FOR RELEASE: JUNE 29, 1993
INFOMERCIAL PRODUCER/HOST MICHAEL LEVEY AND FIRM
TO PAY $275,000 TO SETTLE FTC CHARGES
Michael S. Levey, who produces and hosts program-length
television commercials -- or infomercials -- for a range of
products, has agreed to pay $275,000 for consumer redress and to
abide by broad restrictions on his future marketing projects, as
part of an agreement to settle Federal Trade Commission charges.
The FTC alleged that Levey, who does business as Positive
Response Marketing, Inc., made a variety of false and misleading
representations in four separate infomercials that he produced to
market a diet product, a baldness product, an impotence treatment
and a kitchen mixer. The FTC also alleged that the infomercials
were deceptive in that they purported to be independent program-
ming rather than paid ads.
Levey and his firm are based in Topanga, California. Posi-
tive Response Marketing also does business as Positive Response
Television and Positive Response Advertising, according to the
FTC complaint detailing the charges in the case. These charges
follow similar FTC allegations against two other companies for
which Levey produced the infomercials at issue -- Twin Star
Productions, Inc. and Media Arts International, Ltd. (the latter
is a subsidiary of National Media Corporation).
The products promoted through the challenged infomercials,
as listed in the FTC complaint, are the EuroTrym Diet Patch, a
purported weight-loss product promoted in an infomercial called
"The Michael Reagan Show"; Foliplexx, promoted as a baldness
remedy in the infomercial titled "Breakthrough '88"; Y-Bron,
marketed in the "Let's Talk" infomercial as a cure for impotence;
and an immersion-style kitchen mixer touted in the "Amazing
Discoveries: Magic Wand" infomercial. Levey allegedly produced
the infomercials for the first three products between 1987 and
- more -
Levey--06/29/93)
1989 as an employee and shareholder of Twin Star Productions.
The Magic Wand was distributed by Media Arts International, and
the infomercial for this product was part of the "Amazing
Discoveries" series hosted by Levey, the complaint states. All
of the infomercials ran nationwide on network, independent and
cable stations, according to the complaint.
In addition to the general allegation that these infomer-
cials were deceptive because they were misrepresented as indepen-
dent programming rather than paid advertising, the FTC complaint
includes the following specific charges about each one.
EuroTrym Diet Patch
According to the complaint, the infomercial for this product
represented that it would prevent hunger pains and enable con-
sumers to lose substantial amounts of weight in a majority of
cases, and that tests had shown that the patch promotes weight
loss. These representations were all false and unsubstantiated,
the FTC charged.
Foliplexx
The FTC charged that the Foliplexx infomercial represented
that this product would curtail hair loss and promote new hair
where it already had fallen out, thus preventing or reversing
baldness. The infomercial also allegedly represented that the
product was an effective baldness remedy in a large percentage of
cases, and that tests had established the effectiveness of the
product. Again, the FTC alleged, the representations were all
false and unsubstantiated.
Y-Bron
The Y-Bron infomercial allegedly represented, among other
things, that the product would cure or reverse impotence and
increase sexual drive, and that tests had proven it was an
effective remedy for impotence. These representations were
false, and Levey did not have substantiation for them, the FTC
charged.
Magic Wand
The infomercial for this product included demonstrations of
the product at work, allegedly representing that it could crush a
whole pineapple in seconds and that it could whip skim milk for
use as a mousse-like dessert or in frosting. The product could
do neither of these things, the FTC alleged, charging that the
demonstrations were altered. In fact, according to the com-
plaint, the infomercial demonstrations used crushed pineapple
pulp with a slice of pineapple on top to resemble a whole, fresh
pineapple, and substituted whipped topping and prepared frosting
for the skim milk.
Levey--06/29/93)
All four infomercials also allegedly included deceptive
endorsements. Specifically, testimonials and endorsements
included in the Diet Patch, Foliplexx and Y-Bron infomercials
allegedly misrepresented the typical experience of consumers who
have used these products, and also represented that the speakers
were independent of the marketers when that was not always the
case, the FTC charged. In addition, according to the complaint,
the Magic Wand infomercial included a statement that it was
"approved by the National Association of Advertising Producers
for its integrity and excellence." In fact, the FTC charged,
that association was not independent of the marketers and it did
not have the qualifications to make such an evaluation.
The Settlement Agreement
In addition to the $275,000 redress payment that would be
required under the proposed consent agreement to settle these
charges, the settlement contains provisions that would:
-- prohibit Levey and his firm from disseminating any of the
three Twin Star infomercials, or any other infomercials that
misrepresent themselves to be something other than paid ads;
-- prohibit the respondents from making any of the alleged
false claims included in any one of the four infomercials
for the same or substantially-similar products;
-- prohibit them from selling any baldness or impotence
product not approved by the Food and Drug Administration;
-- with regard to any baldness, impotence or weight-loss
product the respondents sell, require them to have competent
and reliable scientific evidence to support any representa-
tions that are similar in nature to the alleged unsubstan-
tiated claims cited in the complaint;
-- require the same standard of substantiation for any
representations about the efficacy or safety of any food,
drug or device they sell (FDA-approved claims for such
products would be permitted under the order);
-- require competent and reliable evidence to support any
representations about the performance or efficacy of any
other product or service;
-- require Levey and Positive Response to disclose in any
advertisement for a weight-control product that dieting or
exercise or both are required to lose weight (unless the
respondents have evidence demonstrating their product works
without diet or exercise);
-- require them to disclose any material connection between
them and any endorser they use in the course of marketing a
(Levey--06/29/93)
product or service, prohibit them from misrepresenting that
an endorser's experience is typical of consumers who use the
product or service, and require that "expert" endorsements
come only from entities with appropriate qualifications that
actually have evaluated the product or service;
-- prohibit deceptive demonstrations, such as those that
include undisclosed, material substitutions; and
-- with regard to any infomercial 15 minutes in length or
longer that the respondents produce or sell, require them to
disclose in the first 30 seconds and immediately before any
ordering information the fact that the program is a paid
advertisement.
Finally, the proposed consent agreement includes various
reporting provisions designed to assist the FTC in monitoring the
respondents' compliance.
The Commission vote to accept the proposed consent agreement
for public comment was 4-0, with Commissioner Mary L. Azcuenaga
recused. It will be published in the Federal Register shortly
and will be subject to public comment for 60 days, after which
the Commission will decide whether to make it final. Comments
should be addressed to the Office of the Secretary, FTC, 6th
Street and 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 $10,000.
An FTC fact sheet titled "Infomercials" explains what these
programs are and how consumers can better evaluate them. Free
copies of this brochure, as well as copies of the complaint,
proposed consent, an analysis of both to assist the public in
commenting on this case, and the news releases announcing the
Twin Star and Media Arts International cases, are available from
the FTC's Public Reference Branch, Room 130, at the above ad-
dress; 202-326-2222; TTY for the hearing impaired 1-866-653-4261.
# # #
MEDIA CONTACT: Bonnie Jansen, Office of Public Affairs
202-326-2161
STAFF CONTACT: Kathryn C. Nielsen, Seattle Regional Office
2806 Federal Building, 915 Second Avenue
Seattle, Washington 98174
206-220-6350
(FTC File No. 902 3177) (levey)