| U.S. Federal Trade Commission |
FTC News Release, Oct 24, 2003
Court Closes the Doors on Company That Sold “Body Solutions”
FTC Reaches Settlement with Two Defendants
Mark Nutritionals, Inc. and Edward
D’Alessandro, Jr. have agreed to settle federal charges that
they used false and unsubstantiated claims to sell their
weight-loss product. The Federal Trade Commission sued the
marketers of “Body Solutions Evening Weight Loss Formula”
(Evening Formula), including Mark Nutritionals and
D’Alessandro in December, 2002. In separate settlements, Mark
Nutritionals is prohibited from engaging in any business
activity, and D’Alessandro is required to pay $140,000 and is
prohibited from making false or misleading representations
about Evening Formula, or any other weight-loss product,
including through the use of endorsements. The FTC’s case
against one additional defendant is still pending.
On December 5, 2002, the FTC filed a
complaint in federal district court alleging that the
defendants made false and unsubstantiated advertising claims
that Evening Formula causes substantial and permanent weight
loss without diet or exercise. The complaint named as
defendants Mark Nutritionals, Inc., based in San Antonio,
Texas, and its officers, Harry Siskind and Edward
D’Alessandro, Jr. Thereafter, a federal judge entered
stipulated orders for preliminary injunction against all three
defendants and froze the individual assets of Siskind and
D’Alessandro.
Since 1999, the defendants’ sales of
Evening Formula have totaled more than $155 million. The FTC’s
complaint alleged that defendants made sales primarily through
the use of deceptive radio advertisements. The 30 to 60-
second “radio spots” aired daily in English and Spanish on
radio stations across the United States. Typically, local
radio personalities who purportedly used the product read the
ads and presented their personal experience with the product,
the FTC alleged.
Mark Nutritionals
In September 2002, Mark Nutritionals filed
for Chapter 11 reorganization in bankruptcy court. In April
2003, the bankruptcy court, at the recommendation of the FTC
and others, converted Mark Nutritionals’ case to a Chapter 7
liquidation. Since the conversion from Chapter 11 to Chapter
7, Mark Nutritionals has ceased all operations including all
manufacturing, advertising, marketing, and sales. Under the
terms of the stipulated final order announced today, Mark
Nutritionals is barred from engaging in any future business
activity.
D’Alessandro
The stipulated final order with D’Alessandro
prohibits the defendant from making false or misleading
weight-loss representations, including false or misleading
representations that:
- a product will cause substantial weight
loss without reducing caloric intake or increasing
exercise;
- a product will cause substantial weight
loss even if users eat substantial amounts of high calorie
foods; and
- a product will cause substantial
long-term or permanent weight loss.
The order further requires that D’Alessandro
possess competent and reliable scientific evidence to
substantiate any future representations about the safety or
efficacy of any food, drug, dietary supplement, or other
health-related product or service. It also prohibits the use
of the term “weight loss” in the name of Evening Formula or
the use of any other term that communicates the same or
similar meaning, unless at the time the term is used, there is
competent and reliable scientific evidence that substantiates
that such product will cause clinically significant weight
loss. In addition, the settlement prohibits D’Alessandro from
misrepresenting any test, study, or research concerning any
food, drug, dietary supplement, or other health-related
product or service.
The D’Alessandro settlement also requires
him to pay $140,000 to the federal government, and contains a
suspended judgment of $155 million with an avalanche clause
that requires him to pay the amount in full if it is found
that he lied on his financial disclosure statements.
The settlements with both defendants contain
various recordkeeping requirements to assist the FTC in
monitoring defendants’ compliance.
The FTC coordinated its case against Mark
Nutritionals and D’Alessandro with attorney generals from the
States of Texas, Illinois, and Pennsylvania. Those States
filed separate law suits against the defendants in state
court. These States have reached separate agreements with
D’Alessandro enjoining certain activities and requiring the
payment of monetary relief. The State of Texas continues to
pursue Mark Nutritionals in bankruptcy court and has filed a
motion to provide restitution to consumers who purchased
products after September 17, 2002.
The Commission vote to authorize staff to
file the two stipulated final orders was 4-0-1, with
Commissioner Pamela Jones Harbour recused. They were filed in
the U.S. District Court for the Western District of Texas, San
Antonio Division, on October 21, 2003, and require the court’s
approval.
Previous alert on this subject
The text in this article was prepared by the U.S. Federal Trade Commission.