[Federal Register Volume 64, Number 97 (Thursday, May 20, 1999)]
[Notices]
[Pages 27545-27547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12659]


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FEDERAL TRADE COMMISSION

[File No. 9823633]


Fitness Quest, Inc., et al; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint that accompanies the consent agreement and the terms of the 
consent order--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before July 19, 1999.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:
Robert Frisby & Robin Spector, FTC/S-4302, 601 Pennsylvania Avenue, 
N.W., Washington, D.C. 20580, (202) 326-2098 or (202) 326-3740.

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 May 12th, 1999), on the World Wide Web, at ``http://www.ftc.gov/
os/actions97.htm.'' A paper copy can be obtained from the FTC Public 
Reference Room, Room H-130, 600 Pennsylvania Avenue, N.W., Washington, 
D.C. 20580, either in person or by calling (202) 326-3627.
    Public comment is invited. Comments should be directed to: FTC/
Office of the Secretary, Room 159, 600 Pennsylvania Avenue, N.W., 
Washington, D.C. 20580. Two paper copies of each comment should be 
filed, and should be accomplished, if possible, by a 3\1/2\ inch 
diskette containing an electronic copy of the comment. 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 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.''

[[Page 27547]]

(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.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 99-12659 Filed 5-19-99; 8:45 am]
BILLING CODE 6750-01-M