• by Ken Liebeskind , May 14, 2002

"I've lost 40 pounds. I've gone from a waist 37 to a waist 34. The AbEnergizer and AbEnergizer system have changed my life."

These words were among many from a 30 minute infomercial for the AbEnergizer that prompted the Federal Trade Commission to take action last week against Electronic Products Distribution, maker of the AbEnergizer and two other companies that make similar products, Hudson Berkley, maker of AbTronic and United Fitness of America, maker of Fast Abs.

The FTC filed suit in federal district courts in California and Nevada against the three companies, charging them with false and deceptive advertising in their infomercials. The 30 minute infomercials ran more than 1650 times between Oct. 2001 and Feb. 22, 2002 on about 35 national cable stations, including USA, TNN, Lifetime, E!, FX and Comedy Central, as well as local broadcast affiliates. They ran on about 900 different stations, according to Sam Catanese, publisher of Infomercial Monitoring Service, who says they were the top three infomercials on the air during that time.

None of the infomercials the FTC found fault with are currently airing, but Claude Wild, the Patton Boggs attorney representing Hudson Berkley, says the infomercials didn't stop because of the FTC action. "No, they stopped playing them before the lawsuit," he says. The infomercials stopped sometime in March before the lawsuit was filed, he says.

Robert Sussman, a trial attorney for the FTC says the agency filed three complaints in two courts alleging false and deceptive practices. "They claim the products cause weight loss, but there's no evidence of that," he says.

The FTC has a long history of action against false infomercial advertisers. A few years ago, the FTC settled claims against four companies selling similar weight loss exercise products in a case it called Project Workout. In another case, former professional baseball player Steve Garvey was sued by the FTC along with others for the Enforma weight loss infomercial. The defendants were forced to pay $10 million in consumer redress.

But Sussman says this case is different. "We usually file suits and go for temporary restraining orders, but now we're giving the companies a chance to work with us instead of going straight to the courts," he says. Of course, the FTC went to court last week, but didn't seek an immediate restraining order. The reason for this may be because the infomercials are no longer running, so "there's no point in a temporary restraining order," Wild says. Still, the FTC says it will work with the companies before taking more stringent action. Its goal is to get them to stop the deceptive advertising and pay refunds to consumers who are dissatisfied with the products. "We are making contact with their attorneys and we'll see how it progresses, but we won't let it stretch out," Sussman says.

"Our goal is to resolve their concerns about the advertising," Wild says. "The complaint is very long with lots of allegations and we disagree with many. We believe it's a legitimate product and want to work with the FTC to address their concerns. We are in discussions at this time."

The Direct Marketing Association, which usually opposes government intervention against direct response advertising, supports the FTC here. "The DMA backs anti fraud efforts, we're totally in favor of it," says Jerry Cerasale, the DMA's senior vice president of government affairs. "Advertising is built on trust and the fraudsters destroy it. The DMA wants heavy enforcement."