[Federal Register Volume 61, Number 60 (Wednesday, March 27, 1996)]
[Notices]
[Pages 13497-13503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7294]



=======================================================================
-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION

[File No. 932-3176]


The Diet Workshop, Inc.; The Diet Workshop of Boston, Inc.; 
Consent Agreement With Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Consent agreement.

-----------------------------------------------------------------------

SUMMARY: In settlement of alleged violations of federal law prohibiting 
unfair acts and practices and unfair methods of competition, this 
consent agreement, accepted subject to final Commission approval, would 
prohibit the respondents from misrepresenting the results of any weight 
loss program they offer, require them to have scientific data to back 
up any claims about weight loss and maintenance, and

[[Page 13498]]
mandate that they make certain disclosures in connection with 
maintenance and other claims. The consent agreement settles allegations 
that the respondents engaged in deceptive advertising by making 
unsubstantiated weight loss and weight-loss maintenance claims and by 
implying, without substantiation, that the consumer testimonials they 
used represented the typical experience of dieters on the programs.

DATES: Comments must be received on or before May 28, 1996.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:

Andrew D. Caverly, Boston Regional Office, Federal Trade Commission, 
Suite 810, 101 Merrimac Street, Boston, MA 02114-4719, 617-424-5960.
Gary Cooper, Boston Regional Office, Federal Trade Commission, Suite 
810, 101 Merrimac Street, Boston, MA 02114-4719, 617-424-5960.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of 
the Commission's Rules of Practice (16 CFR 2.34), notice is hereby 
given that the following consent agreement containing a consent order 
to cease and desist, having been filed with and accepted, subject to 
final approval, by the Commission, has been placed on the public record 
for a period of sixty (60) days. Public comment is invited. Such 
comments or views will be considered by the Commission and will be 
available for inspection and copying at its principal office in 
accordance with Section 4.9(b)(6)(ii) of the Commission's Rules of 
Practice (16 CFR 4.9(b)(6)(ii)).

    In the Matter of The Diet Workshop, Inc., and The Diet Workshop 
of Boston, Inc., corporations.

[File No. 932-3176]

Agreement Containing Consent Order To Cease and Desist

    The Federal Trade Commission having initiated an investigation of 
certain acts and practices of The Diet Workshop, Inc. and The Diet 
Workshop of Boston, Inc., corporations (collectively referred to as 
``proposed respondents''), and it now appearing that proposed 
respondents are willing to enter into an agreement containing an order 
to cease and desist from the use of the acts and practices being 
investigated,
    It Is Hereby Agreed by and between The Diet Workshop, Inc., and The 
Diet Workshop of Boston, Inc., by their duly authorized officers, and 
their attorneys, and counsel for the Federal Trade Commission that:
    1. Proposed respondents are Massachusetts corporations, with their 
principal office or place of business located at 1 University Office 
Park, 29 Sawyer Road, Waltham, Massachusetts 02154.
    2. Proposed respondents admit all the jurisdictional facts set 
forth in the attached draft complaint.
    3. Proposed respondents waive:
    (a) Any further procedural steps;
    (b) The requirement that the Commission's decision contain a 
statement of findings of fact and conclusions of law;
    (c) All rights to seek judicial review or otherwise to challenge or 
contest the validity of the Order entered pursuant to this agreement; 
and
    (b) Any claim under the Equal Access to Justice Act, 5 U.S.C. 504.
    4. This agreement shall not become part of the public record of the 
proceeding unless and until it is accepted by the Commission. If this 
agreement is accepted by the Commission, it, together with the attached 
draft complaint, will be placed on the public record for a period of 
sixty (60) days and information in respect thereto publicly released. 
The Commission thereafter may either withdraw its acceptance of this 
agreement and so notify the proposed respondents, in which event it 
will take such action as it may consider appropriate, or issue and 
serve its complaint (in such form as the circumstances may require) and 
decision, in disposition of the proceeding.
    5. This agreement is for settlement purposed only and does not 
constitute an admission by proposed respondents of facts, other than 
jurisdictional facts, or of violations of law as alleged in the draft 
of complaint here attached.
    6. This agreement contemplates that, if it is accepted by the 
Commission, and if such acceptance is not subsequently withdrawn by the 
Commission pursuant to the provisions of Sec. 2.34 of the Commission's 
Rules, the Commission may, without further notice to purposed 
respondents: (a) issue its complaint corresponding in form and 
substance with the attached draft complaint and its decision containing 
the following order to cease and desist in disposition of the 
proceeding; and (b) make information public in respect thereto. When so 
entered, the order to cease and desist shall have the same force and 
effect and may be altered, modified or set aside in the same manner and 
within the same time frame provided by statute for other orders. The 
order shall become final upon service. Delivery by the U.S. Postal 
Service of the complaint and decision containing the agreed-to order to 
proposed respondents' addresses as stated in this agreement shall 
constitute service. Proposed respondents waive any right they may have 
to any other manner of service. The complaint may be used in construing 
the terms of the order, and no agreement, understanding, 
representation, or interpretation not contained in the order or the 
agreement may be used to vary or contradict the terms of the order.
    7. Proposed respondents have read the attached draft complaint and 
the following order. Proposed respondents understand that once the 
order has been issued, they will be required to file one or more 
compliance reports showing that they have fully complied with the 
order. Proposed respondents further understand that they may be liable 
for civil penalties in the amount provided by law for each violation of 
the order after it becomes final.

Order

Definitions

    For the purposes of this Order, the following definitions shall 
apply:
    A. Competent and reliable scientific evidence shall mean those 
tests, analyses, research, studies, or other evidence based on the 
expertise of professionals in the relevant area that has been conducted 
and evaluated in an objective manner by persons qualified to do so, 
using procedures generally accepted in the relevant profession to yield 
accurate and reliable results;
    B. Weight loss program shall mean any program designed to aid 
consumers in weight loss or weight maintenance;
    C. A broadcast medium shall mean any radio or television broadcast, 
cablecast, home video or theatrical release;
    D. For any Order-required disclosure in a print medium to be made 
clearly and prominently or in a clear and prominent manner, it must be 
given both in the same type style and in: (1) twelve (12) point type 
where the representation that triggers the disclosure is given in 
twelve (12) point or larger type; or (2) the same type size as the 
representation that triggers the disclosure where that representation 
is given in a type size that is smaller than twelve (12) point type. 
For any Order-required disclosure given orally in a broadcast medium to 
be made clearly and prominently or in a clear and

[[Page 13499]]
prominent manner, the disclosure must be given at the same volume and 
in the same cadence as the representation that triggers the disclosure;
    E. A short broadcast advertisement shall mean any advertisement of 
thirty seconds or less duration made in a broadcast medium.

I

    It is ordered that respondents, The Diet Workshop, Inc. and The 
Diet Workshop of Boston, Inc., corporations, their successors and 
assigns, and their officers, and respondents' agents, representatives 
and employees, directly or through any corporation, subsidiary, 
division or other device, including franchisees or licensees, in 
connection with the advertising, promotion, offering for sale, or sale 
of any weight loss program in or affecting commerce, as ``commerce'' is 
defined in the Federal Trade Commission Act, do forthwith cease and 
desist from:
    A. Making any representation, directly or by implication, about the 
success of participants on any weight loss program in achieving or 
maintaining weight loss or weight control unless, at the time of making 
any such representation, respondents possess and rely upon competent 
and reliable scientific evidence substantiating the representation, 
provided, further, that for any representation that:
    (1) Any weight loss achieved or maintained through the weight loss 
program is typical or representative of all or any subset of 
participants using the program, said evidence shall, at a minimum, be 
based on a representative sample of:
    (a) All participants who have entered the program, where the 
representation relates to such persons; provided, however, that the 
required sample may exclude those participants who dropped out of the 
program within two weeks of their entrance, or who were unable to 
complete the program due to illness; pregnancy, or change of residence; 
or
    (b) All participants who have completed a particular phase of the 
program or the entire program, where the representation only relates to 
such persons;
    (2) Any weight loss is maintained long-term, said evidence shall, 
at a minimum, be based upon the experience of participants who were 
followed for a period of at least two years from their completion of 
the active maintenance phase of respondents' program or earlier 
termination, as applicable; and
    (3) Any weight loss is maintained permanently, said evidence shall, 
at a minimum, be based upon the experience of participants who were 
followed for a period of time after completing the program that is 
either:
    (a) Generally recognized by experts in the field of treating 
obesity as being of sufficient length for predicting that weight loss 
will be permanent, or
    (b) Demonstrated by competent and reliable survey evidence as being 
of sufficient duration to permit such a prediction.
    B. Representing, directly or by implication, except through 
endorsements or testimonials referred to in paragraph I.E. herein, that 
participants of any weight loss program have successfully maintained 
weight loss, unless respondents disclose, clearly and prominently, and 
in close proximity to such representation, the statement: ``For many 
dieters, weight loss is temporary.''; provided, further, that 
respondents shall not represent, directly or by implication, that the 
above-quoted statement does not apply to dieters in respondents' weight 
loss program; provided, however, that a mere statement about the 
existence, design, or content of a maintenance program shall not, 
without more, be considered a representation that participants of any 
weight loss program have successfully maintained weight loss.
    C. Representing, directly or by implication, except through short 
broadcast advertisements referred to in paragraph I.D. herein, and 
except through endorsements or testimonials referred to in paragraph 
I.E. herein, that participants of any weight loss program have 
successfully maintained weight loss, unless respondents disclose, 
clearly and prominently, and in close proximity to such representation, 
the following information:
    (1) The average percentage of weight loss maintained by those 
participants;
    (2) The duration over which the weight loss was maintained, 
measured from the date that participants ended the active weight loss 
phase of the program, provided, further, that if any portion of the 
time period covered includes participation in a maintenance program(s) 
that follows active weight loss, such fact must also be disclosed; and
    (3) If the participant population referred to is not representative 
of the general participant population for respondents' programs:
    (a) The proportion of the total participant population in 
respondents' programs that those participants represent, expressed in 
terms of a percentage or actual numbers of participants, or
    (b) The statement: ``Diet Workshop makes no claim that this [these] 
result[s] is [are] representative of all participants in the Diet 
Workshop program.'';

Provided, further, that compliance with the obligations of this 
paragraph I.C. in no way relieves respondents of the requirement under 
paragraph I.A. of this Order to substantiate any representation about 
the success of participants on any weight loss program in maintaining 
weight loss.
    D. Representing, directly or by implication, or short broadcast 
advertisements, that participants of any weight loss program have 
successfully maintained weight loss, unless respondents:
    (1) include, clearly and prominently, and in immediate conjunction 
with such representation, the statement: ``Check at our clinics for 
details about our maintenance record.'';
    (2) for a period of time beginning with the date of the first 
broadcast of any such advertisement and ending no sooner than thirty 
days after the last broadcast of such advertisement, comply with the 
following procedures upon the first presentation of any form asking for 
information from a potential client, but in any event before such 
person has entered into any agreement with respondents:
    (a) Give to each potential client a separate document entitled 
``Maintenance Information,'' which shall include all the information 
required by paragraph I.B. and subparagraphs I.C. (1)-(3) of this Order 
and shall be formatted in the exact type size and style as the example 
form below, and shall include the heading (Helvetica 14 pt. bold), 
lead-in (Times Roman 12 pt.), disclosures (Helvetica 14 pt. bold), 
acknowledgement language (Times Roman 12 pt.) and signature block 
therein; provided, further, that no information in addition to that 
required to be included in the document required by this subparagraph 
I.D. (2) shall be included therein:
MAINTENANCE INFORMATION
    You may have seen our recent ad about maintenance success. Here's 
some additional information about our maintenance record.

[Disclosure of maintenance statistics goes here
----------------------------------------------------------------------
______________________________________] For many dieters, weight 
loss is temporary.

I have read this notice.

---------------------------------------------------------------------
(Client Signature)      (Date)

[[Page 13500]]

    (b) Require each potential client to sign such document; and
    (c) Give each client a copy of such document; and

Provided, however, that if any potential participant who does not then 
participate in the program refuses to sign or accept a copy of such 
document, respondents shall so indicate on such document and shall not, 
for that reason alone, be found in breach of this subparagraph I.D.(2); 
and
    (3) Retain in each client file a copy of the signed maintenance 
notice required by this paragraph;

Provided, further, that:
    (i) Compliance with the obligations of this paragraph I.D. in no 
way relieves respondents of the requirement under paragraph I.A. of 
this Order to substantiate any representation about the success of 
participants on any weight loss program in maintaining weight loss; and
    (ii) Respondents must comply with both paragraph I.D. and paragraph 
I.C. of this Order if respondents include in any such short broadcast 
advertisement a representation about maintenance success that states a 
number or percentage, or uses descriptive terms that convey a 
quantitive measure such as ``most of our customers maintain their 
weight loss long-term''; and provided, however, that the provisions of 
paragraph I.D. shall not apply to endorsements or testimonials referred 
to in paragraph I.E. herein.
    E. Using any advertisement containing an endorsement or testimonial 
about weight loss success or weight loss maintenance success by a 
participant or participants of respondent's weight loss program if the 
weight loss success or weight loss maintenance success depicted in the 
advertisement is not representative of what participants in 
respondents' weight loss programs generally achieve, unless respondents 
disclose, clearly and prominently, and in close proximity to the 
endorser's statement of his or her weight loss success or weight loss 
maintenance success:
    (1) What the generally expected success would be for Diet Workshop 
customers in losing weight or maintaining achieved weight loss; 
provided, however, that in determining the generally expected success 
for Diet Workshop customers respondents may exclude those customers who 
dropped out of the program within two weeks of their entrance or who 
were unable to complete the program due to illness, pregnancy, or 
change of residence; or
    (2) One of the following statements:
    (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 do not as well.''
    (e) ``______'s experience is not typical. You may achieve less.''
    (f) ``Results not typical.''
    (g) ``Results not typical of program participants.'';

Provided, further, that is the endorsements or testimonials covered by 
this paragraph are made in a broadcast medium, any disclosure required 
by this paragraph must be communicated in a clear and prominent manner 
and in immediate conjunction with the representation that triggers the 
disclosure; and provided, however, that:
    (i) For endorsements or testimonials about weight loss success, 
respondents can satisfy the requirements of subparagraph I.E.(1) by 
accurately disclosing the generally expected success in the following 
phrase: ``Diet Workshop clients lose an average of __ pounds over an 
average __ week treatment period''; and
    (ii) If the weight loss success or weight loss maintenance success 
depicted in the advertisement is representative of what participants of 
a group or subset clearly defined in the advertisement generally 
achieve, then, in lieu of the disclosures required in either 
subparagraph I.E. (1) or (2) herein, respondents may substitute a clear 
and prominent disclosure of the percentage of all of respondents' 
customers that the group or subset defined in the advertisement 
represents.
    F. Representing, directly or by implication, the rate or speed at 
which participants or prospective participants in any weight loss 
program have lost or will lose weight, unless at the time of making 
such representation, respondents possess and rely upon competent and 
reliable scientific evidence substantiating the representation.
    G. Representing, directly or by implication, that participants or 
prospective participants in respondents' weight loss programs have 
reached or will reach a specified weight within a specified time 
period, unless at the time of making such representation, respondents 
possess and rely upon competent and reliable scientific evidence 
substantiating the representation.
    H. Failing to disclose, clearly and prominently, either (1) to each 
participant who, after the first two weeks on the program, is 
experiencing average weekly weight loss that exceeds two percent (2%) 
of said participant's initial body weight, or three pounds, whichever 
is less, for at least two consecutive weeks, or (2) in writing to all 
participants, when they enter the program, that failure to follow the 
diet instructions and consume the total caloric intake recommended may 
involve the risk of developing serious health complications.
    I. Misrepresenting, directly or by implication, the existence, 
contents, validity, results, conclusions, or interpretations of any 
test or study.
    J. Misrepresenting, directly or by implication, the performance, 
efficacy, or benefits of any weight loss program or weight loss 
product.

II

    It is further ordered that respondents shall notify the Commission 
at least thirty (30) days prior to the effective date of any proposed 
change in the corporate respondents such as dissolution, assignment, or 
sale resulting in the emergence of a successor corporation(s), the 
creation or dissolution of subsidiaries, or any other change in the 
corporations that may affect compliance obligations arising out of this 
Order.

III

    It is further ordered that for three (3) years after the last date 
of dissemination of any representation covered by this Order, 
respondents, or their successors and assigns, shall maintain and upon 
request make available to the Federal Trade Commission for inspection 
and copying:
    A. All materials that were relied upon in disseminating such 
representation; and
    B. All test, reports, studies, surveys, demonstrations or other 
evidence in their possession or control that contradict, qualify, or 
call into question such representation, or the basis relied upon for 
such representation, including complaints from consumers.

IV

    It is further ordered that respondents shall distribute a copy of 
this Order to each of their officers, agents, representatives, 
independent contractors and employees, who is involved in the 
preparation and placement of advertisements or promotional materials or 
in communication with customers or prospective customers or who have 
any responsibilities with respect to the subject matter of this Order, 
and, for a period of five (5) years from the date of entry of this 
Order, distribute same to all future such officers, agents,

[[Page 13501]]
representatives, independent contractors and employees.

V

    It is further ordered that:
    A. Respondents shall distribute a copy of this Order to each of 
their franchisees and licensees and shall contractually bind them to 
comply with the prohibitions and affirmative requirements of this 
Order; respondents may satisfy this contractual requirement by 
incorporating such Order requirements into their current Operations 
Manuals or, if they do not have a current Operations Manual, by 
notifying their franchisees and licensees that failure to comply with 
the provisions of this Order is at variance with respondents' methods, 
standards, and specifications for proper conduct of the franchisee's 
business under the franchise agreement; and
    B. Respondents shall further make reasonable efforts to monitor 
their franchisees' and licensees' compliance with the Order provisions; 
respondents may satisfy this requirement by: (1) Taking reasonable 
steps to notify promptly any franchisee or licensee that respondents 
determine is failing materially or repeatedly to comply with any order 
provision; (2) providing the Federal Trade Commission with the name and 
address of the franchisee or licensee and the nature of the 
noncompliance if the franchisee or licensee fails to comply promptly 
with the relevant Order provision after being so notified; and (3) in 
cases where that franchisee's or licensee's conduct constitutes a 
material or repeated violation of the order, diligently pursuing 
reasonable and appropriate remedies available under their franchise or 
license agreements and applicable state law to bring about a cessation 
of that conduct by the franchisee or licensee; provided, however, that 
respondents' compliance with this Part shall constitute an affirmative 
defense to any civil penalty action arising from an act or practice of 
one of respondents' franchisees or licensees that violates this Order 
where respondents: (a) have not authorized, approved or ratified that 
conduct; (b) have reported that conduct promptly to the Federal Trade 
Commission under this Part; and (c) in cases where that franchisee's or 
licensee's conduct constitutes a material or repeated violation of the 
Order, have diligently pursued reasonable and appropriate remedies 
available under the franchise or license agreement and applicable state 
law to bring about a cessation of that conduct by the franchisee or 
licensee.

VI

    This order will terminate twenty years from the date of its 
issuance, or twenty years from the most recent date that the United 
States or the Federal Trade Commission files a complaint (with or 
without an accompanying consent decree) in federal court alleging any 
violation of the order, whichever comes later; provided, however, that 
the filing of such a complaint will not affect the duration of:
    A. Any paragraph in this order that terminates in less than twenty 
years;
    B. This order's application to any respondent that is not named as 
a defendant in such complaint; and
    C. This order if such complaint is filed after the order has 
terminated pursuant to this paragraph.

Provided further, that if such complaint is dismissed or a federal 
court rules that the respondents did not violate any provision of the 
order, and the dismissal or ruling is either not appealed or upheld on 
appeal, then the order will terminate according to this paragraph as 
though the complaint was never filed, except that the order will not 
terminate between the date such complaint is filed and the later of the 
deadline for appealing such dismissal or ruling and the date such 
dismissal or ruling is upheld on appeal.

VII

    It is further ordered that respondents shall, within sixty (60) 
days after the date of service of this Order, file with the Commission 
a report, in writing, setting forth in detail the manner and form in 
which they have complied with this Order.

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted an agreement to a 
proposed consent order from The Diet Workshop, Inc. and The Diet 
Workshop of Boston, Inc. (hereinafter ``Diet Workshop'' or 
``respondents''), marketers of the Diet Workshop low-calorie diet 
(hereinafter ``LCD'') program. The Diet Workshop diet program is 
offered to the public throughout much of the United States through 
company-owned and franchised centers.
    The proposed consent order has been placed on the public record for 
sixty (60) days for the 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 will decide whether it should withdraw from the agreement 
or make final the agreement's proposed order.
    The Commission's complaint in this matter charges that the proposed 
respondents have made deceptive claims regarding the success consumers 
have had losing weight on the respondents' LCD programs, and 
maintaining their weight loss. Respondents also are charged with having 
made deceptive claims regarding the rate at which consumers lose weight 
while on the respondent's ``Quick Loss'' LCD program. Finally, the 
complaint alleges that the respondents have engaged in the deceptive 
practice of failing to warn consumers whose weight loss progress the 
respondents monitored of the importance to their health of consuming 
all of the food called for in the diet instructions.

Success

    The complaint alleges that the proposed respondents have 
represented, directly or by implication, that most consumers using the 
Diet Workshop LCD programs (1) reach their weight loss goals and (2) 
maintain their weight loss either long-term or permanently. The 
complaint charges that, at the time they were made, the respondents did 
not possess or rely upon a reasonable basis for these representations.
    The complaint alleges further that the respondents have 
represented, directly or by implication, that testimonials from 
consumers appearing in advertisements and promotional materials for the 
Diet Workshop LCD programs reflect the typical or ordinary experience 
of members of the public who have used the programs. The complaint 
charges that the respondents failed to possess or rely upon a 
reasonable basis for these representations.
    The proposed consent order seeks to address the alleged success 
misrepresentations cited in the proposed complaint in several ways. 
First, the order (Part I.A.) requires Diet Workshop to possess a 
reasonable basis consisting of competent and reliable scientific 
evidence substantiating any claim about the success of participants in 
any diet program in achieving or maintaining weight loss. To ensure 
compliance, the order further specifies what this level of evidence 
shall consist of when certain types of success claims are made:
    (1) In the case of claims that weight loss is typical or 
representative of all participants using the program or any subset of 
those participants, that evidence shall be based on a representative 
sample of: (a) All participants who have entered the program, where the 
representation relates to such persons; or (b) all participants who 
have completed a

[[Page 13502]]
particular phase of the program or the entire program, where the 
representation only relates to such persons.
    (2) In the case of claims that any weight loss is maintained long-
term, that evidence shall be based upon the experience of participants 
who were followed for a period of at least two years after their 
completion of the respondents' program, including any periods of 
participation in respondents' maintenance program.
    (3) In the case of claims that weight loss is maintained 
permanently, that evidence shall be based upon the experience of 
participants who were followed for a period of time after completing 
the program that is either: (a) Generally recognized by experts in the 
field of treating obesity as being of sufficient length to constitute a 
reasonable basis for predicting that weight loss will be permanent; or 
(b) demonstrated by competent and reliable survey evidence as being of 
sufficient duration to permit such a prediction.
    Second, as measures to ensure future compliance, the proposed order 
requires the proposed respondents for any claim that participants of 
any diet program have successfully maintained weight loss to disclose 
the fact that ``For many dieters, weight loss is temporary'' (Part 
I.B.), as well as the following information relating to that claim 
(Part I.C.):
    (1) The average percentage of weight loss maintained by those 
participants (e.g., ``60% of achieved weight loss was maintained''),
    (2) The duration over which the weight loss was maintained, 
measured from the date that participants entered the active weight loss 
phase of the program, and the fact that all or a portion of the time 
period covered includes participation in proposed respondents' 
maintenance program(s) that follows active weight loss, if that is the 
case--e.g., ``participants maintain an average of 60% of weight loss 22 
months after active weight loss (includes 18 months on maintenance 
program)'', and
    (3) Where the participant population referred to is not 
representative of the general participant population for that program, 
the proportion of the total participant population that those 
participants represent, expressed in terms of a percentage or actual 
numbers of participants--e.g. ``Participants on maintenance--30% of our 
clients--kept off an average of 66% of the weight for one year 
(includes time on maintenance program)'' or, in lieu of that factual 
disclosure, the statement: ``Diet Workshop makes no claim that this 
result is representative of all participants in the Diet Workshop 
program.''
    Third, for maintenance success claims made in broadcast 
advertisements of thirty seconds or less duration, the proposed order 
(Part I.D.) requires that Diet Workshop, in lieu of making the factual 
disclosures required for such claims by Part I.C.: (1) Include in such 
advertisements the statement ``Check at our centers for details about 
our maintenance record.''; and (2) provide consumers at point-of-sale 
with a required form that includes the factual disclosures required by 
Part I.C., which form must be signed by the client and retained in the 
respondents' client file.
    The proposed order makes clear that this alternative disclosure 
requirement does not relieve Diet Workshop of the obligation to 
substantiate any maintenance success claim, in accordance with Part 
I.A. of the order, and it ``takes back'' the exception from full 
quantiative disclosures in short broadcast advertising if Diet Workshop 
makes a maintenance success claim that uses numbers or descriptive 
terms that convey a quantitative measure, such as ``most of our 
customers maintain their weight loss long term.'' Diet Workshop in that 
case would have to make all the required disclosures in the ad and 
provide the disclosures at point-of-sale.
    Fourth, for weight loss and weight loss maintenance success claims 
made through endorsements or testimonials that are not representative 
of what Diet Workshop diet program participants generally achieve, the 
order (Part I.E.) requires that Diet Workshop disclose either what the 
generally expected success would be for Diet Workshop customers, or one 
of several alternative statements, such as ``This result is not 
typical. You may be less successful'', which explains the limited 
applicability of atypical testimonials in accordance with the 
Commission's ``Guides Concerning Use of Endorsements and Testimonals in 
Advertising'' 16 C.F.R. 255.2 (a). Under the proposed order, Diet 
Workshop may satisfy the requirements of the first disclosure 
concerning generally expected success by accurately disclosing those 
facts in the following format: ``Diet Workshop clients lose an average 
of ______ pounds over an average ______--week treatment period.''
    Finally, the proposed order (Parts I.I. and I.J.) generally 
prohibits the respondents from misrepresenting (1) the existence, 
contents, validity, results, conclusions, or interpretations of any 
test or study; and (2) the performance, efficacy, or benefits of any 
weight loss program or product.

Rate of Weight Loss

    The complaint alleges that the proposed respondents have 
represented, directly or by implication, that an appreciable number of 
consumers using the Diet Workshop's ``Quick Loss'' LCD program lose up 
to 20 pounds in a six-week period. The complaint charges that, at the 
time this representation was made, the respondents did not possess or 
rely upon a reasonable basis for the representation.
    The proposed consent order (Part I.F.) prohibits Diet Workshop from 
representing the rate or speed at which participants in its LCD 
programs will lose weight, unless at the time of making such 
representation, Diet Workshop possesses and relies upon competent and 
reliable scientific evidence substantiating the representation. In 
addition, the proposed order (Part I.G.) prohibits Diet Workshop from 
representing that participants or prospective participants in Diet 
Workshop LCD programs will reach a specified weight within a specified 
period of time, unless at the time of making such representation, 
respondents possess and rely upon competent and reliable scientific 
evidence substantiating the representation.

Monitoring Practices

    According to the complaint, Diet Workshop provides its customers 
with diet instructions that require the customers to come in to one of 
the proposed respondents' centers once a week for monitoring of their 
progress, including weighing in. It is further alleged that in the 
course of regularly ascertaining weight loss progress, respondents, in 
some instances, are presented with weight loss results indicating that 
customers are losing weight significantly in excess of their projected 
goals, which is an indication that they may not be consuming all of the 
food prescribed by their diet instructions. According to the complaint, 
such conduct, if not corrected promptly, could result in health 
complications. In light of this monitoring practice, the Commission's 
complaint alleges that Diet Workshop has failed to disclose to 
customers who are losing weight significantly in excess of their 
projected goals that failing to follow the diet instructions and 
consume all of the food prescribed could result in health 
complications.
    The proposed consent order seeks to address this alleged deceptive 
practice in two ways. First, the order (Part I.H.) requires respondents 
to disclose in writing either (1) to each participant

[[Page 13503]]
who, after the first two weeks on the program, is experiencing average 
weekly weight loss that exceeds two percent (2%) of said participants' 
initial body weight, or three pounds, whichever is less, for at least 
two consecutive weeks, or (2) to all participants when they enter the 
program, that failure to follow the diet instructions and consume the 
total caloric intake recommended may involve the risk of developing 
serious health complications. Second, the proposed order (Part I.J.) 
generally prohibits any misrepresentation concerning the safety of any 
weight loss program.

Compliance

    Parts II, III, IV, V and VII of the proposed order are compliance 
reporting provisions that require the respondents to: notify the 
Commission of any changes in the structure of the respondents that may 
affect their compliance obligations under the order; retain all records 
that would bear on the respondents' compliance with the order; 
distribute copies of the order to the respondents' operating divisions 
and to those persons responsible for the preparation and review of 
advertising material covered by the order; distribute a copy of the 
order to each of the respondents' franchisees and licenses, take steps 
to contractually bind the franchisees and licensees to the order, and 
take certain additional steps designed to encourage or require the 
franchisees and licensees to comply with the order; and report to the 
Commission their compliance with the terms of the order.
    Part VI of the proposed order provides generally that the proposed 
order will sunset twenty years from the date of issuance, unless a 
complaint to enforce the order (with or without an accompanying consent 
decree) was/is filed while the order was/is in force. In such a case, 
the order sunsets twenty years after the filing of the complaint.
    The purpose of this analysis is to facilitate public comment on the 
proposed interpretation of the agreement and proposed order or to 
modify in any way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 96-7294 Filed 3-20-96; 8:45 am]
BILLING CODE 6750-01-M