9623041 UNITED STATES OF
AMERICA In the Matter of ABFLEX, U.S.A., INC., a
corporation, and DOCKET NO. C-3771 COMPLAINT The Federal Trade Commission, having reason to believe that Abflex, U.S.A., Inc., a corporation, and Martin Van Der Hoeven, individually and as an officer of the corporation ("respondents"), have violated the provisions of the Federal Trade Commission Act, and it appearing to the Commission that this proceeding is in the public interest, alleges: 1. Respondent Abflex, U.S.A., Inc. is a California corporation with its principal office or place of business at 5962 La Place Court, Suite 260, Carlsbad, California 92008. 2. Respondent Martin Van Der Hoeven is an officer of the corporate respondent. Individually or in concert with others, he formulates, directs, or controls the policies, acts, or practices of the corporation, including the acts or practices alleged in this complaint. His principal office or place of business is the same as that of Abflex, U.S.A., Inc. 3. Respondents have advertised, labeled, offered for sale, sold, and distributed weight-loss and body-shaping products to the public, including the "Abflex," an abdominal exercise device. 4. The acts and practices of respondents alleged in this complaint have been in or affecting commerce, as "commerce" is defined in Section 4 of the Federal Trade Commission Act. 5. Respondents have disseminated or have caused to be disseminated advertisements for the Abflex, including but not necessarily limited to the attached Exhibits A through E. These advertisements contain the following statements: A. ["The Abflex Home" page (Exhibit A2)] "Welcome to ABFLEX YOU ARE SECONDS AWAY FROM THE ABS YOU'VE ALWAYS WANTED WHAT CAN ABFLEX DO FOR YOU? SEE WHY ABFLEX IS THE BEST MACHINE FOR ABS WHO USES ABFLEX? DON'T BELIEVE US? WATCH THIS! ...." ["What can Abflex do for you?" page (Exhibits A3-A4)] "If you spend 3 minutes a day with the ABFLEX, you will have firm, tight abs. We guarantee it. The ABFLEX Guarantee: If you don't lose 5 inches and 10 pounds within 30 days, you can return the ABFLEX for a full refund. HERE'S HOW: ABFLEX uses four basic exercises to guarantee you the maximum results: ...." ["See why Abflex is the best machine for abs" page (Exhibits A5-A7)] "Q&A How do I know ABFLEX really works? The ABFLEX Guarantee!!! If you don't lose 5 inches and 10 pounds within 30 days, you can return the ABFLEX for a full refund. ...." ["Who uses Abflex" page (Exhibit A8)] "Who uses ABFLEX? The question is: Who DOESN'T use ABFLEX to achieve tighter firmer abs? Join an all-star line-up of celebrities, professional athletes, fitness experts and hundreds of thousands of people across the country and discover the fast, safe way to a firm stomach, a slim waistline and a healthy back.... Besides celebrity users, there are hundreds of thousands of people -- people like you and me -- who simply want the sexiest and flattest abs possible with only 3 minutes a day of exercise. Just look at what people like you are saying about ABFLEX: .... The ABFLEX Guarantee: If you don't lose 5 inches and 10 pounds within 30 days, you can return the ABFLEX for a full refund" ["Just look at what people like you are saying about Abflex" page (Exhibit A9)] "ABFLEX WORKS!! If you don't lose 5 inches and 10 pounds within 30 days, you can return ABFLEX for a full refund." Consumer endorser: "I Lost 12 inches" Consumer endorser: "I Lost 6 inches in 30 Day [sic]" [The advertisement depicts before-and-after photographs of the two consumers.] ["Don't believe us? Watch this!" page (Exhibit A10)] ".... The ABFLEX Guarantee: If you don't lose 5 inches and 10 pounds within 30 days, you can return the ABFLEX for a full refund." (Exhibit A: Internet Advertisement). B. "FLATTEN YOUR STOMACH IN JUST 3 MINUTES A DAY!* ABFLEX...The Fast, Easy Way to a Flat Stomach, Shapely Waistline, and a Healthy Back. * 4 days a week if you follow the workout program." Celebrity endorser: "I look better than I ever have! I workout less, and I eat more, all because of the Abflex." "Home Exercise Machine That Works The Upper, Lower, & Side Abdominals With 1 SIMPLE EXERCISE! Flatten your abs with the Abflex. Because the abdominals are non-jointed muscles, direct resistance is the way to work-out these non-jointed muscles. Abflex's patented direct resistance design zeros right in on those hard to target abdominal muscles. The result: You can have a firm flat stomach, and a slim waistline in just 3 minutes a day, 4 days a week! .... The Abflex targets the abs much better than sit-ups; it doesn't strain your back like sit-ups, and you don't even have to get on the floor to use it! It's so effective, you can see dramatic results in just a few short weeks.... .... INCLUDED: A 1-hour LIFESTYLE FITNESS VIDEO which is like 3 great videos in 1: 1. It's an instructional tape that demonstrates your "3 minutes flat" Abflex workout. 2. It's a 20-minutes aerobics tape. 3. It's a guide to safe-back exercise. Plus, you'll receive a 250-page Abflex nutritional guide, which lists over 2000 low-fat foods, and gives you more than 90 delicious, healthy recipes. And most importantly, you get the Abflex guarantee: If you don't lose 3 to 6 inches and 10 pounds within 30 days, simply return the Abflex for a full refund." (Exhibit B). C. "RECOMMENDED BY ORTHOPEDIC DOCTORS TO FIRM STOMACH AND IMPROVE LOWER BACK PERFORMANCE! ABFLEX The unique Abflex System will provide you with the most complete abdominal workout available anywhere! With an excellent step-by-step video ..., you'll perform a routine that gradually works up to ab-isolating floor crunches. For cardiovascular fitness, there's exciting low-impact aerobics .... Plus a sensible eating program that provides plenty of eating satisfaction. Best of all, Abflex flattens your stomach in just 3 minutes a day - no matter what your current fitness level!" Includes: * Abflex * Medium and Light Resistance Bands and Accessories * 270-Page Abflex Lifestyle Eating Program Book * Instructional Video" (Exhibit C). D. "GET A FLAT, SEXY STOMACH IN JUST 3 MINUTES A DAY! While You Sit In A Chair or Even Watch TV! ABFLEX® The Fastest, Easiest, Safest Way Ever To Achieve: A flat, toned stomach A shapelier waistline A healthier back HERE'S THE MAGIC OF ABFLEX: Only the ABFLEX patented direct resistance design targets all the abdominal muscles simultaneously in one easy exercise to: * Flatten a bulging tummy * Eliminate a spare tire * Trim the waistline * Get rid of those "love handles" at the sides of the waist with its special attachment" Consumer endorser: "Lost 3 inches and 13 pounds in 30 Days!" [The advertisement depicts before-and-after photographs of a consumer.] "DRAMATIC RESULTS IN JUST A FEW WEEKS... AND NO BACK STRAIN! .... ALL THIS FOR JUST 3 EASY PAYMENTS OF $19 95 The Revolutionary New ABFLEX System, plus the 1-hour ABFLEX Lifetime Fitness Instructional Video and the 250 page ABFLEX Nutritional guide which lists over 2,000 low-fat foods and gives you over 90 delicious recipes! .... ABFLEX NO RISK GUARANTEE If you don't lose 3 to 6 inches and 10 pounds within 30 days, simply return the ABFLEX System for a full refund of your purchase price! You have nothing to lose but your paunch!" The advertisement contains a statement at the bottom, left-hand corner, in approximately 4-point type: "The ABFLEX System includes a low-fat diet and aerobic exercise. The results may vary." (Exhibit D). E. "Male Narrator 1: Does your stomach look like this? [The advertisement depicts stomachs of three obese individuals. Superscript: "Does Your Stomach Look Like This?] In just a few minutes a day, it could look like this. [The advertisement depicts three individuals with flat stomachs and slim waistlines. Superscript: "It Could Look Like This."] [Superscript: "If You Start Using This."] If you start using this. It's the revolutionary ABFLEX ... [Superscript: "Abflex"] ... and it's so easy to use.... [The advertisement depicts before and after photographs of a consumer. Superscript: "Your results may vary"] .... Van Allen: We're talking tummies, gang. How do we firm 'em up and slim 'em down. Sometimes it seems hopeless, right? But today we're going to hear about a new machine called the Abflex. Well, they say it can flatten our stomachs in just a few minutes a day.... .... Jennilee Harrison: And let's look at the results some of these people got after just a few weeks on the Abflex System. [The advertisement depicts before-and-after photographs of a consumer. Superscript: "Lost 13 lbs in 30 days. The Abflex program includes a low-fat diet and aerobic exercise."] .... [The advertisement depicts before-and-after photographs of a consumer. Superscript: "Lost 6 inches in 30 days. Your results may vary."] Van Allen: Hey you guys, look at the difference. Jennilee Harrison: And it can work for anybody. Just three minutes a day and you can flatten that tummy right up. Van Allen: That sounds great." Consumer endorser: "You don't even know you are doing, you don't even know you are doing your exercises. And you're doin' it the whole time and pretty soon your stomach is like a brick. And you've lost all that weight." [Superscript: "The Abflex program includes a low-fat diet and aerobic exercise. Your results may vary."] .... Consumer endorser: "After using the Abflex 30 days I lost two inches off my waist and I lost 13 lbs. so I went from a size 36 slacks back to a 34. Perfect." [Superscript: "The Abflex program includes a low-fat diet and aerobic exercise. Your results may vary."] .... "Jennilee Harrison: And for us women who are trying to get rid of that pooch down here and for you guys trying to get rid of the love handles, forget it. This exercise [abdominal crunch] is useless. But, now here, this is the answer. This is the Abflex crunch. .... Jennilee Harrison: Well you can have it. Look at this woman. If you'd like to go down a few sizes, the Abflex System is the fast way to lose those inches." [The advertisement depicts before-and-after photographs of a consumer. Superscript: "Lost 6 inches in 30 days. Best case results. Your results may vary."] Consumer endorser: ".... Well I think in about 21 days I've, I've lost about 2 inches." [Superscript: "The ABFLEX program includes a low fat diet and aerobic exercise."] Consumer endorser: "After 30 days I lost a full 6 inches...." [Superscript: "Your results may vary"] Consumer endorser: "Four and half inches I lost. I was 39 ½ and went down to 35. Boom, just like that." Consumer endorser: "With the Abflex I have lost 5 to 6 inches within 30 days and I have seen the results and so has everybody else. It works great." .... "Announcer: ... it's so effective you can see dramatic results in just a few weeks." [The advertisement depicts a woman demonstrating how many inches she has lost around her waist by wearing jeans, which now are too large for her around the waist. Superscript: "Dramatic Results in a Few Weeks"] Consumer endorser: "Within, I would say, the third or fourth day that I started using it I started noticing tightening, firmness and my pants had started loosening up a little. I kept continuing using it and before I knew it I was back to a 5/6 from a 9/10. It was very dramatic." [Superscript: "Your results may vary."] "Announcer: ... you get the Abflex Guarantee. If you don't lose 3 to 6 inches and 10 pounds within 30 days, simply return the ABFLEX for a full refund of your purchase price. The Abflex, it's the fast way to a flat stomach, a shapely waistline, and a healthy back." [The advertisement depicts a woman demonstrating how many inches she has lost around her waist by wearing jeans, which now are too large for her around the waist. Superscript: "Abflex GUARANTEE If you don't lose 3 to 6 inches and 10 pounds within 30 days, simply return the ABFLEX for a full refund."] .... Consumer endorser: "I saw results in the first five to seven days. I could see visual results of the Abflex program. I lost about an inch to an inch-and-a-half in the waist and also lost five pounds...." [Superscript: "Your results may vary"] .... "Van Allen: ... The Abflex definitely works. Jennilee Harrison: And it can work for anyone. [The advertisement depicts before and after photographs of a consumer. Superscript: "Lost 12 Inches. The Abflex program includes a low-fat diet and aerobic exercise."] Jennilee Harrison: Think about how great you're going to feel when you start using the Abflex... [The advertisement depicts before and after photographs of a consumer. Superscript: "Lost 13 lbs in 30 days. The Abflex program includes a low-fat diet and aerobic exercise."] Jennilee Harrison: ...and you start losing those inches. [The advertisement depicts before and after photographs of a consumer. Superscript: "Lost 6 inches in 30 days. Best case results. Your results may vary."] Jennilee Harrison: Think about how great you're going to feel when you look terrific in your jeans again. Anybody can have a great body; the Abflex makes it easy. Martin Van Der Hoeven: And I guarantee results. If you don't lose three to six inches and 10 pounds within 30 days, you can return the Abflex for a full refund. Jennilee Harrison: It only takes three minutes a day to flatten your tummy.... Van Allen: We can all spare three minutes to get rid of our spare tires, .... It can flatten our stomachs, it can slim our waistlines, ...." (Exhibit E). 6. Through the means described in Paragraph 5, respondents have represented, expressly or by implication, that: A. The Abflex causes fast and significant weight loss. B. Consumers lose at least ten pounds and five inches, or three to six inches, off their waistline within thirty days by using the Abflex for just three minutes a day. C. The Abflex causes weight loss and fat reduction in specific, desired areas of the body. D. Testimonials from consumers appearing in the advertisements for the Abflex reflect the typical or ordinary experience of members of the public who use the product. 7. Through the means described in Paragraph 5, respondents have represented, expressly or by implication, that they possessed and relied upon a reasonable basis that substantiated the representations set forth in Paragraph 6, at the time the representations were made. 8. In truth and in fact, respondents did not possess and rely upon a reasonable basis that substantiated the representations set forth in Paragraph 6, at the time the representations were made. Therefore, the representation set forth in Paragraph 7 was, and is, false or misleading. 9. The acts and practices of respondents as alleged in this complaint constitute unfair or deceptive acts or practices in or affecting commerce in violation of Section 5(a) of the Federal Trade Commission Act. THEREFORE, the Federal Trade Commission this eighteenth day of September, 1997, has issued this complaint against respondents. By the Commission. [Exhibits A-E attached to paper copies of complaint, but not available in electronic form.] |