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

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that EuroPharma, Inc. modify or discontinue certain advertising claims for Curamin, a dietary supplement intended to treat pain and inflammation.

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 an anonymous competitive challenge.

ERSP reviewed online advertising claims for Curamin, including:

• “Curamin contains a super-absorption curcumin called BCM-95 that can be up to 10 times stronger than plain curcumin products."
• “Blending four powerful, effective and clinically proven ingredients into one award-winning product provides an unprecedented level of natural relief."
• “Curamin contains a super-absorption curcumin called BCM-95 that can be up to 10 times stronger than plain curcumin products.” and “This form of high-absorption curcumin is micronized and re-blended with the essential oil of turmeric for up to 10 times the absorption and greater blood retention time at meaningful levels compared to standard 95% curcumin extracts."
• “Features clinically proven BCM-95 bioavailable curcumin”

ERSP also considered whether EuroPharma failed to adequately inform consumers of the material connection between EuroPharma and the website TerryTalksNutrition.com, which features Terry Lemerond, a founder and president of EuroPharma. 

During the course of the inquiry, the marketer informed ERSP that it voluntarily discontinued a number of the claims that were at issue in the inquiry, such as “Most effective curcumin available.”

The marketer asserted that the TerryTalksNutrition site is a third-party, educational website containing information relating to health and nutrition and that the content is based on the opinions and experience of Mr. Lemerond. 

EuroPharma said that as a demonstration of good faith, future references on the site will be made only to ingredients and not specific formulas. EuroPharma also explained that it had removed links from the blog to EuroPharmaUSA.com and Curamin.com. 

In considering the remaining establishment claims at issue, the marketer submitted several studies on the key ingredients found in Curamin. ERSP also looked to the National Advertising Division’s (NAD) previous self-regulatory inquiry concerning Curamin as guidance. As noted by NAD, the marketer’s evidence did adequately demonstrate that Curamin provides joint health benefits, including some relief from the pain associated with osteoarthritis.

Based upon the results of the scientific studies provided by EuroPharma to ERSP as well as the determinations reached by NAD, ERSP determined that EuroPharma provided sufficient support for the establishment claims for Curamin that were communicated in a non-quantified context. 

However, ERSP recommended that the quantified claims regarding the comparative strength and absorption of the curcumin ingredient in Curamin be discontinued, while noting that the marketer’s evidence would be sufficient to support general efficacy claims regarding the ingredient’s comparative absorption benefits. 

The company, in its marketer’s statement, said, “EuroPharma is pleased that ERSP carefully and thoughtfully considered the evidence submitted in support of the claims made for Curamin. We have made modifications to our website as recommended by ERSP and will follow ERSP’s suggestions in future advertising claims for this product. We thank ERSP for their willingness to discuss the advertising claims for Curamin in an open and cooperative manner. EuroPharma remains committed to truthful and accurate advertising.”

ERSP Recommends Premier Care in Bathing Modify, Discontinue Certain Claims for Its Walk-In Baths

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Premier Care in Bathing (“PCIB”) modify or discontinue certain advertising claims for its walk-in bathtubs.

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 a competitive challenge filed by Safe Step Walk-In Tub Co.

ERSP reviewed broadcast, print, and online advertising claims for PCIB, including:

• “In fact, while other manufacturers use harsh water jets that can carry bacteria and damage or bruise your skin..."
• “America’s leader in Walk-In Tubs"
• “The best selling walk-in bath in America.”

The challenger also expressed concerns regarding the lack of a clear and conspicuous disclosure detailing the financing offer and the claim that the offer is a special or limited time offer. 

Following its review, ERSP found that the PCIB did not provide adequate substantiation for the claim that “… other manufacturers use harsh water jets that can carry bacteria and damage or bruise your skin...” and recommended that the marketer either discontinue or modify the claim to avoid the possibility that consumers would interpret the claim as a reference to all competitors in the marketplace.

There was no dispute, ERSP noted, that PCIB is the oldest walk-in bath tub company in the industry and the first company to offer walk-in baths to US consumers. However, ERSP found that the marketer’s evidence did not support the claims “America’s leader in Walk-In Tubs” and “The best selling walk-in bath in America.”

ERSP said nothing in its decision precludes the marketer from making a claim that it is an industry leader – making it clear, for example, that the claim is based upon PCIB’s history in the product category and does not imply the claim is based on current sales data.

ERSP also determined that the marketer’s revised “$150 Per Month” financing offer appropriately disclosed important material information, but remained concerned that the disclosure was not adequately clear and conspicuous.

ERSP found that the marketer’s “special offer” claim was appropriately presented, but recommended that because the period of availability of a “limited time” offer is material to consumers, such information should be disclosed conspicuously in the advertising.

The company, in its marketer’s statement, said, “… PCIB appreciates and respects the self-regulatory process, is committed to truthful and accurate advertising, and will adhere to ERSP's recommendations in future advertising.”

ERSP Refers Advertising for Plymouth Direct’s ‘BeActive’ Brace to FTC, FDA

The Electronic Retailing Self-Regulation Program (ERSP) has announced it will refer direct-response advertising for the “BeActive Brace,” marketed by Plymouth Direct Inc., to the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) after the marketer failed to agree to comply with ERSP’s recommendations to modify or discontinue certain claims.

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 an anonymous competitive challenge. 

Claims at issue in the initial inquiry included:

•  “The point specific pressure brace for fast effective sciatic back pain relief."
• "Relieves tension up the sciatic nerve with firm trigger point acupressure."
• “Reduces both short term and chronic sciatic back pain.”
• "Helping you live pain free & enjoy being active again.”
• “You need BeActive, the revolutionary new acupressure system that instantly helps ease discomfort in your lower back, buttocks, and legs."
• "You'll instantly begin experiencing relief."
• "Back pain often radiates from the lower back to the lower extremities, but apply BeActive to the trigger point on the calf muscle to instantly relieve pain."
• "The secret is the acupoint pressure pad that gently compresses, alleviating pain at the sciatic nerve and lower back for instant relief."

ERSP determined that the evidence in the case record did not support claims indicating that the product would be effective in providing relief from all sciatica conditions, particularly those that originate in the upper extremities, and sciatica pain that is referred from the two trigger points in the soleus muscle that are not stimulated by the BeActive brace.

ERSP also recommended that the claim that use of the product will result in consumers being “pain free” was not adequately substantiated and that the marketer should discontinue the claim “Expensive pain-relievers wear off, but BeActive is always there to deliver the pain relief you need” and the accompanying visual in future advertising for BeActive. 

The company, in its marketer’s statement, did not indicate that it would agree to modify or discontinue the advertising as recommended by ERSP. Therefore, pursuant to section 3.1(D) of the ERSP Policy and Procedures, this matter has been referred to the FDA and FTC.

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.”

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.”

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.