ERSP Compliance Case - 2 Elevens, LLC "Belly Burner"

This is a report of a compliance proceeding regarding advertising that came to ERSP’s attention through its ongoing monitoring of direct response advertising in the marketplace.  In the original inquiry, ERSP requested substantiation for several core performance and consumer testimonial claims for the Belly Burner weight loss belt marketed by 2 Elevens, LLC. 

The direct response advertising that was the subject of the original inquiry consisted of a product website (which included streaming video) and an approximately two-minute short form broadcast advertisement. During the pendency of the inquiry, the marketer informed ERSP that the subject advertising was no longer being disseminated in its original context and that it had voluntarily removed the testimonials “Lost 60 pounds & 12 inches in just 10 weeks” and “I Lost 6 belt sizes in 8 weeks” from future advertising for the product.

With respect to the product performance claims that were communicated in the advertising, although ERSP did not dispute that using the Belly Burner during routine physical activities will increase your thermal core temperature and will “speed up the calorie burning process,” it was not persuaded that the increase in temperature from use of the belt alone during normal activities is significant enough to “shed away unwanted inches” or “Get rid of belly fat…” and that these messages could be reasonably interpreted from the advertising. Accordingly, ERSP recommended that the Belly Burner advertising be further modified to clearly and conspicuously disclose that the results stated and depicted in the advertising are based on a consumer’s adherence to all of the component aspects (i.e., the calorie counter, meal plan and exercise DVD) of the Belly Burner package.

Lastly, ERSP determined that it was not shown that the thermographic images used in the advertising were representative of typical product performance nor did the thermographic testing provide a reasonable basis for the claims communicated in the context of the advertising regarding increased fat burning, calorie burning or inches lost around the abdomen. ERSP recommended that the marketer modify the advertising accordingly to more clearly communicate the relevancy of the depicted images.

Accordingly, after the case concluded, through its ongoing monitoring program, ERSP continued to track the advertising content appearing on the Belly Burner website (www.thebellyburner.com) and on television. A reasonable period of time after publication of the original decision, ERSP exercised its right, pursuant to section 4.1 (A) of the ERSP Policy & Procedures, to notify the marketer and ask for a report on the status of the advertising at issue and an explanation about what steps the marketer had taken to bring its direct response advertising into compliance with ERSP’s original determination.

Following 2 Elevens’ receipt of ERSP’s compliance inquiry, the marketer informed ERSP that there is currently no print advertising for the Belly Burner, that it had withdrawn the broadcast advertising (and accompanying streaming video) that was the subject of the self-regulation review, and voluntarily elected to discontinue use of the following claims:

• "Burn fat faster while: walking; biking; jogging; any form of exercise!"
• "Get rid of belly fat and have amazing abs"
• "It safely and naturally generates more heat which increases your metabolic rate and speeds up the calorie burning process which means more weight loss!"
• "Just wrap up and slim down"
• "You have nothing to lose but pounds and inches"
• "Burns more calories faster"
• "Heat vision photography shows how the belly burner raises your body's core temperature supercharging the calorie burning process and accelerating the fat burning energy needed to trim down those love handles and belly fat."
• "Get your amazing weight loss belt now"
• "With The Belly Burner you will lose inches around your waist and love handles just by wearing it during your daily activities or exercise."
• "...increases your thermal core temperature to shed away unwanted inches
• "Lost 60 pounds & 12 inches in just 10 weeks"

Accordingly, after review of 2 Elevens’ response and voluntary actions, ERSP agrees that the marketer has made a bona fide, good faith effort to make a number of changes that are consistent with ERSP’s recommendations made in its March 2011 decision regarding this product. In particular, ERSP acknowledged that 2 Elevens has made a concerted effort to address ERSP’s concerns with respect to providing consumers with additional information indicating that the results promised in the advertising will be a result of the use of the Belly Burner belt in conjunction with ongoing exercise, physical activity, and adherence to the component aspects (i.e., the calorie counter, meal plan and exercise DVD) featured as part of the Belly Burner package.

Notwithstanding the aforementioned conclusion, ERSP remained troubled with the following two aspects of the advertising:

1)      Consumer Testimonial Disclosures

The revised broadcast advertising includes two testimonials, one from Carlos Mencia (“I literally went from a size 38 to a size 32”) and another from Karen P (“Once I started using the Belly Burner, I’ve lost over 25 pounds”). While ERSP has no reason to doubt the authenticity of the testimonials, it remained concerned about the consumer take-away from the fine print disclosures which accompanied the testimonials and purportedly were used to qualify the consumer representations.

ERSP notes that the Federal Trade Commission (FTC) revised its “Guides Concerning the Use of Endorsements and Testimonials in Advertising” (see: www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) in 2009. More specifically, under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as “typical” when that is not the case will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides – which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as “results may vary” – the revised Guides no longer contain this safe harbor. Accordingly, when using consumer testimonials, a marketer should either provide substantiation that the consumer’s stated experience is “typical” or, conversely, indicate what the typical result would be given the scenario presented by the consumer. It is important to note that, pursuant to the FTC’s revised Guides, consumer endorsements “may not contain any representations which would be deceptive, or could not be substantiated if made directly by the advertiser” and must reflect what other consumers can generally expect to experience.

Accordingly, the disclosure accompanying Karen P’s testimonial states simply that “Results May Vary” which the FTC has stated is, by itself, inadequate to effectively qualify an unqualified weight loss claim. It is also important to note that while calorimetry and thermographic testing was provided by 2 Elevens, there has been no data provided with respect to any definitive weight loss or inches lost from using the Belly Burner either by itself or in conjunction with the component aspects (i.e., the calorie counter, meal plan and exercise DVD) featured as part of the Belly Burner package.

ERSP determined that the disclosure accompanying Carlos Mencia’s testimonial was problematic, but for a different reason. While the language was more specific, “Results May Vary. With the Belly Burner Belt you can expect to lose at least 1-2 pounds per week. Weight loss is influenced by diet, exercise and caloric intake. Consult you physician before beginning any weight loss program,” the tiny scripted, four sentence disclosure appeared on screen for what appeared to be less than two seconds in fading white print on a grey background and, accordingly, was essentially undecipherable for consumers. Moreover, the generally expected weight loss of a minimum of 1-2 pounds stated in the disclosure is unsupported by the data provided by the marketer. The only substantive product performance data provided by 2 Elevens were from the results of a calorimetry test, which were quantified only as up to a 29% increase in the per minute rate of calorie expenditure when wearing the belt during exercise versus baseline measurements. ERSP would not object to such a disclosure provided it was communicated in an appropriate context. However, the results of the marketer’s calorimetry study were at no time ever reliably extrapolated into a minimum weight loss of 1-2 pounds per week or 6 inches lost (as is stated in the advertisement).

Based upon this rationale, ERSP requested that 2 Elevens modify the disclosure language in the consumer testimonials featured in the advertising.

2) The Calorimetry Test

Reference to the 2 Elevens calorimetry test in the Belly Burner advertising is presented by Marianna Bowman, who appears in a white lab coat and states “Studies show that with the Belly Burner you can burn significantly more calories.”

ERSP concluded that this representation can be readily construed by consumers as an establishment claim. Establishment claims are representations that scientific evidence exists which “proves” or “establishes” the truth of an advertiser’s claims.

According to the FTC’s Policy Statement Regarding Advertising Substantiation, “[m]any ads contain express or implied statements regarding the amount of support the advertiser has for the product claim. When the substantiation claim is express (e.g.., "tests prove", "doctors recommend", and "studies show"), the Commission expects the firm to have at least the advertised level of substantiation.” The high standard of proof traditionally required is that an advertiser produce reliable and well-controlled clinical testing on the advertised product that can be readily verified to substantiate an establishment claim for a product. The FTC often requires at least two adequate and well-controlled clinical studies to substantiate an establishment claim, a higher standard than the FTC’s substantiation requirement for other claims.

However, the “studies” referred to in the advertising (a disclosure accompanies the claim indicating that the reference is based upon “Calorimetry Testing”) was, in fact, one study using a small sample size that produced data using a metric of a comparative percentage of calorie expenditure to express the results. The marketer did not produce a statistical analysis of the results to ERSP showing that the resulting data was statistically significant nor was there any comment from the test administrators indicating that the comparative calorie reduction was significant.

Most importantly, ERSP determined that the results from this one small calorimetry study were not reliable enough to adequately support the establishment claim that “Studies show that with the Belly Burner you can burn significantly more calories.” As such, ERSP recommended that the marketer either modify or discontinue this claim.

During the pendency of the compliance inquiry, the marketer acknowledged ERSP’s recognition of 2 Elevens’ “bona fide good faith effort” to work within the spirit of voluntary advertising self-regulation and comply with ERSP’s recommendations. Although 2 Elevens noted that it did not agree with the issues raised by ERSP or its characterization of the Belly Burner advertising, it agreed to take the ERSP’s recommendations into consideration and appreciated its input. 2 Elevens noted that it maintained the propriety of its broadcast advertising at all times, believing it to be compliant with FTC and all other guidelines.   

Finally, the marketer informed ERSP that the broadcast advertising which was the subject of ERSP’s most recent report was set to expire under the current term for broadcast and 2 Elevens has independently decided not to renew its broadcast commitment for the advertising. It added that because the advertisement will no longer be airing as of October 1, 2011, it believed the report’s findings will become moot.

In conclusion, pursuant to section 4.1(C)(ii) of the ERSP Policy & Procedures, ERSP determined that 2 Elevens demonstrated a bona fide, good faith effort to work within the spirit of voluntary advertising self-regulation and comply with this forum’s recommendations. However, ERSP remained concerned with the truthfulness and accuracy of two aspects of the modified advertising and recommended that 2 Elevens make further modifications to the advertising. In light of the marketer’s representation that it would “take ERSP’s recommendations into consideration,” ERSP reserved its right to make subsequent compliance inquiries of the marketer regarding this advertising and, accordingly, has made a determination to close this compliance inquiry pursuant to section 4.1(D) of the ERSP Policy and Procedures.

Copyright 2011. Council of Better Business Bureaus, Inc.