[Federal Register Volume 60, Number 69 (Tuesday, April 11, 1995)]
[Notices]
[Pages 18406-18410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8858]
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FEDERAL TRADE COMMISSION
[File No. 932-3321]
European Body Concepts, Inc.; Proposed Consent Agreement With
Analysis To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
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SUMMARY: In settlement of alleged violations of federal law prohibiting
unfair acts and practices and unfair methods of competition, this
consent agreement, accepted subject to final Commission approval, would
prohibit, among other things, a suburban Washington, DC Based salon and
its president from making false and unsubstantiated claims that their
body wrap would cause weight-loss; would eliminate cellulite; and is
completely safe for all users. In addition, it would require the
respondents to convey prominent safety warnings to their customers in
certain circumstances.
DATES: Comments must be received on or before June 12, 1995.
ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,
Room 159, 6th St. and Pa. Ave., NW., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT:
Nancy S. Warder, FTC/S-4002, Washington, DC 20580. (202) 326-3048.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 2.34 of the
Commission's rules of practice (16 CFR 2.34), notice is hereby given
that the following 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. Public comment is invited. 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
Sec. 4.9(b)(6)(ii) of the Commission's rules of practice (16 CFR
4.9(b)(6)(ii)).
In the Matter of European Body Concepts, Inc., Maryland
corporation, European Body Concepts, Inc., a Virginia corporation,
European Body Concepts, Inc., a North Carolina corporation, and
James Marino, individually and as an officer of said corporations.
Agreement Containing Consent Order to Cease and Desist
The Federal Trade Commission having initiated an investigation of
European Body Concepts, Inc., a Maryland corporation, European Body
Concepts, Inc., a Virginia corporation, European Body Concepts, Inc., a
North Carolina corporation, and James Marino, individually and as an
officer of said corporations (``proposed respondents''), and it now
appearing that proposed respondents are willing to enter into an
agreement containing an order to cease and desist from the use of the
acts and practices being investigated,
It is hereby agreed by and between European Body Concepts, Inc., a
Maryland corporation, by its duly authorized officer, European Body
Concepts, Inc., a Virginia corporation, by its duly authorized officer,
European Body Concepts, Inc., a North Carolina corporation, by its duly
authorized officer, and James Marino, individually and as an officer of
said corporations, and their attorney, and counsel for the Federal
Trade Commission that:
1. Proposed respondent European Body Concepts, Inc., a Maryland
corporation, is organized, exists and does business under and by virtue
of the laws of the State of Maryland, with its former office and
principal place of business located at 1 Central Plaza, Suite 907,
11300 Rockville Pike, Rockville, Maryland 20852.
Proposed respondent European Body Concepts, Inc., a Virginia
corporation, is organized, exists and does business under and by virtue
of the laws of the State of Virginia, with its former office and
principal place of business located at 6564 Loisdale Court, Suite 420,
Springfield, Virginia 22150. [[Page 18407]]
Proposed respondent European Body Concepts, Inc., a North Carolina
corporation, is organized, exists and does business under and by virtue
of the laws of the State of North Carolina, with its former office and
principal place of business located at 1515 Mockingbird Lane, Suite
410, Charlotte, North Carolina 28209.
Proposed respondent James Marino is or was at relevant times herein
an officer of said corporations. He formulated, directed and controlled
the policies, acts and practices of said corporations and his address
is 11940 Alpharetta Highway, Suite 907, Alpharetta, Georgia 30201.
2. Proposed respondents admit all the jurisdictional facts set
forth in the draft of complaint.
3. Proposed respondents waive:
(a) Any further procedural steps;
(b) The requirement that the Commission's decision contain a
statement of findings of fact and conclusions of law; and
(c) All rights to seek judicial review or otherwise to challenge or
contest the validity of the Order entered pursuant to this agreement.
4. This agreement shall not become part of the public record of the
proceeding unless and until it is accepted by the Commission. If this
agreement is accepted by the Commission it, together with the draft of
complaint contemplated thereby, will be placed on the public record for
a period of sixty (60) days and information in respect thereto publicly
released. The Commission thereafter may either withdraw its acceptance
of this agreement and so notify the proposed respondents, in which
event it will take such action as it may consider appropriate, or issue
and serve its complaint (in such form as circumstances may require) and
decision in disposition of this proceeding.
5. This agreement is for settlement purposes only and does not
constitute an admission by proposed respondents that the law has been
violated as alleged in the draft of complaint, or that the facts as
alleged in the draft of complaint, other than the jurisdictional facts,
are true.
6. This agreement contemplates that, if it is accepted by the
Commission, and if such acceptance is not subsequently withdrawn by the
Commission pursuant to the provision of Sec. 2.34 of the Commission's
rules, the Commission may, without further notice to the proposed
respondents, (1) Issue its complaint corresponding in form and
substance with the draft of complaint and its decision containing the
following order to cease and desist in disposition of the proceeding
and (2) make information public with respect thereto. When so entered,
the order to cease and desist shall have the same force and effect and
may be altered, modified or set aside in the same manner and within the
same time provided by statute for other orders. The order shall become
final upon service. Delivery by the U.S. Postal Service of the
complaint and decision containing the agreed-to order to Edward J.
Carnot, counsel for proposed respondents, at 1370 Piccard Drive, Suite
290, Rockville, Maryland 20850, shall constitute service. Proposed
respondents waive any right they may have to any other manner of
service. The complaint may be used in construing the terms of the
order, and no agreement, understanding, representation, or
interpretation not contained in the order or in the agreement may be
used to vary or contradict the terms of the order.
7. Proposed respondents have read the proposed complaint and order
contemplated hereby. They understand that once the order has been
issued, they will be required to file one or more compliance reports
showing that they have fully complied with the order. Proposed
respondents further understand that they may be liable for civil
penalties in the amount provided by law for each violation of the order
after it becomes final.
Order
For purposes of this Order:
1. ``Clearly and prominently'' means as follows:
A. In a television or videotape advertisement, the disclosure shall
be presented simultaneously in both the audio and video portions of the
advertisement. The audio disclosure shall be delivered in a volume and
cadence sufficient for an ordinary consumer to hear and comprehend it.
The video disclosure shall be of a size and shade, and shall appear on
the screen for a duration, sufficient for an ordinary consumer to read
and comprehend it.
B. In a radio advertisement, the disclosure shall be delivered in a
volume and cadence sufficient for an ordinary consumer to hear and
comprehend it.
C. In a print advertisement the disclosure shall be in at least
twelve (12) point type, in print that contrasts with the background
against which it appears, and in a location that is sufficiently
noticeable that the ordinary consumer will see and read it.
2. ``Competent and reliable scientific evidence'' means tests,
analyses, research, studies, or other evidence based on the expertise
of professionals in the relevant area, that has been conducted and
evaluated in an objective manner by persons qualified to do so, using
procedures generally accepted in the profession to yield accurate and
reliable results.
3. ``European Body Wrap treatment'' means the treatment used at
European Body Concepts centers during which clients are wrapped in
medical bandages and placed in vinyl body suits.
I
It is ordered that respondents European Body Concepts, Inc., a
Maryland corporation, European Body Concepts, Inc., a Virginia
corporation, European Body Concepts, Inc., a North Carolina
corporation, their successors and assigns, and their officers, James
Marino, individually and as an officer and director of said
corporations; and respondents' agents, representatives and employees,
directly or through any partnership, corporation, subsidiary, division
or other device, in connection with the advertising, promotion,
offering for sale, sale or distribution of the European Body Wrap
treatment or any substantially similar treatment in or affecting
commerce, as ``commerce'' is defined in the Federal Trade Commission
Act, do forthwith cease and desist from representing, in any manner,
directly or by implication, that:
A. Such treatment causes weight loss;
B. Such treatment causes weight loss without diet or exercise;
C. Such treatment causes fast or easy weight loss;
D. Such treatment eliminates cellulite;
E. Such treatment causes weight loss at specific areas of the body;
F. Users of such treatment are successful in maintaining their
weight loss;
G. Users of such treatment are successful in maintaining their inch
loss; or
H. Such treatment is completely safe for all users.
II
It is further ordered that respondents European Body Concepts,
Inc., a Maryland corporation, European Body Concepts, Inc., a Virginia
corporation, European Body Concepts, Inc., a North Carolina
corporation, their successors and assigns, and their officers, James
Marino, individually and as an officer and director of said
corporations; and respondents' agents, representatives and employees,
directly or through any [[Page 18408]] partnership, corporation,
subsidiary, division or other device, in connection with the
advertising, promotion, offering for sale, sale or distribution of the
European Body Wrap treatment in or affecting commerce, as ``commerce''
is defined in the Federal Trade Commission Act, do forthwith cease and
desist from representing, in any manner, directly or by implication
that:
A. Such treatment causes users to lose inches from their body
measurements;
B. Such treatment causes inch loss without diet or exercise;
C. Such treatment causes fast or easy inch loss; or
D. Such treatment causes reduction in the size of specific areas of
the body;
unless, (1) such representation is true, and at the time of making such
representation, respondents possess and rely upon competent and
reliable scientific evidence that substantiates the representation; and
(2) respondents disclose, clearly and prominently, that: (a) Any inch
loss or reduction in body size will be temporary; provided, however,
that this disclosure shall not be required if respondents possess and
rely upon competent and reliable scientific evidence demonstrating that
any such inch loss or reduction in body size will not be temporary; and
(b) such treatment does not cause weight loss; provided, however, that
this disclosure shall not be required if respondent possess and rely
upon competent and reliable scientific evidence demonstrating that such
treatment causes weight loss.
III
It is Further Ordered that respondents European Body Concepts,
Inc., a Maryland corporation, European Body Concepts, Inc., a Virginia
corporation, European Body Concepts, Inc., a North Carolina
corporation, their successors and assigns, and their officers, James
Marino, individually and as an officer and director of said
corporations; and respondents' agents, representatives and employees,
directly or through any partnership, corporation, subsidiary, division
or other device, in connection with the advertising, promotion,
offering for sale, sale or distribution of any body wrap treatment or
any substantially similar treatment in or affecting commerce, as
``commerce'' is defined in the Federal Trade Commission Act do
forthwith cease and desist from:
A. Making any representation, directly or by implication, regarding
the safety of any such treatment, unless respondents disclose, clearly
and prominently, and in close proximity to such representation that the
treatment may be dangerous to the health of people with heart disease,
high or low blood pressure, or diabetes and that any such person should
consult a doctor before using the treatment;
B. Failing to disclose prior to purchase the warning set forth
below to each prospective user of any such treatment
(i) By including the warning in the program description brochure
delivered to each such person, with the warning printed in bold on the
front panel in ten (10) point type surrounded by a bold two (2) point
rule, in print that contrasts with the background against which it
appears; or
(ii) If respondents cease to provide prospective users with a
program description brochure, by delivering to each such person a five
(5) by eight (8) inch card on which the warning and nothing else is
printed in twelve (12) point type:
``CAUTION: If you suffer from heart disease, high or low blood
pressure, or diabetes, you should consult your physician before
using this treatment to determine whether it poses a risk to your
health;'' and
C. Failing to post in a conspicuous place where it is likely to be
noticed by, and is legible to, prospective users, in the reception area
of any location where any such treatment is offered for sale, sold, or
used, a sign containing the warning in subpart B and nothing else
printed in letters one inch high.
IV
It is further ordered that respondents European Body Concepts,
Inc., a Maryland corporation, European Body Concepts, Inc., a Virginia
corporation, European Body Concepts, Inc., a North Carolina
corporation, their successors and assigns, and their officers; James
Marino, individually and as an officer and director of said
corporations; and respondents' agents, representatives and employees,
directly or through any partnership, corporation, subsidiary, division
or other device, in connection with the advertising, promotion,
offering for sale, sale or distribution of any weight control or weight
reduction treatment, program, product, or service in or affecting
commerce, as ``commerce'' is defined in the Federal Trade Commission
Act, do forthwith cease and desist from making any representation, in
any manner, directly or by implication, that any such treatment,
program, product, or service has any effect on weight or body size,
unless they disclose, clearly and prominently, and in close proximity
to such representation that diet and/or increasing exercise is required
to lose weight; provided however, that this disclosure shall not be
required if respondents possess and rely upon competent and reliable
scientific evidence demonstrating that the treatment, program, product,
or service is effective without either dieting or increasing exercise.
V
It is further ordered that respondents European Body Concepts,
Inc., a Maryland corporation, European Body Concepts, Inc., a Virginia
corporation, European Body Concepts, Inc., a North Carolina
corporation, their successors and assigns, and their officers; James
Marino, individually and as the sole officer and director of said
corporations; and respondents' agents, representatives and employees,
directly or through any partnership, corporation, subsidiary, division
or other device, in connection with the advertising, promotion,
offering for sale, sale or distribution of any weight control or weight
reduction treatment, program, product, or service in or affecting
commerce, as ``commerce'' is defined in the Federal Trade Commission
Act, do forthwith cease and desist from representing, in any manner,
directly or by implication, that any endorsement (as ``endorsement'' is
defined in 16 CFR 255.0(b)) represents the typical or ordinary
experience of members of the public who use such treatment, program,
product, or service.
VI
It is further ordered that respondents European Body Concepts,
Inc., a Maryland corporation, European Body Concepts, Inc., a Virginia
corporation, European Body Concepts, Inc., a North Carolina
corporation, their successors and assigns, and their officers; James
Marino, individually and as an officer and director of said
corporations; and respondents' agents, representatives and employees,
directly or through any partnership, corporation, subsidiary, division
or other device, in connection with the advertising, promotion,
offering for sale, sale or distribution of any treatment, program,
product, or service in or affecting commerce, as ``commerce'' is
defined in the Federal Trade Commission Act, do forthwith cease and
desist from making any representation, in any manner, directly or by
implication, that:
A. Such treatment, program, product, or service has any weight
control, weight loss or weight maintenance benefit;
B. Such treatment, program, product, or service has any effect on
cellulite; [[Page 18409]]
C. Such treatment, program, product, or service has any effect on
users' body measurements; or
D. Using any such treatment, program, product, or service designed
or used to prevent weight gain or produce weight loss, reduce or
eliminate fat or cellulite, or reduce body measurements is safe or
without risk;
unless, at the time of making such representation, respondents possess
and rely upon competent and reliable scientific evidence that
substantiates the representation.
VII
Nothing in this Order shall prohibit respondents from making any
representation that is specifically permitted in labeling for any
product by regulations promulgated by the Food and Drug Administration
pursuant to the Nutrition Labeling and Education Act of 1990.
VIII
Nothing in this Order shall prohibit respondents from making any
representation for any drug that is permitted in labeling for any 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.
IX
It is further ordered that respondents European Body Concepts,
Inc., a Maryland corporation, European Body Concepts, Inc., a Virginia
corporation, and European Body Concepts, Inc., a North Carolina
corporation, shall:
A. Within thirty (30) days after service of the Order, provide a
copy of this Order to each of respondents' current principals,
officers, directors, and managers, and to all personnel, agents, and
representatives having sales, advertising, or policy responsibility
with respect to the subject matter of this Order; and
B. For a period of five (5) years from the date of issuance of this
Order, provide a copy of this Order to each of respondents' future
principals, officers, directors, and managers, and to all personnel,
agents, and representatives having sales, advertising, or policy
responsibility with respect to the subject matter of this Order, within
three (3) days after the person assume his or her responsibilities.
X
It is further ordered that for five (5) years after the last date
of dissemination of any representation covered by this Order,
respondents, or their successors and assigns, shall maintain and upon
request make available to the Federal Trade Commission or its staff for
inspection and copying:
A. Copies of all advertisements which contain any such
representation, including tape recordings of all broadcast
advertisements;
B. All materials that were relied upon in disseminating such
representation; and
C. All tests, reports, studies, surveys, demonstrations, or other
evidence in their possession or control that contradict, qualify, or
call into question such representation, or the basis relied upon for
such representation, including but not limited to, complaints from
consumers and complaints or inquiries from government organizations.
XI
It is further ordered that respondents European Body Concepts,
Inc., a Maryland corporation, European Body Concepts, Inc., a Virginia
corporation, European Body Concepts, Inc., a North Carolina
corporation, shall notify the Federal Trade Commission at least thirty
(30) days prior to any proposed change in their corporate structures,
including but not limited to dissolution, assignment, or sale resulting
in the emergence of a successor corporation, the creation or
dissolution of subsidiaries or affiliates, or any other corporate
change that may affect compliance obligations arising out of this
Order.
XII
It is further ordered that respondent James Marino shall for a
period of five (5) years from the date of issuance of the Order, notify
the Commission within thirty (30) days of the discontinuance of his
present business or employment and of his affiliation with any new
business or employment. Each notice affiliation with any new business
or employment shall include respondent's new business address, and a
statement describing the nature of the business or employment and his
duties and responsibilities.
XIII
It is further ordered that the respondents herein shall within
sixty (60) days after service upon them of this Order, and at such
other times as the Commission may require, file with the Commission a
report, in writing, setting forth in detail the manner and form in
which they have complied with this Order.
Analysis of Proposed Consent Order to Aid Public Comment
The Federal Trade Commission has accepted an agreement to a
proposed consent order from European Body Concepts, Inc., a Maryland
corporation, European Body Concepts, Inc., a Virginia corporation,
European Body Concepts, Inc., a North Carolina corporation, and James
Marino (hereinafter sometimes referred to as ``proposed respondents'').
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 review again the
agreement and comments received and will decide whether it should
withdraw from the agreement or make final the agreement's proposed
order.
The complaint charges that the proposed respondents deceptively
advertised a weight loss treatment that involved wrapping bandages
soaked in mineral solution around the bodies of users who then put on
vinyl body suits (``European Body Wrap Treatment''). According to the
complaint, the proposed respondents falsely claimed that the European
Body Wrap treatment: (a) Caused users to lose significant numbers of
inches and pounds quickly and easily and without diet or exercise; (b)
eliminated cellulite; (c) reduced the size of specific areas of the
body; (d) enabled users to maintain their weight and inch loss and (e)
was completely safe for all users.
The compliant also alleges that the proposed respondents falsely
represented that the results achieved by testimonialists, featured in
their advertising were typical of those experienced by members of the
public who use the European Body Wrap treatment. Finally, the proposed
respondents are charged with representing that the European Body Wrap
treatment was completely safe for all users, but deceptively failing to
disclose that it may be dangerous to the health of people with certain
medical conditions such as heart disease, high or low blood pressure,
and diabetes.
The proposed order contains six substantive provisions, Parts I
through VI.
Part I prohibits proposed respondents from making the deceptive
weight loss, cellulite reduction, and safety claims alleged in the
proposed complaint for the European Body Wrap treatment or any
substantially similar treatment. In addition, Part I bans the claim
that users of the European Body Wrap treatment or [[Page 18410]] any
substantially similar treatment are successful in maintaining their
inch or weight loss.
Part II prohibits the proposed respondents from representing that
any body wrapping treatment causes inch loss, does so quickly and
easily or without diet or exercise, or causes inch loss at any specific
part of the body, unless the claim is true and substantiated by
competent and reliable scientific evidence. In addition, Part II
requires the proposed respondents to disclose in conjunction with any
such representation that the inch loss is temporary and that there is
no weight loss, unless they can substantiate otherwise.
Part III.A requires proposed respondents to disclose, in
conjunction with any representation about the safety of their body wrap
treatment that body wrapping may be dangerous to the health of people
with heart disease, high or low blood pressure, or diabetes. Under the
proposed order, this disclosure must be clear and prominent, which is
defined as being understandable in both the audio and visual portions
of a television ad, as being in an understandable cadence in a radio
ad, and as being in at least twelve point type in a sufficiently
noticeable location in a print ad.
Part III.B requires that, prior to purchase, proposed respondents
give each prospective purchaser of its body wrapping treatment the
following warning:
CAUTION: If you suffer from heart disease, high or low blood
pressure, or diabetes, you should consult your physician before using
this treatment to determine whether it is dangerous to your health.
The warning must be included in a brochure describing the treatment (in
which case it must be printed in bold, ten point type within a two
point rule), or, if the brochure is discontinued, on a five by eight
inch card (in twelve point type). Under Part III.C the proposed
respondents must also display in the reception area of its facilities a
sign with the same warning printed in one-inch high letters.
Part IV requires proposed respondents to disclose that diet or
exercise is required to lose weight in connection with any
representation about the effect of a treatment, program, product, or
service on weight or body size, unless they have competent and reliable
evidence to the contrary. Like the safety disclosure, this disclosure
must also be clear and prominent as defined in the order.
Part V addresses proposed respondents' deceptive use of consumer
testimonials. It prohibits misrepresentations in advertising for weight
control or reduction treatments, programs, products, and services to
the effect that any endorsement constitutes the typical and ordinary
experience of members of the public who use the advertised treatment,
program, product, or service.
Part VI.A-C contains fencing-in provisions that require proposed
respondents to have prior substantiation for claims that any treatment,
program, product, or service provides any benefit in terms of weight
loss or weight maintenance or has an effect on cellulite or body
measurements. Under Part VI.D proposed respondents are required to have
substantiation for claims about the safety of weight loss or body
shaping treatments, programs, products, or services.
Parts VII and VIII contain safe harbors for claims that are
permitted on the labeling of foods and drugs under the applicable
regulations of the Food and Drug Administration. The remaining
provisions of the order are standard compliance provisions. Part IX
requires the corporate respondents to provide copies of the order to
relevant personnel. Part X requires the proposed respondents to keep
records about covered claims for five years. Under Part XI, the
corporate respondents are required to notify the Commission of certain
changes in structure, and Part XII requires the individual respondent
to notify the Commission of changes in his employment for the next five
years. Finally, Part XIII of the proposed order obligates the
respondents to file appropriate compliance reports.
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.
Donald S. Clark,
Secretary.
[FR Doc. 95-8858 Filed 4-10-95; 8:45 am]
BILLING CODE 6750-01-M
