[Federal Register Volume 62, Number 66 (Monday, April 7, 1997)]
[Notices]
[Pages 16585-16586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8798]


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FEDERAL TRADE COMMISSION

[File No. 972-3021]


Bodywell Inc., et al., Also d/b/a Bodywell U.S.A.; Analysis To 
Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY:  In settlement of alleged violations of federal law 
prohibiting unfair or deceptive acts or practices and unfair methods of 
competition, this consent agreement, accepted subject to final 
Commission approval, would, among other things, require the New York-
based company and its principal to possess competent and reliable 
scientific evidence to support any claim that any product causes weight 
loss, with or without changes in diet or exercise, or provides any 
weight loss, fat loss, weight regulation, weight control or weight 
maintenance benefit; and would prohibit them from using the name 
``Slimming Soles'' or any other name in a manner that represents that 
any product causes weight loss, unless the respondents possess 
competent and reliable scientific evidence that substantiates the 
representation. The consent agreement also would prohibit the 
respondent from making any misrepresentations of the existence, 
contents, validity, results, conclusions or interpretations of any 
test, study or research, and from violating the Mail or Telephone Order 
Merchandise Rule, which, among other things, requires that purchasers 
be notified if the products are not delivered in a timely fashion. In 
addition, the consent agreement would require the respondents to pay 
$100,000 for consumer redress or disgorgement.

DATES: Comments must be received on or before June 6, 1997.

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

FOR FURTHER INFORMATION CONTACT:
Richard Cleland, FTC/H-482, Washington, D.C. 20580. (202) 326-3088.

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 above-captioned 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. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home page 
(for March 25, 1997), on the World Wide Web, at ``http://www.ftc.gov/
os/actions/htm.'' A paper copy can be obtained from the FTC Public 
Reference Room, Room H-130, Sixth Street and Pennsylvania Avenue, NW., 
Washington, D.C. 20580, either in person or by calling (202) 326-3627. 
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)).

Analysis of Proposed Consent Order

    The Federal Trade Commission has accepted an agreement to a 
proposed consent order from BodyWell, Inc. and BodyWell, Inc.'s 
officer, Gerard du Passage (``respondents'').
    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.
    The Commission's complaint in this matter charges respondents with 
deceptively advertising Slimming Soles, insoles worn in the shoes that 
purportedly cause weight loss through ``reflexology,'' without changes 
in diet or exercise. According to advertisements for the product, the 
Slimming Soles purportedly cause weight loss by massaging certain 
``reflex points'' on the bottom of the foot during the course of a 
normal day's walking, thereby stimulating the body's digestive system 
to burn stored fat and cause weight loss. Advertisements for the 
product appeared in newspapers such as the Denver Post and in the 
National Enquirer, in newspaper inserts, in magazines such as 
Cosmopolitan and Woman's Day as well as in nationwide direct mailings.
    The complaint alleges that, through the product name ``Slimming 
Soles'' and the advertisements, respondents made unsubstantiated 
representations that the Slimming Soles cause significant weight loss; 
that the weight loss occurs without changes in diet or exercise; and 
that consumers using the Slimming Soles will lose 13 to 16 pounds 
within six weeks, without changes in diet or exercise. According to the 
complaint, the ads also claimed, without adequate substantiation, that 
the consumer testimonials in the ads reflect the typical or ordinary 
experience of people who have used the product.
    The complaint also alleges that respondents falsely represented 
that scientific studies demonstrate that the Slimming Soles cause 
significant weight loss, including 13 to 16 pounds within six weeks, 
without changes in diet or exercise. In addition, the complaint alleges 
that respondents falsely represented that the product would be 
delivered to purchasers within a reasonable period of time. In fact, 
the compliant alleges, in numerous instances the Soles sold to 
purchasers were not delivered to those purchasers within a reasonable 
period of time.
    The proposed consent order contains provisions designed to remedy 
the violations charged and to prevent respondents from engaging in 
similar acts and practices in the future.
    Part I of the order requires respondents to possess competent and 
reliable scientific evidence to support any claim that any product 
causes weight loss, with or without changes in diet or exercise, causes 
weight loss at any particular rate or speed, or within any time period, 
or provides any weight loss, fat loss, weight regulation, weight 
control or weight maintenance benefit. Part II prohibits respondents 
from using the name ``Slimming Soles'' or any other name in a manner 
that represents that any product causes weight loss, unless they 
possess competent and reliable scientific evidence that substantiates 
the representation.
    Part III prohibits respondents from claiming that the experience 
represented in any user-testimonial or endorsement of any food, dietary 
supplement, drug, device, or weight loss product or program represents 
the typical or ordinary experience of members of the public who use the

[[Page 16586]]

product or program, unless, at the time, they possess and rely upon 
competent and reliable scientific evidence substantiating the 
representation or they disclose, clearly and prominently, and in close 
proximity to the testimonial or endorsement, what the generally 
expected results would be or that consumers should not expect to 
experience similar results.
    Part IV prohibits respondents from misrepresenting the existence, 
contents, validity, results, conclusions or interpretations of any 
test, study or research in connection with the sale of any food, 
dietary supplement, drug, device, or weight loss product or program. 
Part V prohibits respondents from violating the Mail or Telephone Order 
Merchandise Rule, which, among other things, requires that purchasers 
be notified if the products are not delivered in a timely fashion.
    Part VI requires respondents to deposit $100,000 into an escrow 
account, which will be used by the Commission to provide either direct 
redress to purchasers of the Slimming Soles or will be paid to the 
United States Treasury, if the Commission determines that direct 
redress to consumers is wholly or partially impracticable.
    Parts VII through IX relate to respondents' obligations to maintain 
and make available to the Commission certain records; to provide copies 
of the order to respondents' personnel; and to notify the Commission of 
structural changes in the corporation. Part X requires Gerard du 
Passage to notify the Commission if he leaves his current employment or 
he affiliates with any new business or employment whose activities 
relate to the manufacturing, labeling, advertising, promotion, offering 
for sale, sale or distribution of any dietary supplement, drug, device, 
or weight loss product or program for which any health or weight loss 
claim is made. Part XI requires respondents to file compliance reports 
with the Commission. Part XII provides that the order will terminate 
after twenty years, under certain circumstances.
    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 proposed order or to modify in any 
way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 97-8798 Filed 4-4-97; 8:45am]
BILLING CODE 6750-01-M