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Thursday, November 20, 2014

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.”

Wednesday, October 29, 2014

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.”

Friday, October 10, 2014

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.

Thursday, September 25, 2014

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.”

Tuesday, September 2, 2014

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.

Thursday, August 28, 2014

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.”