Smoke Away Endorsements Up In Smoke, Endorsers Singed In FTC Suit
This article was originally published in The Tan Sheet
Executive Summary
FTC included two healthcare professionals who provided product endorsements in a recently settled false advertising suit against marketers of the Smoke Away "natural" smoking cessation system
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FTC included two healthcare professionals who provided product endorsements in a recently settled false advertising suit against marketers of the Smoke Away "natural" smoking cessation system. Chiropractor Sherry Bresnahan of Algonquin, Ill., and Thomas DeBlasio, MD, of Manalapan, N.J., were named as defendants alongside Naples, Fla.-based firm Emerson Direct in the FTC complaint filed Aug. 9 in Florida District Court. In an Aug. 11 stipulated final order, Smoke Away marketer Emerson settled the suit for $1.3 mil., which includes potential customer redress. The order includes a $61 mil. suspended judgment to be paid immediately if the firm is found to have misrepresented its finances. Targeting endorsers is consistent with FTC's stated strategy of casting a wider net of liability for false claims by including in litigation any parties involved in the marketing, not just manufacturers and marketers (1 (Also see "Flu Vaccine “Alternative” Claims For Supplements Targeted By FTC" - Pink Sheet, 8 Nov, 2004.), p. 18). Notably, a Los Angeles federal judge found former baseball player Steve Garvey not liable for claims he made in ads for Enforma's Fat Trapper and other weight loss products (2 (Also see "Enforma Spokesman Garvey Not Liable For Weight-Loss Claims – Judge" - Pink Sheet, 11 Nov, 2002.), p. 7). Smoke Away, a smoking cessation product composed of "various dietary supplements made of combinations of vitamins, herbs, and other ingredients," has been sold since at least January 2003, FTC notes in its complaint. The product is marketed via the Internet, national television and radio ads and a 30-minute TV infomercial. In the complaint, FTC charges the firm with five different counts dealing with product efficacy and performance, expertise claims, the Bresnahan and DeBlasio endorsements, and failure to make prompt refunds. Smoke Away's efficacy and performance claims in TV and radio claims were false and unsubstantiated, FTC alleges. These include claims the product "enables smokers to quit smoking in seven days or less," "eliminates nicotine cravings" and "is more effective than nicotine patches, nicotine gum and prescription medications for smoking cessation." Emerson Direct also was charged with deception for failure to make a prompt payment. The charges stem from the firm's guarantee to refund $100 to dissatisfied consumers. As a result of failing to provide "timely refunds to consumers who request refunds pursuant to their unconditional money back guarantee," Emerson Direct caused consumers "substantial monetary loss as a result of their unlawful practices," FTC states. The commission focuses on the firm's claims of expertise by explicitly addressing Bresnahan's qualifications as a chiropractor, stating she "is not an expert in nicotine addiction or smoking cessation." Bresnahan and DeBlasio failed to "exercise [their] purported expertise in the fields of nicotine addiction or smoking cessation in the form of an examination... at least as extensive as an expert in those fields would normally conduct," FTC maintains. Failure to collect, examine and rely upon comparable scientific evidence when endorsing product claims "constitutes a deceptive practice, and the making of false advertisement" in any expert endorsement, according to the agency. The stipulated final order allows FTC to monitor Bresnahan and DeBlasio for the next six years, during which they must follow a number of standard recordkeeping provisions to assist FTC in tracking their compliance. They must submit updated personal information and notice of employment status to FTC, as well as supply all business-related directors, suppliers and employees with a copy of the order for the next three years. The commission is authorized to request and review their financial records for a period of six years. In addition, Bresnahan is "permanently restrained and enjoined from representing that she is an expert in nicotine addiction or smoking cessation." The stipulated final order permanently bars Emerson Direct from making "any claims about the benefits, performance, efficacy, safety or side effects of Smoke Away or any other smoking cessation product or program unless those claims are true, non-misleading and substantiated." |