WASHINGTON--The marketers of a “prickly pear" fruit drink have agreed to cough up $3.5 million for consumer refunds after the FTC alleged consumers were deceived by claims that the product could treat a number of health problems.

The FTC’s settlement with TriVita, Inc. is part of its “ongoing efforts to stop over-hyped health claims," the agency announced today in a news release. In Arizona federal court, the FTC last week filed a complaint against TriVita, Ellison Media Company (a marketing firm) and two individuals (Michael R. and Susan R. Ellison) who controlled both companies.

Founded in 1999, Scottsdale, Arizona-based TriVita bills itself as a “health and wellness company" and markets around 30 products, including multivitamins, weight-loss capsules and weight-management shakes.

At issue in the FTC’s complaint was TriVita’s marketing of a fruit drink that comes from the prickly pear cactus.

The product Nopalea was marketed on the Internet, through such publications as USA Today and via an infomercial that “has at times been one of the top ten most frequently broadcasted infomercials in the United States," according to the FTC.

The FTC alleged the defendants made health claims regarding the fruit drink that were unsubstantiated. “These kinds of unfounded claims are unacceptable, particularly when they impact consumers’ health," said Jessica Rich, director of the FTC’s Bureau of Consumer Protection, in a statement. “Advertisers who cannot back up their claims with competent and reliable scientific evidence are violating the law."       

TriVita was in talks with the FTC for more than a year.

“They did not accept the science that we gave to them," said Gene Henderson, executive vice president of legal affairs with TriVita, in a phone interview. “That was part of the 15 months that we went through our confidential investigation and that was the reason we settled to say ‘we will not make the statements that were listed in the complaint until we get further scientific studies.’"

Henderson said TriVita is allowed to continue marketing the juice known as Nopalea and plans to conduct further studies on it.

“We are still marketing the product and its benefits supporting the normal and essential anti-inflammatory function performed by the immune system," he said. “We’re pleased with the future that we have."

According to the FTC, in infomercials featuring a former Sports Illustrated model and appearing on such networks as ABC Family, the Discovery Channel and Lifetime, Nopalea was marketed as an “anti-inflammatory wellness drink" that alleviates pain, decreases and relieves joint and muscle swelling and improves breathing. The drink also was promoted as alleviating respiratory problems and relieving skin conditions, the agency said.

“If you’ve suffered from inflammation or chronic pain for years, there’s something that can help," Cheryl Tiegs, a famous model who has appeared on television and in movies, said in an infomercial quoted by the FTC.  

Brazos Minshew, former chief science officer with TriVita, also appears in the infomercials, linking inflammation to allergies, Alzheimer’s disease, diabetes and heart disease, the FTC said. In one of the infomercials, he proclaimed “over 200 articles published and archived at the National Institutes of Health demonstrate one thing: the Nopal cactus will reduce inflammation," according to the agency’s press release.

Finally, the FTC said paid employees of the defendants appeared in the infomercials, touting the fruit drink in testimonials.

TriVita co-founder Susan Ellison is among the defendants who lauded the benefits of the product.

“I was diagnosed with inflammatory arthritis in my feet and I couldn’t walk without excruciating pain…. I started on Nopalea during the product’s trial period without much hope, but after just six weeks on Nopalea, I was almost pain-free, and after eight weeks, the redness and swelling was completely gone," she said in an infomercial, according to the FTC’s complaint.

In the lawsuit filed in the U.S. District Court for the District of Arizona, FTC alleged the defendants violated Sections 5 and 12 of the FTC Act by:

·         “making unsupported claims that Nopalea significantly improves breathing and relieves sinus infections and other respiratory conditions, and provides significant relief from pain, swelling of the joints and muscles, and psoriasis and other skin conditions;

·         making false claims that the health benefits of Nopalea were proven by clinical studies;

·         failing to disclose that supposedly ordinary consumer endorsers were in fact TriVita sales people who received commissions for selling the defendants’ products."

A proposed settlement order would bar the defendants from making the health claims alleged in the complaint when marketing Nopalea or any food, drug, or dietary supplement without randomized, double-blind, placebo-controlled human clinical tests led by qualified researchers.

“And we are absolutely fine with that," Henderson said.

The settlement also prohibits the defendants from making health claims without competent and reliable scientific evidence; misrepresenting health benefits are clinically proven if they haven’t been; and failing to reveal any material connection between endorsers of their products and themselves.