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Note:This website is where you can find advertising law information based on archived news briefs from past issues of Advertising Compliance Service. These archived advertising law-related news briefs were published in Advertising Compliance Service in October 2002.





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Department of Health and Human Services (HHS) Secretary Tommy G. Thompson has asked the Food and Drug Administration (FDA) to evaluate the best scientific evidence available and recommend the strongest possible mandatory warning label possible for ephedra products.

In addition, FDA announced a new program to proactively analyze all herbal ephedra products to ensure that they contain natural ingredients and not synthetic ingredients as required by law. FDA also noted that it's illegal for companies to market non-herbal synthetic ephedrine alkaloid products as dietary supplements.

FDA will analyze ephedra products to determine if natural ingredients are being used. This is in addition to recent FDA action in June when the agency issued warning letters to six marketers of products containing ephedrine compounds that appeared to be synthetically derived.

FDA also is continuing its efforts to prevent marketers from advertising ephedra products as alternatives to street drugs. On October 7, 2002, FDA sent a warning letter to Xoch Linnebank, who operates a website based in the Netherlands. The website was advertising the Ephedra product Yellow Jacket as "herbal XTC." The website said,

"the Yellow Jacket has an extremely stimulating rush, with sensations one would attribute to E or amphetamines."

Earlier this year, FDA sent a warning letter to Herbtech, which was marketing two ephedra products as street drug alternatives.

(FDA Release, P02-41, October 8, 2002.)


A testing laboratory agreed to settle FTC charges over its role in providing false test results for a purported do-it-yourself home anthrax test. Sani-Pure Food Laboratories and its partner, Ronald Schnitzer, provided test data in support of Pur-Test Anthrax Test (PTAT), the purported anthrax test kit that was the subject of FTC's action against Vital Living Products, Inc. (Vital Living) earlier this year. The Sani-Pure test report states that it had conducted tests, using anthrax, that showed that PTAT was effective for detecting the presence of anthrax. In fact, Sani-Pure had not used anthrax in its testing. The settlement bans Sani-Pure and Schnitzer from testing to detect the presence of a biological or chemical warfare agent and from misrepresenting test results.

Vital Living began marketing PTAT in October 2001, using ads that claimed that PTAT was 95% effective in detecting anthrax bacteria and spores on surfaces, in the air, and in water, both at home and in the workplace. In November 2001, Vital Living retained Sani-Pure to conduct testing to validate PTAT's efficacy.

According to FTC, Sani-Pure's test report said that it had tested PTAT's efficacy at detecting "innoculated samples of bacillus anthracis" and that the results showed PTAT to be effective. So Vital Living released promotional materials saying that in testing using anthrax PTAT was 95% effective, with a false positive rate of 5%. In fact, according to FTC, Sani-Pure's testing did not evaluate PTAT's efficacy at detecting anthrax. Instead, Sani-Pure evaluated the efficacy of the product at detecting colonies of bacillus cereus, a common environmental contaminant. According to FTC, bacillus cereus is not an appropriate proxy for anthrax in determining the efficacy of a test that detects the presence of anthrax. In February 2002, FTC announced that it had settled charges that Vital Living had misrepresented PTAT's efficacy.

The matter announced today charges defendants Sani-Pure and Schnitzer with misrepresenting the results of their tests of PTAT. Specifically, the complaint alleges that--

defendants falsely represented that Vital Living's anthrax test kit was effective;

defendants conducted their testing of PTAT using anthrax; and

defendants' test methodology reliably would demonstrate whether PTAT effectively detected anthrax.

The settlement bans the defendants from testing to evaluate or determine the presence or absence of a biological or chemical warfare agents, or evaluating the efficacy of a product designed to detect such agents.

(Sani-Pure Food Laboratories, et al., FTC File No. 022 3144, Civil Action No. 02-CV-4608, October 23, 2002.)


Operators who allegedly used spam, deceptive earnings claims, and fictitious testimonials to sell spam e-mail lists as business opportunities agreed to settle FTC charges that their operations violated federal laws. The settlements will bar defendants from making false, misleading, or deceptive claims about their e-mail lists, software, service, marketing program, or any other business opportunity.

FTC charged that Richard Jon Scott, doing business as Cyber Data, and Sonya Lockery, doing business as Internet Specialists, sent spam to consumers claiming that by buying their bulk e-mail lists, consumers could make easy money selling products and services on the Internet. Internet Specialists also promoted the spam list on a Web site. Cyber Data's e-mail claimed that purchasers reasonably could expect to earn "over $10,000,000" by selling a $5 product via bulk e-mail.

Internet Specialists made similar earnings claims, and its Web site and e-mail contained earnings claims that appeared to be endorsements from previous purchasers. FTC charged that both Scott and Lockery made false earnings claims and falsely characterized the quality of their bulk e-mail lists. Cyber Data claimed that its e-mail address lists contained "no duplications," and included "almost every person on the Internet today."

According to FTC, Internet Specialists falsely claimed that its 11 million e-mail address list consisted of consumers who were "highly responsive" since they had "either requested to receive e-mail advertisements or have responded to our ads." It also claimed its lists contained no duplicates.

The settlements will permanently bar defendants from making any false, misleading, or deceptive claims about potential earnings from any bulk e-mail list, software, service, or marketing program, or any other business opportunity.

The settlement with Cyber Data bars it from claiming that its e-mail lists contain no duplicates and includes almost everyone on the Internet today.

The settlement with Internet Specialists also bars the "no duplicate" claim and bars misrepresentations that the lists include addresses of individuals interested in receiving bulk e-mail ads.

FTC's order requires Cyber Data to pay $20,000 in consumer redress and suspends payment by Internet Specialists.

NOTE: Consent judgments are for settlement purposes only and do not constitute an admission by the defendant of a law violation. Consent judgments have the force of law when signed by the judge.

(Cyber Fire Power, et al., FTC File No. 022-3031, October 23, 2002; Internet Specialists, et al., FTC File No. 022-3044, October 23, 2002.)
















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