The Federal Trade Commission has unanimously upheld its earlier opinion that advertising for Ab Force falsely claimed the belt-like device could help consumers lose weight. "This is a case about firm abs and phony ads," the FTC said.
The decision holds Telebrands Corporation, TV Savings, L.L.C. (TV Savings), and their principal Ajit Khubani, liable for disseminating unsubstantiated and false advertising. Khubani allegedly reaped over $19 million in sales of the Ab Force, despite his admission that the device did not produce results.
The FTC's complaint, originally filed on September 30, 2003, alleged that from December 2001 through at least April 2002, Khubani marketed the Ab Force belt on television, radio, the Internet, and in print, making unsubstantiated claims that the product:
1) causes loss of weight, inches, or fat;
2) creates well-defined abdominal muscles; and
3) is an effective alternative to conventional exercise.
The complaint charged that the respondents claims were unsubstantiated and constituted an unfair or deceptive act or practice and false advertising, in violation of the FTC Act.
On September 24, 2004, Administrative Law Judge Stephen L. McGuire issued an initial decision. Based on his analysis of the ads themselves and other evidence, ALJ McGuire ordered Khubani to stop making the disputed claims for the Ab Force belt or any substantially similar device, and from making any representations that any of the claims made in the ads were true or that using any similar device will lead to weight loss.
Khubani did not deny that the claims were false but denied that their ads communicated the challenged claims. The Commission disagreed.
The Commissions opinion described the elements of the ads the ad copy and, for some media, the visual images that communicated the challenged claims. For example, the respondents television ads the most widely disseminated advertising for the Ab Force showed well-muscled, bare-chested men and trim women in tight-fitting exercise apparel wearing Ab Force belts and experiencing abdominal contractions.
The Commission also rejected Khubani's contention that banning its ads would violate the First Amendment, noting that the First Amendment provides no protection for deceptive commercial speech.
The Commissions order requires Khubani to cease and desist from making any of the false and unsubstantiated statements made in the Ab Force advertisements, bars him and his companies from making similar claims in promoting or marketing the Ab Force or any similar device in the future, and requires that any claims they do make for the Ab Force, any other device or any other food, drug, dietary supplement, device, or other product, service or program be substantiated by competent and reliable evidence.
The scope of this "fencing-in" provision is broader than that ordered by Judge McGuire. The Commission said it considered Khubani's history of alleged law violations as further support for broad injunctive relief.
