ERSP & ERA's TV Council

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

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

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.

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 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

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.

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.

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

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

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.

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 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

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.

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 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.”