FEDERAL TRADE COMMISSION COMPLAINT:

  • The Federal Trade Commission ("FTC") brought an action against TriVita, Inc. and affiliated defendants for violations of the FTC Act.
  • TriVita markets a "prickly pear" fruit drink ("Nopalea") that is derived from the Nopal Cactus. The company charges consumers $39.99, plus shipping and handling, for each 32-ounce bottle of Nopalea.
  • According to the complaint, the FTC alleged that defendants' websites advertise the product as providing "Inflammation Relief without a Prescription."
  • Defendants also ran infomercials marketing the product - featuring celebrity endorser and former supermodel Cheryl Tiegs - as an "anti-inflammatory wellness drink" that relieves pain, reduces and relieves joint and muscle swelling, among other health-related benefits.
  • The FTC alleged that the infomercials also feature testimonials of paid employees who are trying to pass themselves off as satisfied customers.
  • The FTC argued that unfounded health claims, that are advertised without the backing of competent and reliable scientific evidence, violates the law.

FTC ACT VIOLATIONS:

  • Defendants allegedly violated the Act by:
    1. making unsupported claims that the product significantly improves breathing and relieves sinus infections and other respiratory conditions, and provides significant relief from pain, swelling of the joints and muscles, and psoriasis and other skin conditions;
    2. making false claims that the health benefits were proven by clinical studies; and
    3. failing to disclose that supposedly ordinary consumer endorsers were in fact TriVita sales people who received commissions for selling the defendants' products.

SETTLEMENT:

  • Defendants agreed to pay $3.5 million for consumer refunds in order to settle the FTC's claims of deceptive marketing.
  • Additionally, defendants are barred from: 1) making the health claims alleged in the complaint when marketing Nopalea, or any other food, drug or dietary supplement, without supporting randomized, double-blind, placebo-controlled human clinical tests conducted by qualified researchers; 2) making any health claims without competent and reliable scientific evidence; 3) misrepresenting that health benefits are clinically proven when they are not; and 4) failing to disclose any material connection between endorsers of their products and themselves.

TAKE AWAY:

  • The FTC is committed to eliminating deceptive marketing practices, such as over-hyped health claims.
  • Any marketing campaign must be conducted within the confines of applicable laws and regulations.
  • As we can see from this case, violations of the FTC Act come with a stiff penalty: TriVita defendants are now forced to hand over $3.5 million.

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