| U.S. Federal Trade Commission |
FTC News Release, February 2, 2006
FTC Charges Sellers of Avlimil, Rogisen, And Other Dietary Supplements
Company Charged Customers for “Free” Samples; Made Deceptive Claims for Some Pills
The Federal Trade Commission has filed charges against
marketers selling dietary supplements, including Avlimil and
Rogisen. According to the complaint, the defendants have been
offering consumers “free” samples of their dietary
supplements, and then enrolling them in a program that
automatically shipped them more pills and billed them for
those shipments, even though most consumers never agreed to
participate in the program. The FTC also charged that two of
the products, which were marketed as treatments for female
sexual dysfunction (Avlimil) and night vision problems
(Rogisen), do not live up to the advertising claims.
The defendants, Steve Warshak and his companies, have
marketed and sold more than a dozen dietary supplements –
including Avlimil, Rogisen, and Enzyte – that they claimed
offered a variety of health benefits, including treating male
and female sexual dysfunction, improving sleep, fighting
fatigue, aiding weight loss, and improving skin, night vision,
and heart health, among other benefits. They offered “free”
samples through radio, television, and print ads and through
the Internet, inviting consumers to contact them. The ads have
run on cable television networks, including ESPN, Comedy
Central, Oxygen, Soap Net, and Lifetime, and in magazines such
as Forbes, Playboy, Cosmopolitan, Oprah, Better Homes and
Gardens, Psychology Today, and Redbook.
The FTC charged that after consumers provided credit or
debit card information to pay the $4.50 shipping and handling
fee for the “free” samples, the defendants used that
information to bill the consumers for future shipments that
they sent automatically. The defendants enrolled consumers in
the continuity program and automatically billed them on a
recurring basis without obtaining the consumers’ express,
informed consent and without disclosing the terms and
conditions of the plan, according to the FTC complaint. In
addition, they did not obtain written authorization for
recurring debits. Then, the defendants often made the process
to cancel the shipments very difficult. Consumers attempting
to cancel often encountered busy telephone lines, Web sites
that did not work, and were put on hold indefinitely. Many
consumers who were able to reach a company representative were
nevertheless denied refunds.
For one of their dietary supplements, Avlimil, the FTC
charged that the defendants made false and unsubstantiated
claims. Avlimil was advertised to treat female sexual
dysfunction and provide female sexual enhancement. In their
advertising, the defendants cited a clinical study that
allegedly proved Avlimil was safe and effective. In fact,
according to the complaint, Avlimil’s ingredients differ
substantially from the ingredients in the product actually
tested in the clinical study featured in the Avlimil
advertisements, and defendants made unsubstantiated claims
about the product’s efficacy. The FTC also charged that the
defendants made unsubstantiated claims that another dietary
supplement, Rogisen, improves night vision.
The complaint names Steve Warshak, Berkeley Premium
Nutraceuticals, Inc., LifeKey, Inc., Warner Health Care, Inc.,
and Wagner Nutraceuticals, Inc. as defendants. The complaint
also names Carri Warshak, Harriet Warshak, and Paul Kellogg as
relief defendants – individuals who are not accused of
wrongdoing, but have allegedly received ill-gotten gains and
do not have a legitimate claim to them.
The Commission vote authorizing the staff to file the
complaint was 4-0. The complaint was filed on January 30,
2006, in the U.S. District Court for the Southern District of
Ohio.
NOTE: The Commission files a complaint when it has “reason
to believe” that the law has been or is being violated, and it
appears to the Commission that a proceeding is in the public
interest. The complaint is not a finding or ruling that the
defendants have actually violated the law. The case will be
decided by the court.
The text in this article was prepared by the U.S. Federal Trade Commission.