ERSP Recommends Intellibiz Modify Certain Claims for Real Estate Education Program; Company Agrees to Do So

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Intellibiz modify or discontinue certain claims for the “Simple Man’s Guide to Real Estate” investing course.

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

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

• "Give me 30 minutes and I guarantee I can teach anyone how to make at least $5,000 in 14 days" - Bill Vaughn
• “Earn a minimum of $100,000 each and every year you use our program, working only part-time, or we will send you a check for double the purchase price, no questions asked.”
• “The only COMPLETE Real Estate Investor Training Program Outperforming every other real estate investing course since 1989”
• “Best guarantee in the business!”
• “Homero Guerrero pocketed this certified check for $10,000 in less than 2 weeks (wholesaling)”
• “Angela Pockets $150,000 On First Deal”

ERSP was also concerned about the omission of clear and conspicuous disclosures concerning the typical results consumers can generally expect to achieve.

Although ERSP was not troubled by claims describing the general performance methods included in the advertised real estate investment program, ERSP found that the specific quantified earnings created real income expectations for consumers that required substantiation and could not be adequately qualified by a single disclosure stating, “Results may vary from one transaction to another.”

In response to ERSP’s initial inquiry, the marketer addressed certain concerns raised by ERSP.  ERSP recommended that the marketer discontinue earnings and performance claims presented in a comparative context, although ERSP did agree with IntelliBiz that its “Best guarantee in the business!” claim would be interpreted by consumers as statement of puffery.

Finally, ERSP recommended that the marketer clearly and conspicuously disclose additional qualifying information when communicating earnings representations using consumer testimonials to provide more clarity to consumers regarding generally expected results.

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

ERSP Recommends Rich Dad Education, Inc. Modify Certain Testimonials Claims for Real Estate Education Program

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Rich Dad Education, Inc.,  modify or discontinue certain claims made in student testimonials featured at the  Rich Dad Education website.

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

ERSP reviewed advertising claims that included:

• “Rich Dad Education's Free Workshops are eye-opening, 2-hour sessions with the definite potential to change your life for the better!”
• "FinFreedomBound – Profit: $72,500”
• “WholesalePro – Profit: $20,383”

ERSP also reviewed claims made during free live seminar events, including:

• Claims that the presenter would teach consumers how to do a wholesale real estate deal and make $10,000 in the next 60 days

ERSP was primarily concerned with the specific quantified profits earned by former and current students that are being featured on the “Real Estate Deals” tab of the website. ERSP noted that there appear to be two different categories of deals – “Deals of the Month” and “Most Recent Deals.” The only apparent distinction between the two categories is that the “Most Recent Deals” contains an asterisk that leads to a disclosure at the bottom of the webpage. With respect to the “Deals of the Month” category, there is no apparent accompanying disclosure language to indicate whether or not these particular results are typical, and, if not, a disclosure of the amount of money they may expect to earn from using the program.

In general, when reviewing direct response marketing in the real estate investing industry, ERSP takes a broad approach and looks at the messages communicated as a whole, across all medium of marketing. Generally, the key issue before ERSP in this particular product category is whether the advertising at issue conveys specific express or implied earnings expectations to consumers, aside from the general message that they could earn money using the techniques outlines by the program.

In this instance, ERSP noted its concern about the lack of any clear and conspicuous disclosures concerning the typical results consumers can generally expect to achieve from using the product.
ERSP as well determined that the performance claims that formed the basis of inquiry did not communicate any specific express earnings expectations for consumers besides the general message that they can earn money using the techniques taught at the Rich Dad Education program.

ERSP acknowledged that the marketer possesses survey results to demonstrate that students of Rich Dad do indeed experience success. However, ERSP noted that the potential for consumer uncertainty exists because the disclosure in the advertisement notes that the stated results are predicated on the purchase of advanced training courses and this may not be apparent to a consumer who is simply interested in the free live event and the possibility of earning supplemental income.

ERSP recommended that the marketer refrain from making quantified earnings claims without clearly and conspicuously disclosing what students of the program can typically expect to earn. ERSP additionally recommended that Rich Dad discontinue the use of such unverified testimonial claims in its advertising material and at free live seminars.

The company, in its marketer’s statement, said that it “takes seriously our obligations to our students and the consuming public and strive to be honest, open, and in compliance with our legal obligations” and that it “has removed the ‘Real Deal from Real Estate Investors in Real Estate’ webpage from its website for reasons independent of ASRC’s Review and it is our present intention not to host such a page on our website in the future whereby it could be construed that Rich Dad Education was making implied claims regarding the amount of monetary success achievable by our students without ensuring that all appropriate disclaimers were provided.”

ERSP Finds Guthy-Renker Can Support Performance Claims for “Cold Plasma Sub-D”

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Guthy-Renker can support performance claims for Cold Plasma Sub-D, a topical cream intended to sculpt and tighten the appearance of skin along the chin and jawline.

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

ERSP reviewed broadcast and online advertising claims for Cold Plasma Sub-D, including: 

• “Results you can expect to see [are]: Visibly tightening of the appearance of sagging, loose skin and improved appearance of double chin”
• “Visibly more crisp appearance of the chin and jawline, imparting an overall more youthful looking face"
• “Visibly improved appearance of lines and wrinkles on the neck and décolletage with noticeable improvement in overall skin texture”
• “Sub-D is specifically formulated for the area called the submandibular. Often neglected, the skin in this area has unique needs and Cold Plasma Sub-D helps tackle the most common signs of aging on the chin, jawline, neck, and décolleté."
• “I saw results within a week.”

As support for the performance and establishment claims at issue, the marketer submitted the results of consumer usage studies conducted on the product itself. Guthy-Renker also provided ERSP with several articles on the benefits of the individual ingredients in Cold Plasma Sub-D contained in the product formulation as support for its position.

While ERSP did conclude that, based upon the collective materials in the case record, the marketer provided adequate support for its general performance claim that specified the specific benefits from using Cold Plasma Sub-D, ERSP determined that it would be material for consumers to know that the claim was based on a consumer usage study and, accordingly, this information should be disclosed conspicuously, in close proximity to the claim.

ERSP noted Guthy-Renker’s voluntary modifications to the two consumer testimonials at issue in the subject matter (“After six weeks, my jawline appeared more defined and the sagging, loose skin under my chin is tighter and has a more youthful appearance" and “I saw results within a week.”). Although the marketer maintained that the depiction of product performance after one week was not a core claim in the advertising, ERSP did not agree. It was concluded that the communication of product performance that can be typically expected by consumers is a fundamental and pivotal component of the Cold Plasma Sub-D advertising. ERSP also determined that the marketer’s commitment to voluntarily modify the consumer testimonial attesting to the expected results “within a week” of using Cold Plasma Sub-D to more clearly communicate the limitations of the consumer usage study was warranted. 

The company, in its marketer’s statement, said, “Guthy-Renker is very pleased with ERSP’s determination that all of the challenged claims for Cold Plasma Sub-D are substantiated, and that the changes Guthy-Renker voluntarily agreed to make in relation to certain disclaimers are appropriate. Guthy-Renker is a long-time supporter of the self-regulatory process and appreciates ERSP’s review.”

ERSP Finds La Lumiere Can Support Certain Claims for ‘illuMask’ Acne Treatment, Recommends Marketer Modify Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that La Lumiere, LLC, can support performance claims for illuMask, a device intended to help treat acne. However, ERSP recommended that the marketer clarify its money-back guarantee claims.

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

ERSP reviewed broadcast and online advertising claims for illuMask, including:

• “Get clear and stay clear."
• “Just …put on the mask and get clear.”
• “Get a clearer complexion and fewer breakouts with the illuMask Anti-Acne Light Therapy Mask.”
• “Bringing the Power of Light Therapy Home”
• “Safe, effective and effortless treatment for less than a dollar a day.”
• “Blue light energy kills the light sensitive P. acnes bacteria on and below the skin surface while the red light boosts your natural skin cell turnover and healing process to reduce swelling, inflammation, and redness.”

As support for the performance and establishment claims at issue, the marketer provided ERSP with testing on the product, evidence of its FDA 510(k) clearance, and information concerning the effectiveness of red and blue light therapy. Following its review of the evidence in the record, ERSP determined that the marketer supported its “Get Clear. Stay Clear” messages.

ERSP reviewed two short-form commercials in which money-back guarantee claims were made. In one version, the marketer clearly presented its 30-day, money-back guarantee while the other presented the guarantee as a 90-day guarantee appeared to be inconsistent with the specific terms of the 30-day, money-back offer provided on the website.

ERSP recommended that the marketer reconcile the use of the two different guarantees that are communicated in the broadcast advertising and include a disclosure that either provides the specific terms of the money-back offer or directs consumers to the illuMask website for the specific details. 

The company, in its marketer’s statement, said, “La Lumiere appreciates ERSP's review and confirmation of the illuMask claims.  ...  La Lumiere is committed to improving people's lives by way of light therapy and making this technology affordable and accessible to consumers everywhere.”

ERSP Recommends Nick Vertucci Real Estate Academy Modify Certain Claims for Real Estate Education Program; Company Agrees to Do So

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Nick Vertucci Real Estate Academy modify or discontinue certain claims for the Nick Vertucci Real Estate Academy education program.

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

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

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

ERSP reviewed advertising claims made in radio advertising and at two of advertiser’s websites that promoted Nick Vertucci as a real estate investment expert who could teach customers how to make money with real estate investing through courses and training.

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

However, ERSP was concerned with representations regarding the implication that customers of the Nick Vertucci Real Estate Academy would have access to “up to $1,000,000” in “pre-approved funding.” ERSP recommended that the marketer modify the claim to disclose whether material terms and conditions that would affect the ability to obtain such funding.

Further, ERSP recommended the marketer discontinue performance claims that customers could earn money quickly and easily. While ERSP recognizes that it is possible to earn money in real estate investing, like any other wealth creation enterprise, success is typically the result of hard work and a time commitment. As such, advertisers should be careful not to communicate, through express or implied claims, that earning money using a product or service is effortless, easy and/or simple

ERSP acknowledged the marketer’s pledge to modify all earnings claims, but noted that the marketer should, in future advertising, refrain from making earnings claims until it reliable data that will support references to the amount of money that consumers may typically earn using the product.

ERSP noted that the marketer did not provide any evidence regarding the amount of money that students of Nick Vertucci have earned. ERSP does not dispute that the success stories depicted in the advertising are from real people with actual success stories. However, ERSP recommended that such testimonials be accompanied by clear and conspicuous language qualifying the claims with disclosures of typicality.

Finally, ERSP acknowledged the marketer’s pledge to add clear and conspicuous disclosures that can be read along with each testimonial, in order to alleviate the potential confusion about the typical results that consumers can generally expect to achieve.

The company, in its marketer’s statement, said that it “agrees with ERSP's recommendations, pledges to implement those recommendations and will implement procedures to ensure compliance with all federal, state and local laws, regulations, industry guidelines and best industry practices.”

ERSP Recommends Armando Montelongo Seminars Modify Certain Claims for Real Estate Education Program; Company Agrees to Do So

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Armando Montelongo Seminars modify or discontinue certain claims for the Armando Montelongo Real Estate Education program.

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

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

• “Learn how you can start making money 'Flipping Houses' right here in your own back yard.”
• “See why people, just like you, are making money and having success using Armando's investing strategies, techniques, and systems.”
• “Learn from the #1 Education Company in the World”
• “Be one of the first 50 people to register and attend Armando's Mega Millionaire Event to receive a chance to win a $5,000 check* from Armando himself! Also receive your own VIP CASH FLOW PACKAGE and SOCIAL MIXER with Armando's team of real estate experts, a $500 Value absolutely FREE, just for attending!” and “When you attend your name will be entered into a drawing for a $5,000 dollar check. There are no strings and no catches. This drawing is something we are doing as a monthly customer appreciation celebration.”
• “The education I received through Armando’s system was more valuable than my college education.  I made over $45,000 in profit on my first flip.” [Amir H]
• “I successfully flipped my first property, with no prior real estate experience after learning Armando’s system and I made a profit over $34,000 on my first flip.” [Janie G]

ERSP also reviewed claims made during free live seminar events, including:

• “[Armando will] guarantee in writing you will make money by using Armando’s program.”
• Claims that Armando flipped 138 houses in his first 3 years in the real estate industry

The marketer’s websites (www.armandolive.com and www.armandomontelongo.com) and program infomercials explain that Armando Montelongo is a house flipper, entrepreneur, and motivational speaker.

As a preliminary matter, ERSP noted that the marketer revised a number of claims for AM Real Estate Education during the course of the inquiry.

The key issue before ERSP was whether the advertising at issue conveyed specific express or implied earnings expectations to consumers, aside from the general message that they could earn money using the techniques outlines by the program. ERSP noted its concern about the lack of any clear and conspicuous disclosures concerning the typical results consumers can generally expect to achieve from using the product.

Regarding earnings claims communicated by consumer testimonials used in the advertising, ERSP recommended that the marketer clearly and conspicuously, and in close proximity to the claims, provide consumers with some indication of the range or the average amount of money that can be generally earned based upon the scenario described in the testimonial.

ERSP noted in its decision that the marketer denied that the following information was communicated during a live seminar:

• “[Armando will] guarantee in writing you will make money by using Armando’s program.”
• Claims that Armando flipped 138 houses in his first 3 years in the real estate industry.

ERSP noted that representations communicated by a speaker during a live seminar are often unscripted and difficult to document. Further, without evaluating claims in the context in which they are presented, it is difficult to properly assess the messages communicated to consumers.

Nevertheless, ERSP emphasized that any claims that detail Armando Montelongo’s success in using the same techniques he is selling to consumers could be understood to mean that consumers can typically expect the same results. If the results are not typical, ERSP noted, the burden is on the advertiser to disclose what result could typically be expected. 
The company, in its marketer’s statement, said that it “has already incorporated many of ERSP’s suggested practices and has committed to evaluate its marketing practices in light of the ERSP review going forward.”

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

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that EuroPharma, Inc. modify or discontinue certain advertising claims for Curamin, a dietary supplement intended to treat pain and inflammation.

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

ERSP reviewed online advertising claims for Curamin, including:

• “Curamin contains a super-absorption curcumin called BCM-95 that can be up to 10 times stronger than plain curcumin products."
• “Blending four powerful, effective and clinically proven ingredients into one award-winning product provides an unprecedented level of natural relief."
• “Curamin contains a super-absorption curcumin called BCM-95 that can be up to 10 times stronger than plain curcumin products.” and “This form of high-absorption curcumin is micronized and re-blended with the essential oil of turmeric for up to 10 times the absorption and greater blood retention time at meaningful levels compared to standard 95% curcumin extracts."
• “Features clinically proven BCM-95 bioavailable curcumin”

ERSP also considered whether EuroPharma failed to adequately inform consumers of the material connection between EuroPharma and the website TerryTalksNutrition.com, which features Terry Lemerond, a founder and president of EuroPharma. 

During the course of the inquiry, the marketer informed ERSP that it voluntarily discontinued a number of the claims that were at issue in the inquiry, such as “Most effective curcumin available.”

The marketer asserted that the TerryTalksNutrition site is a third-party, educational website containing information relating to health and nutrition and that the content is based on the opinions and experience of Mr. Lemerond. 

EuroPharma said that as a demonstration of good faith, future references on the site will be made only to ingredients and not specific formulas. EuroPharma also explained that it had removed links from the blog to EuroPharmaUSA.com and Curamin.com. 

In considering the remaining establishment claims at issue, the marketer submitted several studies on the key ingredients found in Curamin. ERSP also looked to the National Advertising Division’s (NAD) previous self-regulatory inquiry concerning Curamin as guidance. As noted by NAD, the marketer’s evidence did adequately demonstrate that Curamin provides joint health benefits, including some relief from the pain associated with osteoarthritis.

Based upon the results of the scientific studies provided by EuroPharma to ERSP as well as the determinations reached by NAD, ERSP determined that EuroPharma provided sufficient support for the establishment claims for Curamin that were communicated in a non-quantified context. 

However, ERSP recommended that the quantified claims regarding the comparative strength and absorption of the curcumin ingredient in Curamin be discontinued, while noting that the marketer’s evidence would be sufficient to support general efficacy claims regarding the ingredient’s comparative absorption benefits. 

The company, in its marketer’s statement, said, “EuroPharma is pleased that ERSP carefully and thoughtfully considered the evidence submitted in support of the claims made for Curamin. We have made modifications to our website as recommended by ERSP and will follow ERSP’s suggestions in future advertising claims for this product. We thank ERSP for their willingness to discuss the advertising claims for Curamin in an open and cooperative manner. EuroPharma remains committed to truthful and accurate advertising.”

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

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

ERSP is an investigative unit of the advertising industry’s system of self-regulation and is administered by the Council of Better Business Bureaus. The marketer’s advertising came to the attention of ERSP through a competitive challenge filed by Safe Step Walk-In Tub Co.

ERSP reviewed broadcast, print, and online advertising claims for PCIB, including:

• “In fact, while other manufacturers use harsh water jets that can carry bacteria and damage or bruise your skin..."
• “America’s leader in Walk-In Tubs"
• “The best selling walk-in bath in America.”

The challenger also expressed concerns regarding the lack of a clear and conspicuous disclosure detailing the financing offer and the claim that the offer is a special or limited time offer. 

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

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

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

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

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

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

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

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

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

Claims at issue in the initial inquiry included:

•  “The point specific pressure brace for fast effective sciatic back pain relief."
• "Relieves tension up the sciatic nerve with firm trigger point acupressure."
• “Reduces both short term and chronic sciatic back pain.”
• "Helping you live pain free & enjoy being active again.”
• “You need BeActive, the revolutionary new acupressure system that instantly helps ease discomfort in your lower back, buttocks, and legs."
• "You'll instantly begin experiencing relief."
• "Back pain often radiates from the lower back to the lower extremities, but apply BeActive to the trigger point on the calf muscle to instantly relieve pain."
• "The secret is the acupoint pressure pad that gently compresses, alleviating pain at the sciatic nerve and lower back for instant relief."

ERSP determined that the evidence in the case record did not support claims indicating that the product would be effective in providing relief from all sciatica conditions, particularly those that originate in the upper extremities, and sciatica pain that is referred from the two trigger points in the soleus muscle that are not stimulated by the BeActive brace.

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

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

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

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

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

ERSP reviewed online advertising claims for Quest Protein Bars, including:

• “And the last thing you want to do is throw that hard work away by eating other nutrition bars or meal replacement bars that are little more than thinly disguised candy.”
• “As most people know, if you want to stay healthy, lose fat or build LEAN muscle, you must control your carb intake. That's why we've worked so hard to create Quest Bars with very few active carbs.”
• “Quest Bars will also curb your hunger more effectively than most foods. Because they are packed with fiber, you'll find that they are very filling. The natural fats and proteins will further keep your appetite satisfied for hours - making sure that you can easily stay away from eating higher calorie, less nutritious fare.”
• “Uniqueness” and “one-of-a-kind” claims

At the outset of the inquiry, the marketer informed ERSP that several of the advertising claims that were the subject of the inquiry are currently the subject of pending litigation. As such, ERSP agreed that it was not appropriate to review those claims.

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

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

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

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

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

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

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

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

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

ERSP reviewed print advertising claims for Senior Mobile, including:

• “Public set to get easy to use cell phones free"
• “New cell phones aimed at keeping Texas residents safe are being given away free to everyone who beats the 48 hour deadline to cover just the one-time activation fee, but only those Texas area residents who call are also getting nationwide coverage with no long distance charges, no contracts, no deposits and no monthly bills”
• “The only thing residents need to do is call the Toll Free Hotline before the 48-hour order deadline ends to cover just a one-time activation fee to instantly be awarded the new Senior Mobile cell phone for free.”
• “U.S. Gov’t urges citizens to carry cell phones”

Senior Mobile is a cell phone designed for seniors that includes an “E” button, a preprogrammed button which allows consumers to make a one-touch call to an emergency dispatch center, instead of dialing 9-1-1. 

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

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

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

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

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

ERSP is an investigative unit of the advertising industry’s system of self-regulation and is administered by the Council of Better Business Bureaus. The marketer’s advertising was challenged by UnbeatableSale, Inc.

ERSP reviewed online advertising claims for ConsumerAffairs, including:

• “Consumer Affairs is a consumer news and advocacy organization founded in 1998 by James R. Hood, a veteran Washington, D.C. journalist and public affairs executive. Our website includes consumer news, recall information and tens of thousands of pages of consumer reviews.”
• “ConsumerAffairs.com is a private, non-governmental entity that empowers consumers by providing a forum for their reviews.”

The challenger also expressed concerns regarding the filtering of reviews on the website; a lack of disclosure to consumers that describes how the ratings system operates; the message that ConsumerAffairs.com is a consumer advocacy organization; and the lack of disclosures describing the material connection between ConsumerAffairs clients and their review pages.

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

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

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

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

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

ERSP Refers Advertising for Mobile Money Code to FTC

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

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

Claims at issue in the initial inquiry included:

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

Pursuant to the ERSP Policy and Procedures, after failing to provide a substantive response to ERSP’s original inquiry within fifteen calendar days, the marketer was afforded a second ten-day period in which to submit a substantive response. The marketer did not do so. Pursuant to ERSP Policies and Procedures, this matter has been referred to the FTC.

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

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

ERSP is an investigative unit of the advertising industry’s system of self-regulation and is administered by the Council of Better Business Bureaus. The marketer’s advertising came to the attention of ERSP pursuant to its ongoing monitoring program. ERSP reviewed online advertising claims for Androfen, including:

• “Reduce body fat”
• “Increase muscle”
• “Accelerate sex drive”
• “CLINICALLY PROVEN TO:
• MAXIMIZE MUSCLE MASS
• BOOST SEX DRIVE & LIBIDO
• ENHANCE PERFORMANCE”
• “…reduce body fat by over 200%”
• “In a university clinical study, men taking the active ingredient in Androfen significantly increased their testosterone in only 12 hours and reduced their body fat by over 200% versus placebo."

As support for the performance and establishment claims at issue, the marketer submitted several studies on Androfen’s key ingredient, fenugreek (T. foenum-graecum).

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

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

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

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

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

The Electronic Retailing Self-Regulation Program (ERSP) will refer direct response advertising for Nick Vertucci Real Estate Academy to the Federal Trade Commission (FTC) after the marketer, The Nick Vertucci Companies, Inc., respectfully declined to participate in an ERSP inquiry.

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

Claims at issue in the initial inquiry included:

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

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

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

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

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

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

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

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

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

ERSP closed its review of claims covered by the 2005 order, but continued its review of certain performance claims and testimonials, including:

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

Following its review of the evidence in the case record, ERSP determined that ORI provided a reasonable basis for the claims “20 million bottles sold” and “millions of people meet their weight loss goals.”

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

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

ERSP also recommended that ORI modify or discontinue consumer testimonials.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ERSP reviewed broadcast and online advertising claims for Jidue, including:

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

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

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

However, ERSP determined that the marketer did not provide adequate support for claims that included: 

• “clinically proven” results
• "Helps you sleep through the night”
• “Reduce wrinkle development”
• “Reduces puffiness and dark circles”

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

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

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

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

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

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

• “… teaches you how to make money with real estate investing – buying and selling foreclosures and distressed properties and doing it with no money and no credit”
• “… will help you achieve financial freedom faster than ever!”
• “Over the past 16 years, Jeff has invested in both residential and commercial properties in a variety of different states and his real estate businesses have brought in more than $50 million”
• “… enabled me to increase my income in ways I never thought possible. No more hype. No more confusion. Thanks so much for your help, Jeff. I didn't think it could really be done, especially not as fast as Jeff said." [Don Sanders]

The advertising consists of the marketer’s website (www.jeffadams.com), which explains that Jeff Adams is a real estate investment expert who can teach customers how to make money with real estate investing - buying and selling foreclosures and distressed properties - through courses and training.

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

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

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

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

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

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

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

The Electronic Retailing Self-Regulation Program (ERSP) has announced it will refer direct response advertising for the dietary supplement “Kelacore”  to the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) after the marketer, Nature's Medicine Associates, failed to respond to an ERSP inquiry.

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

Claims at issue in the initial inquiry included:

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

After failing to provide a substantive response to ERSP’s original inquiry within fifteen calendar days, the marketer was afforded a second ten-day period in which to submit a substantive response. The marketer again did not submit a written response to the inquiry and pursuant to section 2.6 (B) of the ERSP Policy and Procedures, this matter has been referred to the FTC and FDA.