Body Solutions Products Come under Fire by the FTC

The Federal Trade Commission filed suit today against the marketers of the widely advertised product, Body Solutions Evening Weight Loss Formula (Evening Formula). The FTC charged Mark Nutritionals, Inc., based in San Antonio, Texas, and its officers, Harry Siskind and Edward G. D'Alessandro, Jr. with making false and unsubstantiated claims for Evening Formula. According to the complaint, the defendants peddled their product using both English and Spanish language testimonial endorsements from popular radio disk jockeys on more than 650 radio stations in 110 cities nationwide. Through these DJs and the company's website, the defendants claimed that their product offered consumers the unique opportunity to lose substantial and permanent weight without diet or exercise. They further claimed that users could consume substantial amounts of high calorie foods and still lose weight.

This is the first law enforcement action taken by the FTC since releasing its "Report on Weight-Loss Advertising: An Analysis of Current Trends" and since conducting its workshop on weight loss advertising on November 19. The workshop discussed the impact of deceptive ads on public health and explored new approaches for fighting the proliferation of misleading claims for weight-loss products.

"We intend to maintain an aggressive law enforcement program," said J. Howard Beales, III, Director of the FTC's Bureau of Consumer Protection. "But to solve this problem, we also need help from responsible members of the media."

Since 1999, the defendants had a total of more than $190 million in sales of their Body Solutions line of products. In its complaint filed the federal district court, the FTC alleges that the defendants made sales primarily through the use of deceptive radio advertisements. The thirty to sixty second "radio spots" aired daily in English and Spanish on radio stations across the U.S. Typically, the ads were read by local radio personalities who purportedly used the product and were presenting their personal experience. The radio spots contained statements such as:

• "It helped me lose 36 pounds and it helps me maintain through the holidays. I mean, I ate so much over Thanksgiving, I still have turkey burps. But thanks to Body Solutions, I keep the weight off and now I'm ready for Christmas."
   
• "Look, I've lost 25 pounds. . . . This is the program where you eat what you want. And thank you Body Solutions. I have another full room in my house. The bench that I used for all my weights, that's gone. . . . I've replaced it all with a bottle that fits nicely in the corner of my refrigerator."
   
• "Body Solutions ... quite definitely not a diet . . . . And you do it while you sleep, while eating what you want to eat all day. . . ."

Body Solutions Evening Weight Loss Formula is a liquid product that consumers are instructed to take before going to bed and at least three hours after eating or drinking. Consumers ordered Evening Formula by calling a toll-free telephone number or by ordering over the Internet. The defendants recently modified their marketing strategy and began selling Evening Formula through retail outlets such as Wal-Mart, Eckerd's, K-Mart and Walgreen's.

The FTC's complaint alleges that the defendants falsely claimed that Evening Formula will:

• cause substantial weight loss, as much as 20 to 40 pounds, without the need to diet or exercise;
• cause substantial weight loss even if users eat substantial amounts of high calorie foods such as pizza, beer, tacos, nachos, cheese grits, and donuts; and
• cause long-term or permanent weight loss.

In addition, the complaint alleges that the defendants falsely claimed that Evening Formula was clinically proven to cause substantial weight loss, to burn a substantial amount of body fat, and to build a substantial amount of lean muscle mass, all without the need to diet or exercise.

In September 2002, defendant Mark Nutritionals, Inc. filed a voluntary petition for relief under the reorganization provisions of Chapter 11 of the Bankruptcy Code. Although the two individual defendants in this case, Harry Siskind and Edward G. D'Alessandro, Jr., are no longer actively involved, the corporate defendant continues to operate and sell Evening Formula.

The FTC is seeking preliminary and permanent injunctive relief and consumer redress against the defendants. Concurrently with the filing of its complaint in this matter, the FTC filled a stipulated preliminary injunction against Mark Nutritionals, Inc. which when signed by the judge will preliminarily enjoin all deceptive claims and preclude the use of the term "weight loss" in the product's name.

The Commission vote to authorize staff to file the complaint was 5-0. The complaint was filed in the U.S. District Court, Western District of Texas, San Antonio Division, on December 5, 2002.

The FTC's Southwest Region - Dallas - handled the investigation in this matter. A number of state attorneys general, including Texas and Illinois, conducted joint investigations with the FTC and are filing separate law suits against the defendants in state courts.

The FTC has the following tips for consumers who are interested in weight-loss products or programs:

• Products and programs that promise quick and easy weight loss are bogus. To lose weight, you have to lower your intake of calories and increase your physical activity.
• The faster you lose weight, the more likely you are to gain it back. Experts recommend a goal of about a pound a week.
• There are no miracle weight-loss products. Be skeptical of products and programs that claim they can keep weight off permanently. Be skeptical about exaggerated claims.