FOR RELEASE: MAY 25, 1993
CALIFORNIA INFOMERCIAL MARKETER SETTLES FTC CHARGES
OF FALSE AND UNSUBSTANTIATED CLAIMS FOR
PURPORTED PAIN-RELIEVING DEVICE
Numex Corporation, a California-based company, and two of
its officers, have agreed to settle Federal Trade Commission
allegations that they made numerous false or unsubstantiated
claims in an infomercial promoting "Therapy Plus," a hand-held
mechanical roller device they claimed would relieve various kinds
of musculoskeletal pain, including the pain of arthritis. The
infomercial also included a deceptive expert endorsement and
deceptive consumer testimonials, the FTC charged. The proposed
settlement would prohibit the respondents from engaging in
similar deceptive practices in the future, and require them to
substantiate future health and pain-relief claims with competent
and reliable scientific evidence.
In three separate complaints detailing the charges, the
Commission named Numex Corporation, based in Cerritos,
California; Gisela E. Flick of Cerritos, the former Executive
Vice President of Numex; and James L. McElhaney, M.D., of
Huntington Beach, California, the former Vice President and
Medical Director of Numex (collectively, Numex). McElhaney also
appeared as an expert endorser for the product.
The FTC's complaints allege that Numex advertised and
promoted Therapy Plus through a 30-minute program-length
commercial -- or infomercial -- called "Freedom from Pain," as
well as in other ways.
The FTC's complaints recite, among others, the following
statements from the Numex infomercial:
- more -
Numex Corporation--05/25/93)
-- (Consumer Endorser): "I've had rheumatoid arthritis for
five years. And the past year it had gotten worse, to the
point where I thought of giving up golf and also knitting,
and those are my two favorites. . . . So I borrowed the
roller, and the first night I thought, my God, it worked,
because I slept all night.
-- (Announcer): "It's called Therapy Plus, the pain
reliever, and its effectiveness is backed by scientific
proof and documented clinical use. You'll meet some of the
people who have used it: the professional sports star, the
weekend warrior, and the incredible testimony of pain
sufferers; how it relieves acute pains, chronic pains, the
pain of arthritis, bursitis, tendinitis, and many other
muscle-related pains.
-- (Voice-Over): "Patients who have been suffering with
chronic pain for years, now relieve pain in minutes, with no
effort, no exercise, and no drugs."
-- (McElhaney): "I've treated over 250 patients. 95% have
experienced relief within minutes. It's the greatest
advance in the treatment of pain that I've seen in all my
medical years, and for my patients, it's a godsend."
As a result of these statements and others, the FTC alleged,
the infomercial made numerous false and unsubstantiated repre-
sentations. According to the complaints, the representations for
which Numex failed to have substantiation include, among others,
statements that Therapy Plus will relieve virtually all types of
muscular pain as well as the pain of arthritis and other painful
conditions (such as swelling or gnarling of the joints); that it
will do so for a substantial number of people, in minutes, and is
as good as or better at doing so than analgesics, physical
therapy, or medication; that it will eliminate the need to see a
doctor for pain; that it is an effective substitute for surgery
in relieving arthritic knee pain; and that the consumer testi-
monials reflect the typical experience of Therapy Plus users.
The complaints also allege that the infomercial contained
false representations, including that scientific proof demon-
strates that Therapy Plus is effective in significantly reducing,
relieving, or eliminating pain; that Therapy Plus is a major
umex Corporation--05/25/93)
medical breakthrough in the treatment of pain; that a substantial
number of doctors use it and recommend it as an effective way of
relieving pain; and that two endorsers, including McElhaney, were
independent of the marketers of Therapy Plus. (In fact, the FTC
alleged, Numex failed to disclose that the two endorsers had a
material connection with the marketers.)
The proposed consent agreements settling the allegations
would prohibit the respondents, with respect to Therapy Plus or
any other device, from misrepresenting that scientific proof
demonstrates the effectiveness of such a product in relieving
pain, that such a product is a significant medical breakthrough,
or that the medical or scientific community uses or recommends
such a product as effective in relieving pain. Also, the
respondents would be prohibited from misrepresenting the
existence or results of any test or study when marketing any
personal or household product.
The proposed settlements would further require Numex to
possess and rely on well-controlled clinical testing to support
claims that a device reduces or eliminates pain. For claims
about any other health or medical benefits, the respondents would
be required to possess competent and reliable scientific evidence
to support the representations.
In addition, the proposed settlements would prohibit Numex
from making any representation that an endorsement for any
product or service represents the typical or ordinary experience
of people who use such product or service, unless Numex has
competent and reliable evidence to substantiate that claim. The
respondents also would be required to disclose any material
connection between the endorser of any product or service and any
individual or company marketing that product or service.
Finally, the settlement with McElhaney contains two addi-
tional provisions that would require him, when making certain
claims as an expert endorser, to support his represented expert
conclusions with competent and reliable scientific evidence, as
well as an actual exercise of his expertise in the form of an
examination or testing of the relevant device at least as exten-
sive as an expert in that field would normally conduct in order
to support the conclusions presented in the representation.
The Commission vote to accept the proposed consent
agreements for public comment was 5-0.
The proposed consent agreements 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
Numex Corporation--05/25/93)
make them final. Comments should be addressed to the FTC, Office
of the Secretary, 6th Street and Pennsylvania Avenue, N.W.,
Washington, D.C. 20580.
NOTE: A consent agreement is for settlement purposes only and
does not constitute 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.
Copies of the complaints, proposed consent agreements, and
analyses of the consents to aid the public in commenting, are
available from the FTC's Public Reference Branch, Room 130, same
address as above; 202-326-2222; TTY for the hearing impaired 202-
326-2502.
# # #
MEDIA CONTACT: Brenda A. Mack, Office of Public Affairs
202-326-2182
STAFF CONTACT: Lesley Anne Fair, Bureau of Consumer
Protection, 202-326-3081
(FTC File No. 912 3280)
(Numex)