California Infomercial Marketer Settles FTC Charges
of False and Unsubstantiated Claims for
Purported Pain-Relieving Device
FTC News Release
May 25, 1993
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, CA; Gisela E. Flick of Cerritos, the former Executive Vice President of Numex; and James L. McElhaney, MD, of Huntington Beach, CA, 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:
- (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 representations. 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 testimonials reflect the typical experience of Therapy Plus users.
The complaints also allege that the infomercial contained false representations, including that scientific proof demonstrates that Therapy Plus is effective in significantly reducing, relieving, or eliminating pain; that Therapy Plus is a major 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 additional 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 extensive 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.
- (Numex) FTC File No. 912-3280 FTC Docket No. C-3463. Decision, 116 FTC 1078.
- (Flick) FTC File No. 912-3280 FTC Docket No. C-3464. Decision, 116 FTC 1078.
- (McElhaney) FTC File No. 912-3280 FTC Docket No. C-3465. Decision, 116 FTC 1078.
This page was posted on August 27, 2006.