FTC Orders Injunction Against Body Solutions Evening Weight-Loss Formula

WASHINGTON--The Federal Trade Commission (FTC) filed suit against Mark Nutritionals Inc. of San Antonio, Texas, and two of its officers for making false and unsubstantiated claims for its Body Solutions Evening Weight-Loss Formula. Allegedly, the company promoted its product via English and Spanish radio stations, using popular disc jockeys to offer testimonials at more than 650 stations and 110 cities nationwide. Through both these testimonials and the company's Web site (www.bodysolutions.com), the defendants claimed that use of this formula could lead to substantial and permanent weight loss--without diet or exercise and while one slept. The products are sold at such outlets as Wal-Mart, K-Mart and Walgreens and reportedly had revenues of $100 million in 2001.

This is not the first hardship the company has faced this year. In September, the company filed Chapter 11 protection and reportedly laid off 40 to 50 employees in October. [More on that story can be found at www.naturalproductsinsider.com/articles/2B1onlineonly9.html.] The San Antonio Express-News (www.mysanantonio.com) reported that the company also hired a new chief executive officer, Larry Cochran, to steer the company out of bankruptcy--for an alleged $18,000-per-month salary.

This time, the company and the two defendants named in the suit--Harry Siskind and Edward G. D'Alessandro, Jr.--are charged with selling this product through deceptive radio advertisements. Radio personalities were paid to use the product and report on its benefits, and such statements included, "It helped me lose 36 pounds, and it helps me maintain through the holidays. I mean, I ate so much over Thanksgiving, I still have turkey burps." Another DJ stated, "Look, I've lost 25 pounds. . The bench that I used for all my weights, that's gone. . I've replaced it all with a bottle [of Body Solutions Evening Weight-Loss Formula] that fits nicely in the corner of my refrigerator."

FTC's complaint alleged that the defendants falsely claimed its Evening Formula would cause a weight loss of up to 40 pounds without diet or exercise; would create substantial weight loss even when consuming high-calorie foods such as pizza, nachos or donuts; and would lead to long-term or permanent weight loss.

Currently, the agency is seeking a preliminary and permanent injunctive relief and consumer redress against the defendants. When approved by the court, the company would also be required to drop the term "weight-loss" from its Body Solutions Evening Weight-Loss Formula.

Mark Nutritionals Inc. denied all liability alleged by FTC, as well as denied violations of any law or regulation with respect to the advertising, promotion, sale or distribution of its products. That said, Mark Nutritionals Inc. has stipulated to enter a preliminary injunction with FTC stating that those in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale or distribution of Body Solutions Evening Weight-Loss Formula are preliminarily restrained and enjoined from making any representation that is false or misleading. Therefore, the following statements can no longer be used in association with this product:

1. Such product will cause substantial weight loss, including as much as 20 to 40 pounds, without the need to diet or exercise;

2. Such product will cause substantial weight loss even if users eat substantial amounts of high-calorie foods such as pizza, beer, tacos, nachos, cheese grits and donuts; and

3. Such product will cause substantial long-term or permanent weight loss.

Within 45 days of the order, the defendants have to provide FTC with a sworn statement describing the manner in which it has complied with the order. More on the order can be found at www.ftc.gov/os/2002/12/marknutritionalsord.htm.

FTC's Southwest Region, Dallas, primarily handled this matter. However, some states' attorneys general--like those from Texas and Illinois--are conducting joint investigations with FTC and filing separate lawsuits against Mark Nutritionals in state courts. The Texas suit includes the case of one woman who spent $144 on three bottles of the formula--and gained six pounds. "To claim as [Mark Nutritionals does] that a person can take this product at night, avoid vigorous exercise and a disciplined diet, and lose a lot of weight in the process just stretches the boundaries of both imagination and reality," said Texas Attorney General Greg Abbott. According to Abbot, the Texas suit seeks restitution and an injunction for the company to stop misrepresentations. The company may also be subject to civil penalties of up to $25,000 per violation.

Cochran said in a Dec. 5 company statement that the company has already seen a significant improvement in losses more quickly than expected. He also addressed the state-based lawsuits still pending against the company. "We are confidant that, working cooperatively with them, we can also address the concerns [of the attorneys general]," he said. "Body Solutions enjoys a high level of visibility and customer loyalty, and this agreement with FTC is part of our commitment to lead the industry by example."