For
Release: March 17,
2004
Marketers
of the Supplements “Focus Factor” and “V-Factor”
Agree to Settle FTC Charges and Pay $1 Million
Marketers of “Focus Factor,” a dietary supplement
that purports to improve concentration, and “V-Factor,”
a supplement that purports to enhance sexual performance,
have agreed to settle Federal Trade Commission charges that
they made numerous unsubstantiated advertising claims for
the products. In one complaint, the FTC charges Vital Basics,
Inc. of Portland, Maine, and its principals, Robert Graham
and Michael Shane (VBI respondents), with not having adequate
substantiation to back up claims they made about the efficacy
of “Focus Factor” and the safety of “V-Factor
Natural Pack.” The VBI respondents have agreed to a
consent order containing provisions designed to prevent them
from engaging in similar acts or practices in the future and
requiring the payment of $1 million in consumer redress. In
the other complaint, the FTC charges Creative Health Institute,
Inc. of Corinth, Texas, and its principal, Dr. Kyl Smith (CHI
respondents), with making unsubstantiated claims about Focus
Factor’s ability to improve users’ focus, memory,
mood, and concentration. The CHI respondents have also agreed
to a consent order designed to prevent similar practices in
the future and requiring the payment of $60,000 in consumer
redress.
Focus Factor is a dietary supplement that
contains, among other things, vitamins, minerals, botanicals,
and amino acids. Dr. Smith developed Focus Factor, and advertised
and sold it through Creative Health Institute from at least
1997 to 2000. Since 2000, the VBI respondents have advertised
and sold Focus Factor, and the CHI respondents participated
in the advertising of the product. The respondents allegedly
marketed Focus Factor as improving the focus, memory, and
concentration of healthy adults; alleviating stress and combating
the fatigue, irritability, and mood swings that healthy adults
experience; making children and teenagers feel more alert,
focused, and mentally sharp; improving students’ ability
to concentrate and their academic performance; improving senior
citizens’ memory, mental clarity, and energy; improving
adults’ ability to absorb information in books and to
recall facts, figures, and names; and as having the desired
effects in as little as one to 10 days. The Commission’s
two complaints challenge these claims as unsubstantiated.
V-Factor is a dietary supplement that contains,
among other things, yohimbine and L-argenine. The VBI respondents
allegedly marketed V-Factor as a male sexual performance enhancer.
The FTC alleges that the VBI respondents did not have substantiation
for their claim that V-Factor is safe for virtually all men,
and that they misrepresented that a clinical study proved
that V-Factor is safe and effective at improving sexual response
and function.
The Commission’s complaints further allege that both
sets of respondents failed to disclose that certain endorsers
who appeared in Focus Factor advertising had material connections
with the product. In addition, the FTC alleges that the VBI
respondents: (1) represented that consumer endorsements were
made without compensation, and failed to disclose that consumer
endorsements were solicited with a promise of a free 6-month
supply of Focus Factor to those individuals whose testimonials
were used in advertising; and (2) misrepresented that certain
radio infomercials were independent radio programs, not paid
commercial advertising.
The proposed consent agreement with the
VBI respondents prohibits any representation about the safety,
performance, benefits or efficacy for any food, drug or dietary
supplement for:
- the brain or any mental functions or
processes;
- sexual response, function, enhancement,
or performance; or
- the treatment, cure, mitigation, or
prevention of any disorder;
unless the respondents possess and rely
upon competent and reliable evidence substantiating that representation.
In addition, the proposed settlement prohibits them from making
unsubstantiated safety claims for V-Factor or any product
containing yohimbine; misrepresenting the existence, contents,
validity, results, conclusions, or interpretations of any
test; failing to disclose material connections with endorsers;
and misrepresenting the nature of paid advertising. Finally,
the settlement requires the VBI respondents to pay $1 million
in consumer redress.
- The proposed consent agreement with
the CHI respondents prohibits them from making any representation
about the benefits, performance, or efficacy for any food,
drug or dietary supplement for:
- the brain or any mental functions or
processes;
- stress, anxiety, energy, mood, or behavior;
- academic or business performance;
- longevity, age-related memory impairment,
or dementia; or
- the treatment, cure, mitigation, alleviation
of the symptoms, prevention, or reduction in the risk of
any mental, brain, or central nervous system disease or
disorder;
unless they possess and rely upon competent
and reliable evidence substantiating that representation.
The proposed settlement further requires that they clearly
and prominently disclose any material connections with endorsers.
Finally, the proposed settlement requires the CHI respondents
to pay $60,000 in consumer redress.
The Commission vote to place
the two proposed consent agreements and complaints on the
public record was 5-0. Announcements regarding the
two proposed consent agreements will be published in the Federal
Register shortly. The agreements will be subject to public
comment for 30 days, until April 16, 2004, after which the
Commission will decide to make them final. Comments should
be addressed to the FTC, Office of the Secretary, 600 Pennsylvania
Avenue, N.W., Washington, D.C. 20580.
NOTE: A consent agreement
is for settlement purposes only and does not constitute an
admission of a law violation. When the Commission issues a
consent order on a final basis, it carries the force of law
with respect to future actions. Each violation of such an
order may result in a civil penalty of $11,000.
Copies
of the complaints, proposed consent agreements, and analyses
of the agreement to aid in public comment are available from
the FTC’s Web site at http://www.ftc.gov
and also from the FTC’s Consumer Response Center, Room
130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.
The FTC works for the consumer to prevent fraudulent, deceptive,
and unfair business practices in the marketplace and to provide
information to help consumers spot, stop, and avoid them.
To file a complaint, or to get free information on any of
150 consumer topics, call toll-free, 1-877-FTC-HELP (1 877-382-4357),
or use the complaint form at http://www.ftc.gov.
The FTC enters Internet, telemarketing, identity theft, and
other fraud-related complaints into Consumer Sentinel, a secure,
online database available to hundreds of civil and criminal
law enforcement agencies in the U.S. and abroad.
MEDIA
CONTACT:
Brenda Mack
Office of Public Affairs
202-326-2182
STAFF CONTACT:
Heather Hippsley or Shira Modell
Bureau of Consumer Protection
326-3285 or 202-326-3116
(FTC File No. 012-3248)
(http://www.ftc.gov/opa/2004/03/vitalbasics.htm)
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Related Documents:
In
the Matter of Vital Basics, Inc.; Robert
B. Graham; and Michael B. Shane,
File No. 012 3248
In
the Matter of Creative Health Institute, Inc., and Kyl
L. Smith, File No. 012 3248
Consumer Information:
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