[Federal Register Volume 65, Number 164 (Wednesday, August 23, 2000)]
[Notices]
[Pages 51322-51324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21472]


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FEDERAL TRADE COMMISSION

[File No. 992 3274]


SmartScience Laboratories, 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 September 15, 2000.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,

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Room 159, 600 Pennsylvania Ave., NW, Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Janet Evans, FTC/S-4002, 600 
Pennsylvania Ave., NW, Washington, DC 20580. (202) 326-2125.

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 thirty (30) 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 August 16, 2000), on the World Wide Web, at ``http://www.ftc.gov/
ftc/formal.htm.'' A paper copy can be obtained from the FTC Public 
Reference Room, Room H-130, 600 Pennsylvania Avenue, NW, Washington, DC 
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 Ave., NW, 
Washington, DC 20580. Two paper copies of each comment should be filed, 
and should be accompanied, 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 containing a consent order from SmartScience 
Laboratories, Inc. and its president, Gene Weitz, (together, ``SSL'') 
settling charges that they engaged in a large-scale deceptive 
advertising campaign for JointFlex, a skin cream.
    The proposed consent order has been placed on the public record for 
thirty (30) days for receipt of comments by interested persons. 
Comments received during this period will become part of the public 
record. After thirty (30) 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 involves alleged misleading representations for 
JointFlex. Respondents sold this cream through advertisements in 
national newspapers and magazines (including USA Today, the Washington 
Post, and Newsweek), more than 200 other major and minor local 
newspapers, and two websites that are not currently operative. 
According to the FTC complaint, SSL advertisements represented that 
JointFlex eliminates significant pain due to disabling joint 
conditions, crushed vertebrae, arthritis, herniated disk, and other 
conditions; that JointFlex provides more pain relief than other over-
the-counter pain creams; and that testimonials from consumers appearing 
in the advertisements for JointFlex represent the typical or ordinary 
experiences of members of the public who use the product. According to 
the complaint, SSL lacked a reasonable basis to substantiate these 
claims. The complaint also alleges that respondents ads represented 
that the glucosamine sulfate and chondroitin sulfate in JointFlex 
contribute to pain relief when applied topically, but that respondents 
do not possess competent and reliable evidence that the glucosamine 
sulfate and chondroitin sulfate in JointFlex, a topically applied 
cream, penetrates the skin sufficiently to induce a pharmacological 
effect.
    The complaint further alleges that SSL made several false 
advertising claims. It alleges that the ads represented that a 
competent and reliable survey of JointFlex users shows that ninety-five 
percent experienced reduction or elimination of pain due to use of 
JointFlex. This claim is alleged to be false because the survey 
respondents relied on was not competent and reliable, because there is 
no assurance that any pain reduction the responding consumers reported 
was due to use of the product, and because the ninety-five percent 
figure reflects responses to the question, ``do you feel that the 
product helped your symptoms.'' not a question about pain relief, and 
the surveys also inquired into relief from stiffness, swelling, 
redness, and protuberances. The complaint alleges that SSL falsely 
characterized the results of certain testimonials, by overstating the 
nature of their injuries at the time they used the JointFlex product.
    The proposed consent order contains provisions designed to prevent 
respondents from engaging in similar acts and practices in the future. 
Part I of the order would require, with regard to JointFlex or any drug 
or supplement, competent and reliable scientific substantiation for 
future claims about the absolute or comparative efficacy of the product 
in reducing, relieving, or eliminating pain from any source; the health 
benefits, performance, safety or efficacy of any such product; or the 
ability of glucosamine sulfate, chrondroitin sulfate, or any other 
ingredient to relieve pain or provide any other health benefit when 
applied topically.
    Part II prohibits respondents, in connection with any product, from 
misrepresenting the existence, contents, validity, results, 
conclusions, or interpretations of any test, study, survey, or 
research.
    Part III provides that, in connection with any product, respondents 
shall not misrepresent the experience of any testimonialist or 
endorser. If further provides that respondents shall not represent that 
the experience represented by any user testimonial or endorsement of 
the product represents the typical or ordinary experience of members of 
the public who use the product, unless the typicality claim is 
substantiated by competent and reliable scientific evidence; or 
respondents disclose, clearly and conspicuously, and in close proximity 
to the endorsement or testimonial, either what the generally expected 
results would be for users of the product, or the limited applicability 
of the endorser's experience to what consumers may generally expect to 
achieve, that is, that consumers should not expect to experience 
similar results.
    Part IV of the order is a safe harbor, providing that the order 
does not prohibit respondents from making any representation for any 
drug that is permitted in labeling for such drug under any tentative 
final or final standard promulgated by the Food and Drug 
Administration, or under any new drug application approved by the Food 
and Drug Administration. Part V is a safe harbor, providing that the 
order does not prohibit respondents from making any representation for 
any product that is specifically permitted in labeling for such product 
by regulations promulgated by the Food and Drug Administration pursuant 
to the Nutrition Labeling and Education Act of 1990.
    Parts VI-XI are standard record keeping, order distribution, 
reporting, compliance, and sunsetting provisions.
    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.


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    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 00-21472 Filed 8-22-00; 8:45 am]
BILLING CODE 6750-01-M