| U.S. Federal Trade Commission |
FTC News Release, Jan 4, 2007
Federal Trade Commission Reaches “New Year’s” Resolutions with Four Major Weight-Control Pill Marketers
FTC Recovers $25 Million to Settle Allegations of Deceptive Marketing for Xenadrine EFX, CortiSlim, TrimSpa, and One-A-Day WeightSmart
The FTC has filed complaints in four separate cases
alleging that weight-loss and weight-control claims were not
supported by competent and reliable scientific evidence.
Marketers of the four products –Xenadrine EFX, CortiSlim,
TrimSpa, and One-A-Day WeightSmart – have settled with the
FTC, surrendered cash and other assets worth at least $25
million, and agreed to limit their future advertising
claims.
“You won’t find weight loss in a bottle of pills that
claims it has the latest scientific breakthrough or miracle
ingredient,” said FTC Chairman Deborah Platt Majoras. “Paying
for fad science is a good way to lose cash, not pounds.”
Xenadrine EFX
Two marketers of Xenadrine EFX will pay at least $8 million
and as much as $12.8 million to settle FTC allegations that
Xenadrine EFX’s weight-loss claims were false and
unsubstantiated. The funds will be used for consumer redress.
In a bankruptcy case not involving the Commission, the
defendants have also agreed to pay at least an additional
$22.75 million to settle claims brought by creditors and
consumers, including personal injury claims for an earlier
ephedra-based product.
Xenadrine EFX, which contains, among other ingredients,
green tea extract (EGCG), caffeine, and bitter orange
(Citrus aurantium), was advertised heavily in print
and on television, including in such publications as
People, TV Guide, Cosmopolitan, and Men’s Fitness.
Xenadrine EFX advertising also appeared in Spanish-language
publications.
The FTC’s complaint alleged that the defendants made false
or unsubstantiated claims for Xenadrine EFX, including that it
was clinically proven to cause rapid and substantial weight
loss and clinically proven to be more effective than leading
ephedrine-based diet products. According to the complaint,
Robert Chinery commissioned several studies of Xenadrine EFX,
none of which showed substantial weight loss. The complaint
alleged that in one of these studies, subjects taking
Xenadrine EFX lost an average of only 1.5 pounds over the
10-week study, while a control group taking a placebo lost an
average of 2.5 pounds over the same period.
The complaint also alleged that Xenadrine EFX
advertisements falsely represented that persons appearing in
the ads achieved the reported weight loss solely by using
Xenadrine EFX. According to the FTC complaint, consumer
endorsers lost weight by engaging in rigorous diet and/or
exercise programs. In addition, the endorsers were paid from
$1,000 to $20,000 in connection with their testimonials;
according to the complaint, Xenadrine EFX advertisements
failed to disclose those payments.
The stipulated federal court order with Robert Chinery, Jr.
and RTC Research & Development, LLC (“RTC”) prohibits
certain claims regarding Xenadrine EFX and prohibits all
claims regarding the health benefits, performance, efficacy,
safety, or side effects of any weight-loss product, dietary
supplement, food, drug, or device, unless the representation
is true, not misleading, and substantiated by competent and
reliable scientific evidence. The settlement also prohibits
misrepresentations about any test or study. In addition, the
order prohibits misrepresentations of the actual experience of
any user or endorser and requires clear and prominent
disclosure of any relationship that would materially affect
the weight or credibility given to a user testimonial or
endorsement. Finally, Robert Chinery and RTC cannot use their
settlement with the Commission as a basis for seeking a cash
refund of Xenadrine EFX-related income taxes that they
previously reported as paid.
CortiSlim and CortiStress
The seven marketers of CortiSlim and CortiStress will
surrender, in total, assets worth at least $12 million to
settle FTC charges that they made false and unsubstantiated
claims that their products can cause weight loss and reduce
the risk of, or prevent, serious health conditions. In the
final three settlement agreements announced today, the FTC
will recover $8.4 million in cash, along with proceeds from
the sale of a residence acquired with CortiSlim profits. The
settlements also require the two individual defendants to
liquidate tax shelters and transfer to the Commission any
funds that remain after paying taxes and penalties. In two
earlier settlement agreements, the defendants turned over $1.5
million in cash, a boat, a truck, a real estate interest, and
proceeds from a tax shelter. The funds recovered from the
seven defendants will be used for consumer redress.
The advertising campaign for CortiSlim ran nationwide,
including ads on broadcast and cable television, radio, print
media, and the Internet. The FTC’s complaint alleged that
advertising claims about CortiSlim’s ability to cause rapid,
substantial, and permanent weight loss in all users were false
or unsubstantiated, as were claims about CortiStress’s ability
to reduce the risk of osteoporosis, obesity, diabetes,
Alzheimer’s disease, cancer, and cardiovascular disease. The
FTC also alleged that CortiSlim and CortiStress infomercials
were deceptively formatted to appear as talk shows rather than
advertisements.
The final settlements announced today are with Stephen F.
Cheng and his company, Window Rock Enterprises, Inc., and with
Gregory S. Cynaumon and his company, Infinity Advertising,
Inc. All of the settlements bar misrepresentations of any
tests or studies and prohibit claims about the performance,
effects on weight, or other health benefits of any dietary
supplement, food, drug, cosmetic, or device unless the claims
are true, not misleading, and substantiated by competent and
reliable scientific evidence. The stipulated orders prohibit
the use of deceptively formatted television and radio
advertisements. In addition, the defendants cannot use their
settlement with the Commission as a basis for seeking a cash
refund of income taxes that they reported as paid.
TrimSpa
The marketers of TrimSpa will pay $1.5 million to settle
FTC allegations that their weight-loss claims were
unsubstantiated. According to the FTC’s complaint, the
marketers had inadequate scientific evidence to support their
advertising claims that TrimSpa causes rapid and substantial
weight loss and that one of its ingredients, Hoodia
gordonii, enables users to lose substantial amounts of
weight by suppressing appetite.
Many ads for “TrimSpa Completely Ephedra Free Formula X32”
featured testimonials. Celebrity Anna Nicole Smith claimed to
have lost 69 pounds in eight months by using TrimSpa.
Other advertising claims included “Your high speed dream
body diet pill” and “It makes losing 30, 50, even 70 pounds
(or however many pounds you need to lose) painless.”
TrimSpa ads appeared on television, in magazines, on radio,
and in local newspapers. TrimSpa was also promoted on a Web
site, at some NASCAR events, and other live events.
The FTC consent agreement requires TrimSpa’s marketers –
Goen Technologies Corp., Nutramerica Corp., TrimSpa, Inc., and
Alexander Szynalski, also known as Alexander Goen – to pay
$1.5 million. The agreement also prohibits the marketers from
making any claims about the health benefits, performance,
efficacy, safety, or side effects of TrimSpa, Hoodia
gordonii, or any dietary supplement, food, drug, or
health-related service or program, unless the claims are true,
not misleading, and substantiated by competent and reliable
scientific evidence.
One-A-Day WeightSmart
The Bayer Corporation will pay a $3.2 million civil penalty
to settle FTC allegations that advertisements for One-A-Day
WeightSmart multivitamins violated an earlier Commission order
requiring all health claims for One-A-Day brand vitamins to be
supported by competent and reliable scientific evidence.
Bayer ran a national advertising campaign for One-A-Day
WeightSmart, which contains EGCG (epigallocatechin gallate), a
green tea extract. Bayer also advertised on television, radio,
and the Internet, and in newspapers and magazines, such as
RedBook, Family Circle, and TV Guide.
Advertising claims included statements such as:
“Just in! Most women over 30 can gain 10 pounds a decade,
due in part to slowing metabolism.… So eat right, exercise,
and take One-A-Day WeightSmart. The complete multi-vitamin
with EGCG to enhance metabolism.”
“One-A-Day WeightSmart. The first and only complete
multivitamin with an ingredient to enhance your metabolism.
EGCG, a natural green tea extract, to help you while you
manage your weight.”
The complaint alleges that Bayer Corporation marketed
One-A-Day WeightSmart with unsubstantiated claims that it
- increases metabolism;
- enhances metabolism through its EGCG content;
- helps prevent some of the weight gain associated with a
decline in metabolism in users over age 30; and
- helps users control their weight by enhancing their
metabolism.
The FTC alleges that these unsubstantiated claims violate a
1991 Commission order against Bayer’s predecessor, Miles Inc.,
that require all claims about the benefits of One-A-Day brand
products to be substantiated by competent and reliable
scientific evidence.
In addition to the $3.2 million civil penalty, Bayer is
prohibited from violating the FTC order and from making
unsubstantiated representations regarding the benefits,
performance, efficacy, safety, or side effects of any dietary
supplement, multivitamin, or weight-control product.
The FTC acknowledges the National Advertising Division of
the Council of Better Business Bureaus for its referrals of
some of these cases.
The Commission vote to accept the Bayer settlement was 5-0.
At the Commission’s request, the Department of Justice filed
the complaint and proposed consent decree on January 3, 2007,
in the U.S. District Court for the District of New Jersey.
The Commission vote to accept the TrimSpa consent
agreement, subject to public comment, was 4-0, with
Commissioner Rosch recused. The FTC will publish an
announcement regarding the agreement in the Federal Register.
The agreement will be subject to public comment for 30 days,
beginning today and ending February 5, 2007. Comments should
be addressed to the FTC, Office of the Secretary, Room H-135,
600 Pennsylvania Avenue, N.W., Washington, DC 20580. The FTC
requests that any comment filed in paper form be sent by
courier or overnight service, if possible, because U.S. postal
mail in the Washington area and at the Commission is subject
to delay due to heightened security precautions.
The Commission votes to authorize staff to file the
CortiSlim stipulated final orders were both 5-0. The
stipulated final orders for permanent injunction were filed in
the U.S. District Court for the Central District of California
on October 3, 2006 for Stephen Cheng and Window Rock
Enterprises, Inc. and on January 3, 2007 for Gregory Cynaumon
and Infinity Advertising, Inc.
The Commission vote to authorize staff to file the
Xenadrine EFX stipulated final order was 5-0. The stipulated
final order for permanent injunction was filed in the U.S.
District Court for the District of New Jersey on December 26,
2006.
Note: The proposed consent decree and the stipulated final
orders are for settlement purposes only and do not constitute
admissions by the settling defendants of law violations. They
are subject to court approval and have the force of law when
signed by the judge. Likewise, the administrative consent
agreement is for settlement purposes only and does not
constitute an admission of a law violation. When the
Commission issues a consent agreement on a final basis, it
carries the force of law with respect to future actions. Each
violation of such an order may result in a civil penalty of
$11,000.
The text in this article was prepared by the U.S. Federal Trade Commission.