FTC Charges Second Internet Marketer with Misrepresenting Accuracy of HIV Tests

For the second time this year, the Federal Trade Commission has charged an Internet marketer with falsely representing that his HIV tests accurately detected HIV, the virus that causes AIDS. At the request of the FTC, a federal District Court in Orlando, Florida, has issued a temporary restraining order against David M. Rothbart, who does business as Medimax, Inc., stopping him from engaging in the marketing or sale of HIV tests and freezing his assets. The Commission's complaint seeks to permanently enjoin Rothbart from making misrepresentations in connection with marketing or selling tests and to pay consumer redress.

On November 17, the agency announced the settlement of charges that Cyberlinx Marketing, Inc., of Las Vegas, Nevada, made false representations on the Internet that its HIV home test kits accurately detected HIV. Cyberlinx agreed to be banned from marketing any HIV test kits and to pay back the money it received from the sale of its kits.

"The Commission is committed to pursuing Internet marketers of faulty HIV tests," said Jodie Bernstein, Director of the FTC's Bureau of Consumer Protection. "One can scarcely imagine a more pernicious and harmful form of deception."

According to the FTC, Rothbart's Web site, www.medimaxrx.com, identifies Medimax as "[the] industry leader in the distribution of clinically proven and FDA approved diagnostic rapid tests," and offers several tests for a variety of diseases or conditions. A prominent test featured on the Web site is the "HIV - 1/2 Whole Blood Test," a "rapid test" that supposedly gives accurate test results in 15 minutes. These types of HIV tests are not approved for sale in the United States.

The Web site promotes purchase of the HIV test, and invites consumers to order them through the Web site, by facsimile, or by telephone. The complaint alleges that Rothbart, individually and doing business as Medimax, falsely claims that his HIV tests accurately detect HIV infection, in violation of Sections 5(a) and 12 of the FTC Act. The complaint seeks to permanently enjoin Rothbart from making misrepresentations in connection with the marketing or sale of HIV tests, and also seeks equitable monetary relief.

In marketing his HIV tests, Rothbart expressly claims that the tests accurately detect HIV infection in human blood, the FTC said. For example, Rothbart's promotional materials claim: "Results in minutes with compete privacy and 99 % sensitivity and 99% specificity." However, in a Memorandum of Law filed by the FTC in support of its motion for an immediate temporary restraining order against Rothbart, the FTC said that "nine of ten of Rothbart's HIV tests provided false negative results when tested with HIV-positive blood; the tenth test did not work at all."

The complaint was filed in the U.S. District Court, Middle District of Florida, Orlando Division on November 22 ,1999, under seal. The seal was lifted on November 30, 1999. The Commission vote to authorize the filing of the complaint was 5-0.

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 defendant has actually violated the law. The case will be decided by the court.

Copies of the complaint 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; 202-FTC-HELP (202-382-4357); TDD for the hearing impaired 1-866-653-4261. To find out the latest news as it is announced, call the FTC NewsPhone recording at 202-326-2710.

(FTC File No. 002 3007)