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

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.

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 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

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

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

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

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.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to the attention of ERSP pursuant to 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

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.

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 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

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.

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 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

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.

ERSP, the electronic direct-response industry’s self-regulatory forum, is administered by the Council of Better Business Bureaus (CBBB) with policy oversight by the National Advertising Review Council (NARC).

The marketer’s advertising came to the attention of ERSP pursuant to 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.”