ANALYSIS OF PROPOSED CONSENT ORDER TO AID PUBLIC COMMENT

The Federal Trade Commission has accepted, subject to final approval, an agreement to a proposed consent order from Fitness Quest, Inc. and Robert R. Schnabel, Jr. The agreement would settle a proposed complaint by the Federal Trade Commission that Fitness Quest and Robert R. Schnabel, Jr. engaged in unfair or deceptive acts or practices in violation of Section 5(a) of the Federal Trade Commission Act.

The proposed consent order has been placed on the public record for sixty (60) days for reception of comments by interested persons. Comments received during this period will become part of the public record. After sixty (60) days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement or make final the agreement's proposed order.

This matter concerns advertising practices related to the sale of exercise equipment and weight-loss products, including the "Airofit," "SkyTrek" and "Gazelle Glider," exercise gliders, and the "Ab Isolator" and "Abs Only Machine" abdominal exercise devices. The proposed complaint charges that, through the use of statements contained in its advertisements and promotional materials, the respondents made the following unsubstantiated representations for their exercise gliders: A) Under conditions of ordinary use, the Airofit (1) burns calories at a rate of up to 1,000 per hour; (2) burns three times more calories than burned while walking; (3) burns nearly twice the calories burned while cross-country skiing or exercising on a treadmill; (4) burns significantly more calories than are burned while swimming, bicycling or doing step aerobics; and (5) causes significant weight loss; B) Testimonials from consumers appearing in advertisements for the Airofit reflect the typical or ordinary experience of members of the public who use the product; C) Under conditions of ordinary use the SkyTrek (1) burns calories at a rate of up to 1,000 per hour; (2) burns three times more calories than burned while walking at 3 m.p.h.; and (3) burns nearly two times the calories burned while cross country skiing at 5 m.p.h.; and D) Under conditions of ordinary use the Gazelle Glider (1) burns calories at a rate of up to 1,000 per hour; (2) burns three times more calories than burned while walking at 3 m.p.h.; (3) burns nearly twice the calories burned while cross country skiing at 5 m.p.h.; and (4) burns more calories than burned while running at 5.5 m.p.h.

The proposed complaint also charges that the respondents made the following unsubstantiated representations for their abdominal exercise devices: A) The Ab Isolator is twice as effective as regular sit-ups; B) The Ab Isolator is more effective than other abdominal exercise devices; C) Use of the Ab Isolator three minutes a day results in a significantly reduced waistline in thirty days; D) Use of the Ab Isolator results in a significant reduction in clothing size and waistline; E) Testimonials from consumers appearing in advertisements for the Ab Isolator reflect the typical or ordinary experience of members of the public who use the product; and F) The Abs Only Machine is twice as effective as regular sit-ups.

The proposed consent order contains provisions designed to prevent the respondents from engaging in similar acts and practices in the future. Part I of the proposed order prohibits the respondents from making any representation about the benefits, performance or efficacy of any exercise equipment or weight-loss product unless, at the time they make the representation, they possess and rely upon competent and reliable evidence, which when appropriate must be scientific evidence, that substantiates the representation. Part I also provides that nothing in the order shall prohibit the respondents from making a truthful statement that merely describes the existence, design, instructions for use, or content of any such product.

Part II of the proposed order prohibits the respondents from representing that the experience represented by any user testimonial or endorsement of any exercise equipment or weight-loss product represents the typical or ordinary experience of members of the public who use the product unless either: A) at the time it is made, the respondents possess and rely upon competent and reliable evidence that substantiates the representation; or B) the respondents disclose, clearly and prominently, and in close proximity to the endorsement or testimonial, either (1) what the generally expected results would be for users of the product; or (2) the limited applicability of the endorser's experience to what consumers may generally expect to achieve. Part II lists six statements that would satisfy the disclosure requirement:

(a) "You should not expect to experience these results."

(b) "This result is not typical. You may not do as well."

(c) "This result is not typical. You may be less successful."

(d) " 's success is not typical. You may not do as well."

(e) " 's experience is not typical. You may achieve less."

(f) "Results not typical."

The proposed order also contains standard provisions regarding record-keeping, notification of changes in the respondents' status, the filing of a compliance report, and termination of the order. In addition, the proposed order contains a provision requiring distribution of the order that sunsets after three years.

The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the agreement and the proposed order or to modify their terms in any way.