The marketers of "Jogging in a Jug," a beverage made of apple juice, grape juice and vinegar, have agreed to pay $480,000 and send a notice to consumers as part of a settlement of Federal Trade Commission charges that they made numerous false health claims for the drink. In addition, should they use this or a similar product name in the future, they would have to clearly and prominently state that there is no scientific evidence that the product provides any health benefits. The settlement reached by the FTC also contains broad provisions that would prohibit Third Option Laboratories, Inc. and its officers from making the challenged or other false or unsubstantiated claims for any food, drug, or dietary supplement they market and from using testi- monials in a deceptive manner in the future.
The FTC complaint detailing the allegations names Third Option; William J. (Jack) McWilliams, company president; Danny Bishop McWilliams, treasurer; and Susan McWilliams Bolton, secre- tary. The respondents are based in Muscle Shoals, Alabama. They have marketed the product nationwide in television, radio and newspaper ads for approximately $6 to $7 for a 64-ounce bottle (advertised as a one-month supply), distributing it through supermarkets and direct telephone orders. In many of the ads and promotional materials, Jack McWilliams provides testimonials for the product and also touts "hundreds of testimonials" received from users.
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Third Option Labs--04/13/95)
According to the FTC complaint, the respondents have falsely and without adequate substantiation represented that Jogging in a Jug, among other things:
- cures or alleviates heart disease, arthritis, lethargy, dysentery, constipation, swelling of the legs, and muscle spasms;
- substantially lowers serum cholesterol and triglycerides;
- improves the condition of the circulatory system;
- cleans internal organs;
- prevents or reduces the risk of cancer, leukemia, heart disease, and arthritis;
- provides the same health benefits as a jogging regimen;
- stabilizes blood sugar levels in insulin-dependent diabetics;
- aids in recovery from viral diseases; and
- is approved by the U.S. Department of Agriculture
The FTC also alleged that the testimonials the respondents used were deceptive because they falsely represented that the experiences shown were typical of consumers who drink Jogging in a Jug.
The proposed consent agreement to settle these allegations, announced today for public comment, would prohibit Third Option and the named officers from making any of the allegedly false claims for Jogging in a Jug or any substantially similar product in the future. The settlement also would require them to have competent and reliable scientific evidence to support any repre- sentation they make about the performance, safety, benefits, or efficacy of any food, dietary supplement, or drug they market in the future. In addition, the settlement contains prohibitions against the deceptive use of testimonials or endorsements, and misrepresentations that any product has been tested, approved or endorsed.
If the respondents continue using the name Jogging in a Jug or any other name that communicates the same message, they would have to include the following disclosure clearly and prominently in the same materials where that name appears:
"THERE IS NO SCIENTIFIC EVIDENCE THAT JOGGING IN A JUG [OR OTHER NAME] PROVIDES ANY HEALTH BENEFITS."
Third Option Labs--04/13/95)
The proposed settlement also would require the respondents to send a letter by first class mail to all customers who pur- chased Jogging in a Jug directly from the respondents since 1993. The letter would advise purchasers of the FTC's allegations in this case. A similar letter advising of the FTC's allegations in the case will be sent to distributors of the product who have done business with the respondents since 1993.
In addition, the settlement would require the respondents to pay $480,000, which would be used either for refunds to consumers or, if that is not practical, disgorged to the U.S. Treasury. Finally, the settlement contains various record keeping and reporting provisions that would assist the FTC in monitoring the respondents' compliance with the settlement.
The Commission vote to announce the proposed consent agree- ment for public comment was 4-0. Commissioner Mary L. Azcuenaga, in a separate concurring and dissenting statement, said she con- curred in the complaint on which the order is based except to the extent that it alleges as a violation the content of newspaper articles that are reproduced in the respondents' promotional materials and those materials accurately identify and reproduce such articles in their original format without modification.
Second, she dissented from Part VII of the order, stating: "Although the complaint does not challenge as materially mislead- ing the unadorned use of the product's name, Jogging in a Jug (nor would I, given the absence of evidence), Part VII of the order prohibits...use of the name Jogging in a Jug...unless the name is accompanied clearly and prominently by a [specified] disclosure." She explained further that "[t]he Commission in the past has used this form of relief, which can substantially limit potentially lawful conduct, to remedy health claims that seem more credible than those likely to be taken by reasonable con- sumers here," such as the pain relief claim conveyed by the name "Aspercreme." She said, "[t]he likelihood that a consumer would expect that a product named Aspercreme would contain aspirin and would rely on that claim to his or her detriment seems to me far greater than the likelihood that a consumer would rely to his or her detriment on an implied message that a product called Jogging in a Jug would provide the health benefits of jogging...."
The consent will be published in the Federal Register short- ly 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 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 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. Third Option Labs--04/13/95)
Copies of the complaint, consent agreement, an analysis of the agreement to assist the public in commenting, and Commis- sioner Azcuenaga's statement are available from the FTC's Public Reference Branch, Room 130, same address as abov.; 202-326-2222; TTY for the hearing impaired 1-866-653-4261.
(FTC File No. 942 3027)