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.

ERSP Recommends PartnerWithPaul.com, LLC Modify Certain Claims for Affiliate-Marketing Program; Company Agrees to Do So

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that PartnerWithPaul.com, LLC modify or discontinue certain claims for the company’s Partner With Paul 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. The marketer’s advertising came to the attention of ERSP through ERSP’s ongoing monitoring program.

ERSP reviewed online advertising claims for the affiliate marketing, wealth-creation product, including:

• “Making money online can be easier than you think when you know how ...”
• “I work from home and pocket more money in a month than most people make all year”
• “More importantly, I’ll PROVE that making a million dollars online is possible with the program I am about to show you.”
• “I'm looking for a relatively small group of people who want to make lots of money online, and the whole purpose of this website is really just to help me find these people.”
• “$5200 in first month” [Tanya D.]

Partner with Paul is an affiliate marketing program that purports to describe a marketing program to become a reseller for a multi-level-marketing program. The advertising consists of the marketer’s website (www.partnerwithpaul.com), which describes how to make money online and invites customers to create an account with Partner With Paul in order to receive a special report titled “The Only ‘Secret’ to Making Money Online.”

ERSP disagreed that the website describes a marketing program to become a reseller for a multi-level marketing program. Indeed, nowhere on the homepage of the website does the marketer describe that customers will become MLM resellers. This is material information that must be prominently and conspicuously disclosed to consumers.

ERSP remained concerned with representations regarding the implication that product users will be able to achieve the success communicated in the advertising easily, with little or no skill, and without a lot of free time. ERSP determined that one message reasonably communicated in the advertising was that consumers can earn money quickly and easily, despite the removal of the word “easy.” ERSP therefore recommended the marketer discontinue such performance claims.

ERSP also noted that the marketer did not provide any evidence regarding the amount of money that purchasers of Partner With Paul have earned using the product. ERSP acknowledged the marketer’s pledge to remove the average earnings grid and testimonial representations. ERSP additionally noted the marketer’s attempt to qualify the claims made on the homepage. However, ERSP remained concerned that the language was neither “clear and conspicuous,” nor was it located in close proximity to the claims. ERSP additionally noted that, as of today, the claim “My best friend was really mad at me…sitting in my home office, deeply in debt, he begged me to show him how I am averaging $136,808 a month online” has not been removed, despite the marketer’s pledge in the alternative. Therefore, ERSP recommended that Partner With Paul discontinue any and all earnings claims until it can support such income statements with reliable consumer data.

Finally, ERSP recognized the marketer’s commitment to removing testimonials that reference earnings, profits, and results.

The company, in its marketer’s statement, said that it would follow ERSP’s suggestions and that it “…is in 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 Theradome Modify, Discontinue Certain Claims for Hair-Loss Laser

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that  Theradome, Inc., modify or discontinue certain advertising claims for Theradome, a product designed to treat hair loss through the use of a low-level laser.

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 Theradome, including:

• “The first and only FDA cleared clinical strength laser treatment that has proven triple action”
• “Proven to grow hair in 98 percent of users”
• “In our clinical studies ALL participants benefited from the Theradome™ and experienced one or more of the following: 1) Thicker and more manageable hair, 2) Reduced hair loss, and 3) New hair growth after three to four months. We know it works, that's why we guarantee that you'll see great results.”
• ”100% Proven. 100% Easy. 100% Safe.”
• “The world’s most powerful in-home solution to treat hair loss."

As support for the performance and establishment claims at issue, the marketer submitted testing on low-level laser therapy (LLLT), the main technology behind Theradome. The marketer also provided ERSP with materials concerning its 510(k) premarket notification, which established its equivalence to a predicate device.

Following its review of the evidence in the case record, ERSP did not object to some general performance claims, but determined that the marketer did not provide adequate support for claims that Theradome will help consumers “… experience thicker and longer hair, a healthier scalp with reduced scalp itching and inflammation. Plus those with curly hair will see enhanced curl retention. After 52 treatments (20 minutes per treatment), the hairs on the top of the head and the vertex will start filling in. After 100 treatments (20 minutes per treatment), fuller and thicker hair will result with continued use.”

ERSP recommended that the marketer clearly and conspicuously disclose that Theradome is specifically intended for “females with female pattern hair loss on the Ludwig and Savin Hair Loss Scale I-II, Fitzpatrick Skin Types I to IV” as it is necessary information for consumers.

ERSP found insufficient evidence to demonstrate that the FDA had “approved” the product “to increase the diameter of hair up to 200%” – a message that ERSP determined could by reasonably understood by consumers – and recommended the marketer discontinue this claim.

Further, ERSP found that studies presented by the advertiser did not meet general standards of competent and reliable evidence and found that the marketer did not support the comparative claims at issue.

The company, in its marketer’s statement, said, “We will continue to make appropriate modifications to advertising for Theradome LH80 PRO in accordance with ERSP's recommendations … Theradome Inc. is committed to ensuring that its advertising is truthful, accurate, and substantiated. We value and support industry self-regulation and welcome the ERSP's decision regarding advertising for the Theradome LH80 PRO medical device.”

ERSP Refers Advertising for Dinamo to FTC, FDA; Marketer Fails to Respond to ERSP Inquiry

The Electronic Retailing Self-Regulation Program (ERSP) has announced it will refer direct response advertising for Dinamo to the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) after the marketer, Natures Flava, LLC, 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:

• “Diabetes no more!”
• “It's targeted to lower blood sugar levels and fight against diabetes!" and "Dinamo helps lower blood sugar levels."
• “When I woke up in the morning prior to the Dinamo, my insulin levels were usually in the high 200s - 250, 260, 270. And since I started using the Dinamo, that number has gone to about the 160s, 170s, 180s." [Larry]
• "Created for DIABETICS to help maintain blood sugar levels with only NATURAL and ORGANIC ingredients.”

Pursuant to the ERSP Policies 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 again did not submit a written response to the inquiry and pursuant to section 2.6 (B) of the ERSP Policies and Procedures, this matter has been referred to the FTC and FDA.

ERSP Reviews Advertising for ‘Zvelt,’ Marketer Voluntarily Discontinues Claims

The Electronic Retailing Self-Regulation Program (ERSP) has recommended Progenum International, LLC modify or discontinue certain claims for Zvelt, a weight-loss patch.

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 for Zvelt and identified several claims for review, including:

• “Just apply and say goodbye to those stubborn pounds;”
• “Just stick the patch on and watch the pounds roll off”
• “THE SAFEST, EASIEST WAY TO LOSE WEIGHT!”
• “I was amazed with how fast the weight came off and stayed off”
• “I lost 75 pounds and I've kept it off for 6 years.”
• “Zvelt's unique formula of clinically proven ingredients are absorbed slowly through the skin to stimulate your body's natural fat burning capabilities.”

During the course of the inquiry, the marketer informed ERSP that it had voluntarily discontinued its broadcast advertising, which contained several of the claims at issue in the inquiry.

After reviewing the evidence submitted by the marketer, ERSP determined that the consumer testimonials that appear on the product website are atypical and are not supported. ERSP recommended that testimonial claims of specific weight loss include a clear and conspicuous disclosure that the weight loss was obtained in conjunction with diet and exercise.

ERSP also found that the claim “No Crazy Diets,” in the context in which it is presented, may be reasonably interpreted by consumers as meaning they can lose significant weight without the assistance of a calorie-restricted diet. ERSP concluded that this message was not accurate.

Further, ERSP determined that the claim “SAFEST, EASIEST WAY TO LOSE WEIGHT” could be considered a comparative superiority claim and without evidence to substantiate this claim, ERSP concluded that it was not supported.

The company, in its marketer’s statement, said “Progenum appreciates all of the interaction ERSP has afforded us during this process. Their input has been extremely helpful, and in fact, has provided the basis for the new scripting we are currently developing.”

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

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that truDERMA, LLC, discontinue certain claims for the company’s Troxyphen dietary supplement, including claims that the product is “safe and clinically researched.”

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 Troxyphen, including:

• "Troxyphen is safe & clinically researched”
• “The patented test [sic] boosting blend was shown in clinical studies to: Raise testosterone levels 98.81% in 8 weeks.”
• “Gains in Muscle Size & Strength”
• “Tribulus Terrestris - This extract increases the body’s natural testosterone levels and thereby improves male sexual performance and helps build muscle.”
• “Burn excess fat | Improve sex drive | Gain muscle mass”

As support for the performance and establishment claims at issue, the marketer submitted testing on its key ingredient. After reviewing the evidence, ERSP concluded that truDERMA provided a reasonable basis for claims relating to an “increased sex drive.”

However, ERSP determined that the marketer did not provide adequate support for claims that Troxyphen will “burn excess fat” or that users will “gain muscle mass.” ERSP recommended that the marketer discontinue any claims of weight and/or fat loss, increased muscle, and improved BMI.

ERSP also recommended that the marketer discontinue claims that promise quantified performance results and modify general claims of increased testosterone by disclosing that the product must be used in conjunction with resistance training.

The marketer did not provide evidence indicating that the dosages of ingredients contained in Troxyphen will provide the results specifically stated in the advertising. As a result, ERSP recommended truDERMA discontinue several ingredient claims and the claim that “Troxyphen is safe & clinically researched.”

The company, in its marketer’s statement, said, “truDERMA appreciates ESRC's comments and direction on our advertising.  We are committed to helping people lead healthier, happier lives.  truDERMA will give serious consideration to ESRC's recommendations in our advertising practices."

FTC Files Complaint Against Apply Knowledge, YES International

The FTC announced on Monday that it has filed a complaint against Apply Knowledge, a work-from-home business opportunity that "conned millions of dollars from consumers by falsely telling them they could easily earn thousands of dollars a month by purchasing bogus business coaching services and establishing their own Internet businesses." The FTC noted that consumers who purchased the company's "product(s)" lost thousands if not tens of thousands of dollars.

From the FTC Press Release: "U.S. District Court for the District of Utah froze the assets of the defendants, who did business under a variety of names, including Essent Media, LLC, Net Training, LLC, YES International, Coaching Department, and Apply Knowledge, and appointed a temporary receiver to take control of the operations, pending the outcome of a preliminary injunction hearing set for March 20, 2014. The FTC seeks to put a permanent stop to the operations and return money to consumers."

According to the FTC’s complaint, the defendants’ websites told numerous false “rags to riches” stories, using photos – obtained from stock photo agencies – of supposed users of the defendants’ services, and made false and unsubstantiated claims about how much money consumers could earn.

ERSP had previously examined the advertising claims made by defendant YES International, pursuant to an anonymous consumer challenge (ERSP Case #311). In particular, ERSP reviewed earnings and testimonial claims that appeared on a variety of different lead-generation websites.

In examining the sites, ERSP noted that each site displayed at least four testimonials. However, the exact text of each testimonial appeared on multiple sites, attributed to different consumers. ERSP recommended that the marketer discontinue the use of such testimonials.

The company agreed to modify the claims at issue, and said it would provide an appropriate disclaimer on its website regarding the testimonials. Further, the company said, it “will strive to eliminate duplicate or replicated testimonials from any website it operates for the purpose of advertising its services and products, and to ensure that the testimonials are substantiated and do not overstate results from YES’ products and services.”