTC's Guides and provided a timeline showing the FTC's recent actions concerning endorsements.

The take-away from the event? Businesses, of any size and particularly those in heavily regulated fields like financial services, should always be careful when using endorsements on social media.

Social Media and Ethics

2011-01-26T13:20:00.007-05:00

Steven Seidenberg over at the ABA Journal wrote an interesting article ("Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous") about the potential legal ramifications for lawyers using social media.

Seidenberg makes several key observations regarding the grey area of ethics in social media. While the article caters mainly to lawyers who may not know if it's okay to friend a client, judge, or opposing counsel, it emphasizes that a user's actions in social media aren't exempt from the law.

For marketers, it's important to realize posts on blogs, Facebook, Twitter, etc. can be construed as advertisements and are subject to many (if not all) of the same standards that apply to print and broadcast. The FTC continues to regulate not just the "old media" markets, but social media as well, and it's latest revision of the Guides (2009) is likely to be just the beginning of the agency's attempt at regulating the digital world.

But, as Seidenberg points out, these rules present a bit of a problem - how do you comply with all the FTC testimonial and endorsement rules if you've only got 140 characters for both your message and a disclosure? Sure, it's easy to post a disclosure on a blog or a website, but posting disclosures on Facebook and Twitter can be difficult. Should you post several disclosures on your Facebook Page's Info section that pertain to all of your posts? (Would this be, as the FTC advises, clear and conspicuous?) How can you monitor all of your paid endorsers to ensure they are complying with the disclosure laws? Maybe you're thinking you should just forgo social media entirely?

It's possible that, in the future, social media platforms will adapt to advertisers' compliance needs, but with the lack of cases relating to social media advertising, there is no clear precedent for how to comply with the FTC Guides. Several online companies have begun to offer uniform disclosures in the form of a short URL that takes users to a separate, customizable disclosure page. An awfully creative solution, it hasn't quite caught on yet, and we don't know if it holds up under the FTC's Guides.

So what's the answer? It's simple - always think twice about what you're posting. Would a reasonable consumer take what you're saying as an advertisement or testimonial? Have you informed readers about any connection you have with the marketer? If you have even the slightest doubt, you may not want to submit that post.

PR: Sunset Health Participates in ERSP Forum; ERSP Finds Support for Certain Claims; Recommends Marketer Modify Certain Claims

2011-01-26T12:51:00.001-05:00

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Sunset Health Products, Inc., marketer of the Hollywood Cookie Diet, the Hollywood 48-Hour Miracle Diet, the Hollywood 24-Hour Miracle Diet and the Hollywood 15-Day DeTox, modify or discontinue certain advertising claims for its products. ERSP determined that the marketer could support certain claims and noted that the marketer represented that it had voluntarily discontinued certain claims.

Advertising for the Sunset Health products came to the attention of ERSP – the direct-response industry’s self-regulatory forum, through a consumer challenge.

Based on the challenger’s submission and a review of the broadcast and online advertising for the Hollywood Diet, ERSP identified the following core representations that served as the basis of the self-regulatory inquiry:

1. The Hollywood Cookie Diet:

Consumer/Testimonials

“I lost 30 pounds in 2 months just using The Hollywood Cookie Diet!” [Tad A, Fort Wayne, Indiana]
“I had tried every diet in the book. After 7 weeks on the Hollywood Cookie Diet, I achieved my goal weight, losing 14 pounds! I’m over the moon, thank you!” [Cataline L, London England]
“I lost 42 pounds on the Hollywood Cookie Diet.” [Jim L, Port St. Lucie, FL]
“I lost 5 pounds in 3 days on the Hollywood Cookie Diet.” [Debbie L, Stamford, CT]
“I’m 82 and I have lost 66 pounds. I’m the envy of all my friends at my retirement home. My doctor loves The Hollywood Cookie Diet.” [Mary Ann S, Wahoo, NE]
“I lost 21 pounds in 13 days. I feel great and I don’t even feel hungry after eating the cookies.” [Joe S, Ozone Park]
“I lost 7 pounds in 2 weeks. I travel extensively, so this is a really great option for me. I feel better about myself already!” [Joanne S]

2. The Hollywood 48-Hour Miracle Diet:

Performance Claim

“Lose up to 10 pounds in 48 hours. Success is only 48 hours away. Lose weight naturally, while you detox, cleanse and rejuvenate your body. An ideal jumpstart to any diet.”

Superiority Claim

“America’s # 1 liquid diet”

Establishment Claim

“Clinically tested”

3. The Hollywood 24-Hour Miracle Diet

Performance Claims

“Lose up to 5 pounds in 24 hours! Success is only a day away. Lose weight naturally, while you detox, cleanse and rejuvenate your body. An ideal jumpstart to any diet.”
“…#1 selling detox diet in the world!”

4. The Hollywood 15-Day Detox

Performance Claims

“When was the last time you gave your body an internal cleansing? Get rid of 5-10 lbs of toxic waste in your digestive system."
“The Hollywood 15 Day Detox is designed to cleanse the body while easily integrating with your daily routine.”

Following its review of the evidence in the record, ERSP recommended that Sunset Health qualify consumer testimonials for the Hollywood Cookie Diet to reflect the evidence in the record – that after two weeks on the Hollywood Cookie Diet the average amount of weight loss was approximately six pounds. ERSP noted in its decision that any consumer representation inconsistent with that amount “must be accompanied by a qualification that provides information pertaining to the marketer’s support for ‘typical’ or average results.”

ERSP determined that the testing evidence provided by Sunset Health provided a reasonable basis for the claims that its Hollywood 48-hour Miracle Diet has been “Clinically tested” and that users of the 48-Hour Miracle Diet can “Lose up to 10 pounds in 48 hours…”

ERSP noted that the advertiser had included disclosure language that stated “In a randomized, double-blind, placebo-based clinical trial of the Hollywood 48-Hour Miracle Diet 73.3% of the thirty (30) subjects lost 6 pounds or more and 13.3% lost 10 pounds or greater,” but recommended that the triggering claim – “Lose up to 10 pounds in 48 hours…” – should be accompanied by a symbol to alert consumers to the disclosure.

Regarding the Hollywood 24-Hour Miracle Diet, ERSP determined that the advertiser could support the claim “Lose up to 5 pounds in 24 hours...” ERSP noted that the marketer voluntarily discontinued the claim “America’s # 1 liquid diet.”

Finally, regarding the Hollywood 15-Day Detox, ERSP determined that the statement “The Hollywood 15 Day Detox is designed to cleanse the body while easily integrating with your daily routine” would not create any specific product performance expectations that could be relied on by consumers.

ERSP further noted that the marketer represented it would permanently discontinue the claim “When was the last time you gave your body an internal cleansing? Get rid of 5-10 lbs of toxic waste in your digestive system.”

Sunset Health Products, in its marketer’s statement, said it “supports the mission of the National Advertising Review Council’s Electronic Retailing Self Regulation Program.”

“We appreciate the recommendations made by the ERSP and have either already implemented or are in the process of implementing each of such recommendations,” the marketer said.

PR: ERSP Reviews Advertising for Dentagen's 'Proginicin;' Recommends Marketer Discontinue Claims at Issue

2011-01-24T11:48:00.014-05:00

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Dentagen Distribution, LLC discontinue claims in direct response advertising for “Proginicin Oral Multi-Indication/Cold Sore Treatment.”

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 following an anonymous challenge.

ERSP reviewed online advertising for the product, which was targeted to dentists and oral hygienists, and identified a wide range of claims for review, including:

“…PROGINICIN, a treatment for gum disease and dental procedures based on the ingredient, Viracea.”
“PROGINICIN is indicated for use on any sore or infection in the oral cavity including herpetic lesions. Reported results are remarkable when used on all grades of gingivitis.”
“PROGINICIN can be used on cold sores. Patients report that PROGINICIN is effective in preventing some eruptions, and reduces discomfort after blistering.”
“PROGINICIN is also indicated for use on gingival cuts, abrasions, herpetic lesions (including cold sores), and all grades of gingivitis, including ANUG.”
“PROGINICIN is outstanding as a treatment for gingivitis. YOU AND YOUR PATIENTS WILL BE AMAZED AT HOW QUICKLY IT WORKS!”
“PROGINICIN may relieve cold sores symptoms. When used at the first sign of an eruption, it may prevent the eruption and painful blistering.”
“The wound healing period for ulcer sores was shortened by the same amount of time with implant patients.”
“With treatment of PROGINICIN the period to achieve healing ranged between 3 to 5 days. Usually it takes 7 to 14 days to achieve the same grade of healing.”
“Usually, gingivitis symptoms might be improved after one week, with correct dental hygiene using toothbrush and dental floss. However, with the use of PROGINICIN the main aspects of gingival inflammation, including pain, gingival bleeding and swelling disappeared in one day.”
“Gingivoplastic surgery is a common procedure for patients with hyperplasic gingiva. This intervention causes an inflammatory process which can be largely improved by the application of a few drops of “PROGINICIN.”
“The present report showed that the main aspects of mouth soft tissues inflammation including pain, gingival bleeding and swelling were largely improved in a shortened time, by the application of a few drops of “PROGINICIN,. In addition, with treatment of “PROGINICIN, the period to achieve healing was noticeably reduced, demonstrating that it is an effective treatment option.”
“I saw a female patient with periodontal abscess on the mesial facial of #4. I debrided the periodontal pocket and was able to slip the thin neck of the “PROGINICIN applicator under the tissue. I slowly irrigated with “PROGINICIN. Two days later the swelling was gone and the periodontal abscess was totally resolved. I know of no other product that would do this.”
“I can heartily recommend “PROGINICIN for the eradication of any type infected wound in and around the oral cavity.”

As support for the claims at issue, Dentagen provided ERSP with a randomized, double-blind, placebo controlled, multi-center clinical trial for a product called RELEEV, which shares the same active ingredient – Viracea – as Proginicin. The primary purpose of the clinical trial was to determine whether RELEEV was effective as a topical treatment of the herpes simplex virus. One hundred fifty-seven (157) subjects between the ages of 18 and 65 completed the study. The authors of the study concluded that when used as directed, RELEEV relieved the symptoms of cold sores and was shown to be a safe and effective treatment of recurrent herpes simplex infection when compared to placebo.

(Full text of decision available to media, upon request)

ERSP questioned in its decision whether the study’s results could serve as support for the advertising claims made for Proginicin. ERSP noted that while the products share the same active ingredient, Dentagen did not confirm that Proginicin contains the same amount of Viracea contained in RELEEV or offer evidence regarding other ingredients in Proginicin that could offset the effectiveness of the Viracea ingredient.

Further, the RELEEV study was limited to the treatment of facial cold sores, not lesions inside the mouth.

In the absence of any reliable evidence to support these express claims, ERSP recommended that the marketer discontinue all of the claims at issue.

The company, in its marketer’s statement, said “…we are in the process of reviewing our advertising for Proginicin and will use our best efforts to implement the recommendations provided by ERSP.”

ERSP on Electronic Retailer Cover - August 2010

2010-08-05T12:25:00.000-04:00

Peter Marinello, Director of ERSP, details the history and growth of ERSP, now in it sixth year.

This article appeared as the cover story of ERA's August 2010 edition of the Electronic Retailer. You can read the full story on ERA's site here: http://www.electronicretailermag.com/er0810_cover/

"New Media" Provisions of Revised FTC Endorsement and Testimonial Guides

2009-11-12T16:44:00.006-05:00

The Federal Trade Commission recently announced that it has approved final revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 C.F.R. Part 255), which address endorsements and testimonials by consumers, experts, organizations, and celebrities in advertising.

The revised Guides (which have an effective date of December 1, 2009) add "new media" examples to illustrate the longstanding principle that "material connections" (e.g., monetary payments) between advertisers and consumer endorsers must be disclosed.

For more of this great article and how ERSP has addressed this development please follow here http://www.venable.com/new-media-provisions-of-revised-ftc-endorsement-and-testimonial-guides-10-20-2009/

ERSP in the News

2009-10-14T15:11:00.004-04:00

Here are a couple of recent articles featuring ERSP:

Vibrant White tooth whitener:

http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=113575

ViLift anti-depressant formula:

http://www.naturalproductsmarketplace.com/news/2009/10/ersp-urges-nathans-stop-mood-claims.aspx

Final Smoke quit spray:

http://www.naturalproductsinsider.com/news/2009/08/final-smoke-modifies-marketing-claims.aspx?tw=20091014122240

TELL ME WHO ARE YOU….? (BECAUSE I REALLY WANT TO KNOW)

2009-10-14T12:55:00.001-04:00

How delicious was the irony of Roger Daltrey, lead singer for The Who, being selected as one of the headline speakers at the 56th Annual International Advertising Festival this past June? It was Daltrey, after all, who about thirty years ago asked the “Who Are You” question that today has become the hot potato for the regulators of viral marketing, more specifically, how and should it be disclosed who is doing all this talking?

Sometime later this summer or early fall, the Federal Trade Commission is prepared to alter the marketing landscape by releasing its revised FTC Guides Concerning the Use of Endorsements and Testimonials and one of the “deceptions de-jour” that the Commission will confront head-on is the failure of a blogger or spokesperson to disclose a material connection to those listening in on the “conversation.”

As we know, there are certainly other things at stake here with the proposed revisions to the FTC Guide besides disclosure of a material connection between the “talker” (or “influencer” as my friends at the Word of Mouth Marketing Association, aka WOMMA refer to them) and that special someone that we don’t (but should) know about. For example, at the top of the list is, of course, the much-discussed “typicality” disclosure issue. But let’s set aside the typicality debate (or is it “atypicality”) for the moment and applaud something that we can all agree on (I think): Transparency!

Its like breath of fresh air for us all out there, isn’t it? Now, granted, I come from the world of advertising self-regulation. A world predicated on good faith efforts and the voluntary cooperation of advertisers. We subsist on being transparent in what we do and, in fact, we make it a point of letting the outside world see the good and the arguably not-as-good work we do by making our case decisions available to the outside world. In fact, I believe the fundamental integrity of effective self-regulation is based on being transparent and that’s why we at the Electronic Retailing Self-Regulation Program welcome the efforts that marketers will be sure to take at becoming more transparent.

Sure, there are concerns out there about the shelf-life of word-of-mouth-marketing if there is some kind of draconian imposition of disclosure to the message being communicated. Advocates of unbridled word-of-mouth argue that such disclosure is counter-intuitive to the spirit of viral marketing – i.e., the genuineness of spontaneity and disassociation from mother ship and ultimately, that marketing is not truly “word-of-mouth” if the someone who is “spreading the word” is essentially an agent-for-hire. Well, I’m not buying the argument that requiring disclosure would rain on the parade of word-of-mouth marketing. The alternative of not knowing (and the subsequent realization) that someone has a material connection to the subject of our conversation would be much more damaging to the relationship with the consumer, right? One of the specific Codes of Conduct espoused by WOMMA pertains to the Honesty ROI: honesty of relationship, opinion and identity.

It’s actually this “material connection” question that has muddied the waters in word-of-mouth and become the real source of consternation. In fact, there is a long history of efforts to ensure that consumers have the appropriate information about material connections - i.e., infomercials using consumer reporter formats, call-ins to home shopping networks by employees and testimonials by family members and co-owners. This is just the latest “material connection” issue. More are sure to come…

It’s also important to note that any marketer who compensates a third-party consumer for communicating a message to another consumer without disclosing that the “word-of-mouth” is paid for already violates section 5 of the FTC Act which prohibits unfair and deceptive practices. So give the FTC a little credit here because they are deliberately trying to provide us with some up front guidance - when nothing really requires them to do so.

One of the real compelling aspects to this issue is when determining if the compensation is of substantial enough value to be “material.” One example proposed by the FTC involves a blogger who is provided with a free copy of video game and then writes a positive review of the game. The proposed verdict? - Material connection. Another proposed example involves an infomercial producer including consumer endorsements for an automotive additive product featured in a commercial, but because the product has not yet been sold, there are no consumer users. Extras interested in endorsing the product and who will receive a small payment are considered as having been “materially compensated” (because viewers would not expect that these ‘‘consumer endorsers’’ are actors being compensated to appear in the commercial). What about the kid who signs up to be part of a ‘‘street team’’ program that receives points that can be exchanged for prizes each time he or she talks to his or her friends about a particular advertiser’s products? This borders on something called “astroturfing,” and the proposed revisions to the Guides would find that requires disclosure is necessary because the connection is considered “material” to the listener.

The true lesson to be learned here is that bloggers and street journalists are now in the epicenter of the regulatory debate regarding disclosures about their relationship to products and marketers and the long-standing practice of employing third-party spokespeople is being closely scrutinized. So with increased liability heading straight toward the word-of-mouth marketer, the time is right to take stock and carefully examine practices and procedures to help address the disclosure issue up front. Written guidelines between agencies and clients, agreements with outside third-party experts or celebrity spokespeople should be considered as part of the equation.

The new age of transparency and disclosure will hardly mean the death of word-of-mouth marketing and as with any true day of reckoning, the strong and the brave will survive. Now, somewhere along the line will a well intentioned Cyrano de Bergerac be forced to disclose his connection in a relationship with a consumer he’s hoping to court? Maybe, but this ultimately will be a small sacrifice for an industry that so greatly treasures the priceless relationship between the marketer and its consumer.

Hot off the Presses!

2009-09-11T17:16:00.004-04:00

A recent ERSP case involving product review websites has gotten lots of press, take a look at the following links for more:

http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=111488

http://www.naturalproductsinsider.com/news/2009/08/urban-nutrition-modifying-web-sites-following-ersp-review.aspx

http://outspokenmedia.com/internet-marketing-conferences/marketing-compliance-and-enforcement/#more-2909

http://www.pcmag.com/article2/0,2817,2351456,00.asp

http://econsultancy.com/blog/4409-blogger-freebies-will-disclosure-be-enough-to-ward-off-the-feds

As Seen On TV!

2009-09-11T17:10:00.004-04:00

ERSP Director Peter Marinello makes an appearance in CNBC's excellent special on the direct response industry.

http://www.hulu.com/watch/69482/cnbc-originals-as-seen-on-tv

ERSP in the New York Times

2009-08-14T15:50:00.004-04:00

http://www.nytimes.com/2009/08/11/business/media/11adco.html