ERSP Finds Syneron Can Support Certain Claims for Tanda Zap; Recommends Marketer Modify, Discontinue Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Syneron Beauty provided adequate support for certain performance claims made in its direct-response advertising for Tanda Zap, 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 online advertising for Tanda Zap, and identified several claims for review, including:

• “Clears individual acne blemishes fast.”
• “No pain. No irritation. No dryness. And best of all no pimple.”
• “Clears existing breakouts, Prevents future outbreaks, Improves overall skin condition, Safe for all skin types, No irritation, dryness or redness.”
• “The Tanda Zap technology is gentle enough for all skin types and tones. There is no risk of burning, no pain, no dryness, no redness, no irritation, and no bleaching that can be experienced like with other types of treatments.”
• “Tända Zap - Official Site - FDA Approved - Dr Recommended”
• “Clinically proven to clear or fade acne blemishes within 24 hours.”

During the pendency of the inquiry, the marketer informed ERSP that it has discontinued all references to Tanda Zap being “FDA approved.” Syneron also voluntarily removed all consumer testimonials which reference Tanda Zap as being clinically proven to clear or fade blemishes in 24 hours.

To support its claim that Tanda Zap “clears individual acne blemishes fast,” Syneron presented ERSP with a study that demonstrated moderately raised lesions were cleared or significantly improved within 24 hours. The marketer also provided ERSP with several studies on blue light technology and a device that is materially similar to Tanda Zap. After a review of these studies, ERSP concluded that Syneron provided adequate support for claims that Tanda Zap can clear acne fast.

Regarding claims that use of the Tanda Zap results in no pain, irritation, or dryness, ERSP found that Syneron adequately supported the claim by providing ERSP with studies in which no side effects were reported by participants. The marketer was also able to substantiate its claim that Tanda Zap clears existing breakouts and prevents future breakouts.

ERSP remained concerned about the claim that Tanda Zap is “gentle enough for all skin types and tones.” After reviewing several of the studies submitted, it appeared to ERSP that the studies did not include subjects of all skin types. Additionally, ERSP noted that the claim could be interpreted as being inclusive of severe acne sufferers when that is not the case. ERSP recommended the marketer discontinue the claim or modify it in a way that accurately reflects the submitted studies.

Similarly, with respect to the “clinically proven” claim, ERSP found it to be disseminated in an overly broad context in which consumers could reasonably interpret the claim to be inclusive of severe acne conditions. ERSP recommended that product efficacy claims be accompanied by a clear and conspicuous disclosure indicating that the representations are based on testing of subjects with mild to moderate acne.

The company, in its marketer’s statement, said, “Syneron Beauty appreciates ERSP’s thoughtful review of the clinical studies and underlying science supporting the efficacy of the Tanda Zap product by ERSP ... Syneron Beauty accepts ERSP’s recommendations and will take account of the decision in crafting future consumer communications.”

ERSP Reviews Advertising for DentaBoost; Recommends Marketer Modify Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Neemology modify specific performance and establishment claims in advertising for “DentaBoost.” Additionally, ERSP determined that the marketer could not support establishment claims or consumer testimonials.

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 DentaBoost and identified several claims for review, including:

• “Dental health is essential for overall health. DentaBoost contributes to superior dental health.”
• “DentaBoost has harnessed the power of Neem Complex to proactively: Promote healthy gums, Reduce fear of the dentist by making dental visits easier, Gently whiten teeth and contribute to a brighter smile, Instantly eliminate bad breath and give you a fresh, clean feeling, Give you that fresh from the dentist feeling.”
• “DentaBoost uses a unique combination of scientifically proven natural ingredients including our proprietary Neem Complex to instantly improve the health of your gums and overall oral hygiene.”
• “A major university study verifies the healthy benefits of one of the key ingredients in DentaBoost.”
• “DentaBoost is a natural way to whiten my teeth.”

DentaBoost is an oral hygiene powder consisting of neem that is applied to a toothbrush and which claims to contribute to good dental health. After reviewing the evidence in the record, ERSP did not object to general statements about the neem ingredient and its use to promote healthy gums or better dental health.

However, ERSP found that the more specific claims in the advertising (e.g., “acts as tooth whitener”; “[i]nstantly eliminate bad breath”; “[m]akes your tooth brush more effective”) were not supported by the study data submitted. ERSP also determined that the claim “[DentaBoost] makes your toothbrush more effective” can be interpreted to mean that DentaBoost will contribute to cleaner teeth. Neemology did not provide any evidence that DentaBoost has a significant effect on making a user’s teeth cleaner than toothpaste alone.

As support for the establishment claims at issue, Neemology submitted several studies on neem, the primary ingredient in DentaBoost. ERSP found the studies tested neem at different dosages and via different methods of administration as compared to DentaBoost, and did not adequately substantiate the establishment claims. Similarly, ERSP found that the marketer’s evidence did not support claims found in consumer testimonials, and recommended Neemology modify or discontinue such claims.

The company, in its marketer’s statement, said, “We have reviewed ERSP’s decision regarding direct response advertising for DentaBoost and although we may not agree with all you decisions, we will take your recommendations into consideration in future advertising.”

ERSP Reviews Advertising for IntelliKal Plus; Marketer Discontinues Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that The Neutraceutical Company, LLC (“TNC”) has provided adequate support for certain claims made in direct-response advertising for “IntelliKal Plus,” a dietary supplement used to promote cardiovascular and bone 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:

• “…helps support over 300 functions in the body and uses powerful co-factors to supercharge results! Magnesium helps with calcium absorption and muscle relaxation.”
• “This extract [MenaQ7]… has been shown to prevent calcium from being in the arteries and soft tissues and gets calcium into your bones where it belongs”
• “Rotterdam study suggests IT!” and “Rotterdam Study Proves It”
• "Increases bone density and mass, May Reduce arterial calcium build up.”
• “Proven Bone-Building Results”
• “IntelliKal with MenaQ7 takes the calcium to your bones and away from your arteries.”
• “The ingredients in this super health cocktail help with stubborn belly fat, improved moods, a healthy immune system, healthy muscle and nerve function and even helps maintain normal blood sugar levels all while helping to protect your heart and bones.”

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, TNC submitted a number of studies regarding calcium, vitamin D3, and magnesium, the primary ingredients in IntelliKal Plus. After reviewing the case record, ERSP agreed that the marketer provided a reasonable basis for claims that IntelliKal Plus can help to increase bone density and mass and supports many functions in the body. However, ERSP recommended TNC refrain from making claims referencing weight loss until it can produce more reliable data on weight loss due to calcium at the same dosage that IntelliKal contains.

Despite the marketer’s voluntary modification of its claim “Rotterdam Study Proves It” to “Rotterdam study suggests IT,” ERSP remained concerned about the potential inaccurate message that could be communicated by the claim. TNC advised ERSP that it had removed claims referring to “the reduced risk of arterial calcification,” but ERSP noted that the “Rotterdam study suggests IT” claim can be reasonably interpreted as a reference to the effects of vitamin K2 and calcium in “reduc[ing] arterial calcification.” Additionally, after reviewing the Rotterdam Study, ERSP determined the evidence did not adequately support the claim at issue; the dosage, method of administration, and form of vitamin K2 were not comparable to the ingredients found in Intellikal Plus.

The company, in its marketer’s statement, said, “The Neutraceutical Company, LLC greatly appreciates the opportunity to participate in the Electronic Retailing Self-Regulation Program and thanks ERSP for its guidance during the review process. … As noted, we voluntarily discontinued a number of claims.  We recognize and appreciate ERSP’s recommendations and will consider them when developing future advertising.”

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

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

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

What Your Consumer Says About You Matters

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

ERSP Reviews Advertising for MyPillow; Recommends Marketer Modify Certain Claims

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

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 MyPillow and identified several claims for review, including:

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

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

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

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

ERSP in January's Electronic Retailer

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