Marketers of Smoke Away Pay $1.3 Million to Settle FTC Charges

The marketers of “Smoke Away” have settled Federal Trade Commission charges that they deceptively marketed the dietary supplement kits by claiming they would allow smokers to quit smoking quickly, easily, permanently, and without cravings or other side effects. The FTC alleged the defendants did not have a reasonable basis for the claims they made about Smoke Away or for their claims that it is more effective than FDA-approved smoking-cessation products. The FTC also charged that two doctors who endorsed Smoke Away in advertisements did not properly use their expertise, and that one, a chiropractor, did not actually have the expertise she was represented as having.

The company marketing Smoke Away and its owner have agreed to pay $1.3 million to settle the charges. They also are prohibited from making any claims about the benefits, performance, efficacy, safety, or side effects of Smoke Away or any other smoking cessation product or program unless those claims are true, non-misleading, and substantiated. All of the defendants are prohibited from making any claims about the benefits, performance, or efficacy of any food, drug, or dietary supplement unless those claims are backed by scientific evidence. If either doctor is endorsing one of those products as an expert, they must actually have exercised their expertise by examining or testing the product. The chiropractor cannot misrepresent her expertise, training, and experience.

The FTC filed a complaint against Emerson Direct, Inc. (doing business as the Council on Natural Health) of Naples, Florida, the corporation that marketed Smoke Away; its owner Michael J. Connors, also of Naples, Florida; Thomas De Blasio, M.D., a physician from Manalapan, New Jersey; and Sherry Bresnahan, D.C., a chiropractor from Algonquin, Illinois. Emerson Direct marketed Smoke Away, while De Blasio and Bresnahan appeared as expert endorsers in advertisements.

Emerson Direct and Connors offered two versions of Smoke Away. Each version included various dietary supplements made of combinations of vitamins, herbs, and other ingredients.

The FTC’s complaint challenges a number of claims made about Smoke Away in a national television infomercial, 60- and 120-second national television ads, 60-second radio spots, and on Web sites. Specifically, the FTC alleges the advertising claimed that:

• Smoke Away enables smokers to quit smoking in seven days or less;
• Smoke Away enables smokers to quit smoking quickly, effortlessly, and permanently;
• Smoke Away eliminates nicotine cravings;
• Smoke Away users have no withdrawal symptoms or side effects, such as weight gain, insomnia, or tension; and
• Smoke Away is more effective than nicotine patches, nicotine gum, and prescription medications for smoking cessation.

The FTC’s complaint further alleges that those five claims made by Emerson Direct and Connors were false or unsubstantiated, and that Emerson Direct and Connors also misrepresented that they provide timely refunds to consumers who requested such refunds. The FTC also alleged that Emerson Direct, Connors, and Bresnahan misrepresented that Bresnahan was an expert in nicotine addiction or smoking cessation. Finally, the complaint alleges that Bresnahan and De Blasio both made the five claims listed above concerning Smoke Away, and that they did not have a reasonable basis for those representations or exercise their purported expertise in the fields of nicotine addiction or smoking cessation by adequately testing or examining Smoke Away.

The FTC filed three separate orders to settle the charges against these defendants. The Commission’s settlement with Emerson Direct and Connors prohibits any claims about the benefits, performance, efficacy, safety, or side effects of any smoking cessation product or program, unless those claims are true, non-misleading and supported by competent and reliable scientific evidence at the time they are made. It also requires that Emerson Direct and Connors have such substantiation for any claim about the benefits, performance, or efficacy of any food, drug, or dietary supplement; prohibits them from misrepresenting in connection with the marketing and sale of any smoking cessation product or program or any food, drug, or dietary supplement that any person, organization, or group is an expert with respect to any endorsement message provided by that person, organization, or group; prohibits them from misrepresenting any material aspect of their refund policy in connection with the marketing and sale of any smoking cessation product or program; and requires them to make timely refunds to consumers who request them in the future.

The order against Emerson Direct and Connors requires them to pay $1.3 million; if they misrepresented their financial condition, the full $61 million suspended judgment will be due. Finally, Emerson Direct and Connors must notify current and future distributors, resellers, and sales agents about the settlement.

The De Blasio order prohibits any claims about the benefits, performance, efficacy, safety, or side effects of any smoking cessation product or program, unless those claims are true, non-misleading, and supported by competent and reliable scientific evidence at the time they are made. It also requires that De Blasio have competent and reliable scientific evidence substantiating any claims he makes about the benefits, performance, or efficacy of any food, drug, or dietary supplement. Furthermore, all such representations that De Blasio makes as an expert endorser must be supported not only by competent and reliable scientific evidence, but also by an actual exercise of his represented expertise.

The Bresnahan order prohibits her from representing herself as an expert in nicotine addiction or smoking cessation in connection with the marketing of any smoking cessation product or program, unless she has the appropriate education, training, or experience that experts in those fields generally recognize as sufficient. It also prohibits her from misrepresenting her profession, expertise, training, or experience in connection with the marketing or sale of any smoking cessation product or program or any food, drug, or dietary supplement. Finally, it requires that she have competent and reliable scientific evidence substantiating any claims she makes about the benefits, performance, or efficacy of any smoking cessation product or program or any food, drug, or dietary supplement, and that all such representations that she makes as an expert endorser be supported not only by competent and reliable scientific evidence, but also by an actual exercise of her represented expertise.

All three orders contain reporting and record-keeping provisions to allow the FTC to monitor the defendants’ compliance.

The Commission vote to authorize staff to file the complaint and to approve consents in settlement of the court action was 4-0. The complaints and stipulated final orders were filed in the U.S. District Court for the Middle District of Florida on August 9, 2005, and the orders were entered by the court on August 11, 2005.

NOTE: These stipulated final orders are for settlement purposes only and do not constitute an admission by the defendants of a law violation. Stipulated final orders have the force of law when signed by the judge.

Copies of the complaint and stipulated final orders are available from the FTC’s Web site at http://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint in English or Spanish (bilingual counselors are available to take complaints), or to get free information on any of 150 consumer topics, call toll-free, 1-877-FTC-HELP (1-877-382-4357), or use the complaint form at http://www.ftc.gov. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.