The infomercial is a popular marketing vehicle for nutraceuticals and alternative medical devices. Recently, unscrupulous infomercial marketers have come under attack for unfair and deceptive trade practices. These two examples provide important lessons for makers of legitimate supplement and functional food products.
Dateline NBC: Infomercials, from the inside out.
In this undercover investigation, show producers got the idea to market a product that could not possibly work, a nutritional supplement that moisturized from the inside out. They put Nestle Quik in capsules and then bottled them under the name “Moistural.” The producers then went to an informercial producer with the product and asked them to make an infomercial for “Moistural.”
The informercial producers hired a hostess, professional actors and a doctor who had never taken or even seen the product to say glowing things about it, all scripted by the infomercial company, complete with fake clinicals. Of course, it was all captured on hidden camera. Not pretty.
To watch the teaser that ran on the Today Show, click here.
FTC v. Q-Ray: Real product, unreal claims.
On September 6, 2006, the Federal District Court for the Northern District of Illinois held that the marketers of the Q-Ray bracelet were guilty of unfair and deceptive trade practices in violation of Section 5 of the FTC Act. To read the decision, click here.
The Q-Ray was is marketed extensively with infomercials. In its decision, the Court examined the pain relief claims made in the infomercials about the “ionizing” bracelet in detail.
Que Te Park testified that “ionization” has no scientific meaning. He has no idea what
the phrase “ionization performance,” which appears in his consumer brochures, means. T.
371-72. His testimony on ionization was contradictory and full of obfuscation. He was
lacking in credibility. He is a clever marketer but a poor witness.
Que Te Park made up the theory that the bracelet works like acupuncture or Eastern
medicine. He has no testing or studies to support his theory. T. 379. He testified that
anyone can find the theory on Google. T. 376-79.
There was no scientific evidence presented that the Q-Ray bracelet actually receives, retains, or emits an electrical charge or has any properties different from any other bracelet made from the same metals. The Q-Ray bracelet was marketed as an “ionized bracelet” as part of a scheme devised by Que Te Park and the corporate defendants (hereafter collectively referred to as “Defendants”) to defraud consumers out of millions of dollars by preying on their desire to find a simple solution to alleviate their physical pain.
Not surprisingly, the court ordered disgorgement in a minimum amount of $22.5 million up to a maximum of $87 million.
About Joel Rothman
Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.
