| U.S. Federal Trade Commission |
FTC News Release, July 13, 2005
FTC Takes Action Against Marketers of Top-Selling Xenadrine EFX
The Federal Trade Commission has
filed a federal district court complaint charging Robert
Chinery, Jr., Tracy Chinery, and their company, RTC Research
& Development, LLC (the Chinery defendants) with making
misleading weight loss claims for the popular dietary
supplement Xenadrine EFX.
In addition, the Commission has
accepted a consent agreement with another group of entities,
Cytodyne, LLC, Evergood Products Corp., and Melvin Rich (the
Rich respondents), for their role in the advertising and
marketing of Xenadrine EFX, which contains, among other
ingredients, green tea extract, yerba mate, and bitter orange.
A 120-tablet bottle – a one-month supply – retailed for
approximately $40. Since its introduction in 2002, Xenadrine
EFX’s sales have topped $160 million.
According to the FTC, the defendants and
respondents advertised Xenadrine EFX heavily in print and on
TV, including in such publications as People, TV Guide,
Cosmopolitan, Glamour, Let’s Live, Men’s Fitness, and Women’s
World. They also disseminated Spanish language ads for
Xenadrine EFX. The advertisements claimed that Xenadrine EFX
causes rapid and substantial weight and fat loss, such weight
loss without the need to diet or exercise, permanent or
long-term weight loss, and is clinically proven to work. The
ads relied heavily on testimonials from supposedly satisfied
customers, some of whom claimed to have lost over 100 pounds.
The Chinery Defendants
The FTC’s complaint alleges that the New
Jersey-based Chinery defendants made false and 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
alleges 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 alleges that the
defendants 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, in fact, lost weight by engaging in rigorous diet
and/or exercise programs. The complaint alleges that the
defendants also failed to disclose that the endorsers were
paid from $1,000 to $20,000 in connection with their
testimonials.
Another company controlled by the Chinery
defendants, Nutraquest, was not named in the complaint; it is
currently in bankruptcy and facing numerous product liability,
class action, and advertising claims relating to an ephedra
product, Xenadrine RFA-1.
The Rich
Respondents
The New York-based Rich respondents have
entered into an administrative settlement with the FTC. The
consent order requires the respondents to pay $100,000 to the
FTC. It also prohibits the Rich respondents from claiming that
Xenadrine EFX or any other substantially similar product
causes rapid and substantial weight or fat loss and prohibits
the claim that any weight-loss product causes rapid and
substantial weight loss without diet or exercise.
The settlement further prohibits the
respondents from claiming that any weight-loss product,
dietary supplement, food, drug, or device causes weight or fat
loss, causes permanent or long-term weight loss, or causes
users to lose weight or fat without diet or exercise unless
they have competent and reliable scientific evidence to
substantiate the claims. It also requires that the respondents
have competent and reliable scientific evidence for any claims
they make about the health benefits, performance, efficacy,
safety, or side effects of any such product and prohibits them
from misrepresenting any test, study, or research for any such
product.
In addition, the settlement prohibits the
respondents from misrepresenting the experience described in
any user testimonials for any weight loss product, dietary
supplement, food, drug or device. It requires the respondents
to disclose any material connection – including monetary
payments – between the endorser and the respondents or any
person or entity involved in manufacturing, marketing, or
selling the product.
The Commission vote to authorize the staff
to file the complaint against the Chinery defendants was 5-0.
The complaint was filed in the U.S. District Court for the
District of New Jersey on July 11, 2005.
The Commission vote to
accept the proposed consent agreement with the Rich
respondents for public comment was 5-0. The FTC
will publish an announcement regarding the agreement in the
Federal Register shortly. The agreement will be subject to
public comment for 30 days, beginning today and continuing
through August 10, 2005, after which the Commission will
decide whether to make it final. Comments should be addressed
to the FTC, Office of the Secretary, Room H-159, 600
Pennsylvania Avenue, N.W., Washington, DC 20580. The FTC is
requesting that any comment filed in paper form near the end
of the public comment period 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.
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.