ERSP Finds Direct Digital Can Support Performance Claims for ‘Nugenix,’ Recommends Marketer Modify Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Direct Digital, LLC can support certain claims for Nugenix, a dietary supplement intended to increase testosterone levels. ERSP recommended the advertiser discontinue claims related to increased “muscle mass.”

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 for Nugenix and identified several claims for review, including:

• “Helps increase testosterone”
• “Helps increase libido and sexual performance”
• “Helps increase muscle mass”
• “Helps increase energy”
• “Studies and tests show the main ingredient in Nugenix is effective”
• “Nugenix is the #1 bestselling men’s vitality product in GNC Stores in the Unites States for 2013 for a reason."

During the course of ERSP’s inquiry, the marketer said that it had voluntarily discontinued several claims cited by ERSP and had significantly revised its website. However, the marketer indicated it would continue to disseminate a number of core claims such as “helps increase free testosterone.”

The marketer also informed ERSP that it had discontinued any and all claims indicating that the product or its ingredients are “clinically proven” to provide the indicated benefits. The marketer also noted that it will discontinue claims relating to Tribulus terrestris.

As support for general performance claims made in the advertising, the marketer submitted a number of studies on the ingredients contained within Nugenix. ERSP found that the marketer could support general performance claims that Nugenix “helps increase” testosterone, libido, sexual performance, and energy.

However, after reviewing the evidence in the case record, ERSP determined that unqualified claims relating to increased muscle mass were not adequately supported.

ERSP found that the marketer provided a reasonable basis for claims regarding zinc, Vitamin B, and L-citrulline. ERSP further concluded that the evidence submitted supported claims that the product is “the #1 bestselling men’s vitality product in GNC Stores in the Unites States for 2013...”

The company, in its marketer’s statement, said “While we disagree with ERSP’s conclusion that the claim “helps increase muscle mass” is not adequately qualified, with the goal of full cooperation with advertising self-regulation, we will take ERSP’s conclusion into account when developing future advertisements.  Direct Digital, LLC is committed to ensuring that its advertising is truthful, accurate, and substantiated, and we value and support industry self-regulation.”

ERSP Continues to Expand its Review Program

The Electronic Retailing Self-Regulation Program (ERSP) today reported on the last three (3) months of activity, under its program to review telemarketing scripts and calls by companies participating in its Telemarketing Review Program, as well as its expansion to monitor recordings of live real estate investing seminars.

ERSP is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus and funded by the Electronic Retailing Association.

ERSP, founded in 2004, has earned the respect of the direct-response industry through its expeditious, fair and even-handed review of core truth-and-accuracy advertising claims made by electronic retailers.

Since September of 2013, ERSP has broadened the scope of its monitoring review with the inclusion of EvTech Media, LLC as a new participant in the ERSP Review Program. As part of its review, ERSP will monitor audio recordings of live, free real estate seminars offered by EvTech. As is the case with its monitoring of recordings for the existing ERSP Review Program Participants, ERSP will be monitoring the Participant’s live seminar recordings for adherence to general advertising principles regarding the truthfulness and accuracy of the representations being made to consumers.

As part of its expanded monitoring review of the advertising practices of the lead generation industry, since the inception of the program, ERSP has closed eighteen (18) cases regarding the truth and accuracy of core claims communicated in lead generation advertising.

“ERSP is encouraged by the commitments of the participants to self-regulate their advertising practices, and we’re very optimistic that other companies in this industry will follow their example and join us in this self-regulatory initiative,” said Peter Marinello, Director, ERSP.

ERSP Recommends Global Smart Products Discontinue Certain Claims for Lead-Generation Program; Company Agrees to Do So

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Global Smart Products modify or discontinue certain claims for the company’s “Female Power Program,” a lead-generation wealth creation business.

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 lead-generation, wealth-creation product, including:

• “A woman’s guide to becoming a Millionaire”
• “This course will teach you how to make money and how to go from having nothing to having millions of dollars in your bank account”
• “Get inspired and learn from a real life story of a woman who has made millions of dollars from implementing these simple techniques”
• “Revolutionary step-by-step guide to creating wealth!”
• “Within the very first year of using the Female Power program, I have made over $100,000”

The advertising at issue featured the following disclaimer: “Disclaimer: Individual results may vary.”

The disclaimer, ERSP noted, was inadequate to qualify the atypical results promoted by the marketer in testimonials and earnings claims.

ERSP recommended that in future advertising the marketer clearly, conspicuously and in close proximity to the main claim, disclose the amount of money consumers can generally expect to earn, based upon reliable program usage data it has received from consumers.

Further, given the absence of evidence in the record, ERSP recommended the marketer discontinue claims that indicate users of the system can earn money quickly and easily.

Finally, ERSP recognized the marketer’s voluntary removal of claims that formed the basis of this inquiry, such as:

• “This course will teach you how to make money and how to go from having nothing to having millions of dollars in your bank account.”

The company, in its marketer’s statement, said that it would follow ERSP’s recommendations and that it is “… in the process of revising our marketing material to remove all express earning claims and/or claims that might mislead the end user.”

ERSP Recommends Conasia Global Internet Inc. Discontinue Certain Claims for Lead-Generation Program; Company Agrees to Do So

The Electronic Retailing Self-Regulation Program (ERSP) has recommended that Conasia Global Internet Inc. modify or discontinue certain claims for the company’s “Internet Marketing, Mentoring & Coaching Center (iMMACC),” an internet marketing and coaching and mentoring business that also has an affiliate advertising 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 lead-generation, wealth-creation product, including:

• “Whether You're Looking For ‘Quick Easy Ways To Get Money’, Or ‘Extra Ways To Make Money From Home’, Check Out Our Affiliate Program Because You Can Earn Big While You Learn!”
• “If you are a total beginner to internet marketing, we will take you through our Massive Action Marketing Program that is designed to get you to a 6 figure earning level in 90 to 120 days.”
• “Do You Want To Earn Up to $7,500 A Week? and “Want To Make Money In Your First 30 Days?”
• “It's hard to believe that in January, 2008 I lost my business and had trouble putting food on the table for my family - and since then, because of the marketing knowledge I have gained, I've not only had 5 figure months, but also 5 figure weeks - - and just last week you honored me on a company webinar for having a $10,000 day!” [Steve Jankowski, Plymouth, Minnesota]

iMMACC markets a coaching and mentoring program to teach students about online marketing. The advertising consists entirely of the marketer’s website (www.immacc.com), which includes informational videos about the product, information about ordering the product, and consumer testimonials.

ERSP determined that the performance claims at issue, in conjunction with the message communicated on the iMMACC.com webpage, communicate to prospective purchasers that earning significant amounts of money may be reasonably expected from using the product and that the disclosure (i.e., “Disclaimer Notice”) did not adequately qualify the net impression that the stated results are typical for product purchasers. ERSP also remained concerned with representations regarding the implication that product users will be able to achieve the success communicated in the advertising easily and with little or no skill.

ERSP noted that the marketer did not provide any evidence regarding the amount of money that purchasers of iMMACC have earned using the product. Although the marketer pointed to statements of success by past iMMACC users, ERSP determined that these representations are considered anecdotal and are no substitute for substantive, documented past earnings data which is necessary to support the express earnings claims that were communicated in the advertising

ERSP noted that the website contained disclosure language on the “Income Disclaimer” page. As has been noted in a number of previous regulatory and self-regulatory matters, a “Results may vary” disclosure does not adequately satisfy an advertiser’s burden to disclose the results that may be typically expected by consumers.

ERSP therefore recommended that iMMACC discontinue any earnings claims until it can support income statements with reliable consumer data.

The company, in its marketer’s statement, said that it would follow ERSP’s recommendations and that it “…welcome[s] the opportunity to make the changes and modifications that your organization has recommended we take action on.”

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

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Premium Nutraceuticals, LLC can support certain claims for Testoril, a dietary supplement intended to increase testosterone levels.

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.

During the course of ERSP’s review of online advertising for the product, the marketer informed ERSP that it had voluntarily discontinued a number of the claims at issue, including:

• “Increase your physical stamina, Diminish Wrinkles & Ankle spots, Speed up your Metabolism, Restore your Hair Condition & Color, Firm & Smooth your skin, Decrease your Body Fat, Increase your Lean Muscle Mass”
• “Increase testosterone production by 75%"
• “Testoril™ is an all-natural daily supplement, formulated with a series of premium herbals, amino acids and nutrients that have been individually shown to kick-start your hormone production.”

However, the marketer indicated it will continue to use the following claims:

• “A DAILY SUPPLEMENT OF TESTORIL CAN HELP BOOST YOUR TESTOSTERONE NATURALLY”
• “Perhaps best of all, Testoril is available without a prescription”

Following its review of the evidence in the record, ERSP recommended that if the advertiser uses the core claim that Testoril can boost testosterone, it do in the qualified context of using Testoril in conjunction with a resistance training regimen.

ERSP noted in its decision that it has no objection to Premium Nutraceuticals making a core claim that Testoril is available without a prescription, so long as it does not communicate the claim in a comparative context with competitive prescription drug products.

The company, in its marketer’s statement, said “We are committed to continually educating ourselves on any new changes or guidelines created by the FTC, NARC, BBB, ASRC and ERSP. We strive to work with these organizations in an effort to self-regulate sales copy and ensure that the internet remains a safe place all consumers."

ERSP Finds Kowa Health Care America, Inc. Can Support Performance Claims for ‘Okinawa Life,’ Recommends Marketer Modify Certain Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Kowa Health Care America, Inc. (“Kowa”) can support general performance claims for Okinawa Life, a dietary supplement marketed as providing a variety of health benefits. However, ERSP recommended that Kowa 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 the attention of ERSP pursuant to its ongoing monitoring program.

ERSP reviewed broadcast and online advertising for Okinawa Life and identified several claims for review, including:

• “…Made exclusively in Japan, Okinawa Life is a dietary supplement created to give your body many of the healthy nutrients and benefits you would get from eating traditional Okinawan food.”
• “Like healthy aging supplements, Okinawa Life™ delivers nutrients associated with vitality, longevity and immunity.” and “Promotes & supports: Vitality, Longevity, Immune Health"
• “Our study showed that the key food ingredients of the traditional Okinawan diet, are an integral aspect of the secret to their longevity and good health. These ingredients are also found in Okinawa Life.”
• “After a 25 year study, an international team of researchers determined that the long life of Okinawans is due to their lifestyle and diet of fish and vegetables.”
• “Ingredients include:
• Isoflavone found in high quantities of traditional tofu of Okinawa promotes an antioxidant effect that fights free radical damage at the cellular level on the human body.
• Zedoary - an herb similar to turmeric that helps to aid digestion.
• Goya - a bitter melon gourd, the nutritional king of the Okinawa diet.”

Kowa explained to ERSP that the Okinawa Life formula consists of several ingredients (i.e., isoflavones, zedoary, and goya) derived from foods typically associated with the Okinawan diet. ERSP agreed that the impact of the Okinawan diet on the longevity of native Okinawans has been well documented in a number of articles. ERSP determined that it is not inappropriate for the marketer to communicate that Okinawa Life was formulated to include many of the same ingredients found in the Okinawan diet.

However, while Kowa provided support for claims regarding the nutritional benefits of soy isoflavones, ERSP determined that claims related to zedoary and goya were not adequately supported. As a result, ERSP recommended Kowa modify its advertising to discontinue references to goya and zedoary in a context that implies to consumers that the dosages of these ingredients in Okinawa Life are nutritionally beneficial.

ERSP also determined that claims regarding the 25 year study were truthful and accurate as communicated in the advertising.

The company, in its marketer’s statement, said “Kowa Health Care America, Inc. appreciates the opportunity to participate in the Electronic Retailing Self-Regulation Program’s (“ERSP”) self-regulatory process, and we welcome ERSP’s decision regarding advertising for the Okinawa Life™ dietary supplement.  We are pleased ERSP determined that scientific evidence demonstrates that the soy isoflavones in Okinawa Life support lower cholesterol levels, improved endothelial function, and cardiovascular health.  We will modify advertising for Okinawa Life in accordance with ERSP’s recommendations.”

ERSP Finds Migralex, Inc. Provided Reasonable Basis for Advertising Claims

The Electronic Retailing Self-Regulation Program (ERSP) has determined that Migralex, Inc. can support performance and establishment claims for Migralex, an over-the-counter product intended for the treatment of headaches.

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 for Migralex and identified several claims for review, including:

• “Patients are raving about Migralex because it works and here is why:
• Doctor Developed
• Unique combination of proprietary ingredients
• Rapid release formula designed to relieve tough headaches
• contains no caffeine, no sodium, no preservatives
• Is gentle on the stomach”
• “Fast acting formula designed to treat tough headaches.”
• “Patented scientific formula”
• “Dr. Mauskop’s Migralex, a patented, clinically proven, breakthrough formula is now available as an over-the-counter treatment for many kinds of headaches, including:
• Tension Headaches
• Menstrual Headaches
• Sinus Headaches
• Exertion Headaches
• Stress Headaches
• Neck Strain Headaches”

During the course of ERSP’s inquiry, the marketer asserted that it had voluntarily discontinued a number of the claims cited by ERSP and noted that several of the original claims were taken from an outdated version of the product’s website and commercial.

Migralex, Inc. explained that the key ingredient in its product is aspirin, and provided several studies to supports its performance and establishment claims. Following its review of the evidence in the record, ERSP determined that a “clinically proven” claim for the active ingredient – aspirin – is adequately supported.

With respect to the five performance attributes of the product (“doctor developed,” “unique combination of proprietary ingredients,” “rapid release formula designed to relieve tough headaches,” “contains no caffeine, no sodium, no preservatives,” and “is gentle on the stomach”), ERSP agreed that the claims truthfully describe several distinguishing characteristics of Migralex.

Further, ERSP found that claims regarding “rapid relief” and “fast acting” are appropriately disseminated in the advertising.

The company, in its marketer’s statement, said “Migralex appreciates the opportunity to participate in the ERSP self-regulatory process and is pleased that ERSP has agreed that the current claims being made for Migralex are truthful and accurate.”