Beverly Hills Weight Loss Clinics International, Inc.; Doctors Medical Weight Loss Centers, Inc., et al.; Quick Weight Loss Centers, Inc., et al. (Texas); Quick Weight Loss Centers, Inc., et al. (Georgia); Proposed Consent Agreements With Analysis To Aid Public Comment

Federal RegisterJun 2, 1994

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Text

FEDERAL TRADE COMMISSION

[File Nos. 912 3248; 912 3295; 922 3001; 922 3002]

Beverly Hills Weight Loss Clinics International, Inc.; Doctors

Medical Weight Loss Centers, Inc., et al.; Quick Weight Loss Centers,

Inc., et al. (Texas); Quick Weight Loss Centers, Inc., et al.

(Georgia); Proposed Consent Agreements With Analysis To Aid Public

Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreements.

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SUMMARY: In settlement of alleged violations of federal law prohibiting

unfair acts and practices and unfair methods of competition, the four

consent agreements, accepted subject to final Commission approval,

would prohibit, among other things, four commercial diet program

companies and their officers from misrepresenting the performance or

safety of any diet program they offer in the future, and would require

the respondents to possess competent and reliable scientific evidence

to substantiate any future claims they make about weight loss, weight

loss maintenance, or rate of weight loss; to make a number of

disclosures regarding maintenance success claims; and to disclose all

mandatory fees.

.DATES: Comments must be received on or before August 1, 1994.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,

room 159, 6th Street and Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:Richard Kelly or Eric Bash, FTC/H-200,

Washington, DC 20580. (202) 326-3304 or 326-2892 or Gary Cooper, FTC/

Boston Regional Office, 101 Merrimac St., suite 810, Boston, MA. 02114-

4719. (617) 424-5960.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal

Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and section 2.34 of

the Commission's rules of Practice (16 CFR 2.34), notice is hereby

given that the following consent agreements containing consent orders

to cease and desist, having been filed with and accepted, subject to

final approval, by the Commission, have been placed on the public

record for a period of sixty (60) days. Public comment is invited. Such

comments or views will be considered by the Commission and will be

available for inspection and copying at its principal office in

accordance with section 4.9(b)(6)(ii) of the Commission's Rules of

Practice (16 CFR 4.9(B)(6)(ii)).

In the Matter of Beverly Hills Weight Loss Clinics

International, Inc., a corporation. File No. 912-3248.

Agreement Containing Consent Order To Cease and Desist

The Federal Trade Commission having initiated an investigation of

certain acts and practices of Beverly Hills Weight Loss Clinics

International, Inc., a corporation (``proposed respondent''), and it

now appearing that proposed respondent is willing to enter into an

agreement containing an order to cease and desist from the use of the

acts and practices being investigated,

It Is Hereby Agreed by and between Beverly Hills Weight Loss

Clinics International, Inc., by its duly authorized officers, and its

attorneys, and counsel for the Federal Trade Commission that:

1. Proposed respondent Beverly Hills Hills Weight Loss Clinics

International, Inc. (``Beverly Hills''), is a Virginia corporation,

with its office and principal place of business located at 200

Highpoint Avenue, suite B-5, Portsmouth, Rhode Island 02871.

2. Proposed respondent admits all the jurisdictional facts set

forth in the attached draft complaint.

3. Proposed respondent waives:

(a) Any further procedural steps;

(b) The requirement that the Commission's decision contain a

statement of findings of fact and conclusions of law;

contest the validity of the Order entered pursuant to this agreement;

and

(d) Any claim under the Equal Access to Justice Act, 5 U.S.C. 504.

4. This agreement shall not become part of the public record of the

proceeding unless and until it is accepted by the Commission. If this

agreement is accepted by the Commission, it, together with the attached

draft complaint, will be placed on the public record for a period of

sixty (60) days and information in respect thereto publicly released.

The Commission thereafter may either withdraw its acceptance of this

agreement and so notify the proposed respondent, in which event it will

take such action as it may consider appropriate, or issue and serve its

complaint (in such form as the circumstances may require) and decision,

in disposition of the proceeding.

5. This agreement is for settlement purposes only and does not

constitute an admission by proposed respondent of facts, other than

jurisdictional facts, or of violations of law as alleged in the draft

of complaint here attached.

6. This agreement contemplates that, if it is accepted by the

Commission, and if such acceptance is not subsequently withdrawn by the

Commission pursuant to the provisions of Sec. 2.34 of the Commission's

Rules, the Commission may, without further notice to proposed

respondent: (a) Issue its complaint corresponding in form and substance

with the attached draft complaint and its decision containing the

following order to cease and desist in disposition of the proceeding;

and (b) make information pubic in respect thereto. When so entered, the

order to cease and desist shall have the same force and effect and may

be altered, modified or set aside in the same manner and within the

same time provided by statute for other orders. The order shall become

final upon service. Delivery by the U.S. Postal Service of the

complaint and decision containing the agreed-to order to proposed

respondent's address as stated in this agreement shall constitute

service. Proposed respondent waives any right it may have to any other

manner of service. The complaint may be used in construing the terms of

the order, and no agreement, understanding, representation, or

interpretation not contained in the order or the agreement may be used

to vary or contradict the terms of the order.

7. Proposed respondent has read the attached draft complaint and

the following order. Proposed respondent understands that once the

order has been issued, it was be required to file one or more

compliance reports showing that it has fully complied with the order.

Proposed respondent further understands that it may be liable for civil

penalties in the amount provided by law for each violation of the order

after it becomes final.

Order

Definitions

For the purposes of this Order, the following definitions shall

apply:

A. Competent and reliable scientific evidence shall mean those

tests, analyses, research, studies, or other evidence conducted and

evaluated in an objective manner by persons qualified to do so, using

procedures generally accepted in the relevant profession or science to

yield accurate and reliable results;

B. Weight loss program shall mean any program designed to aid

consumers in weight loss or weight maintenance;

C. A broadcast medium shall mean any radio or television broadcast,

cablecast, home video or theatrical release;

D. For any Order-required disclosure in a print medium to be made

clearly and prominently or in a clear and prominent manner, it must be

given both in the same type style and in: (1) Twelve point type where

the representation that triggers the disclosure is given in twelve

point or large type; or (2) the same type size as the representation

that triggers the disclosure where that representation is given in a

type size that is smaller than twelve point type. For any Order-

required disclosure given orally in a broadcast medium to be made

``clearly and prominently'' or in a ``clear and prominent'' manner, the

disclosure must be given at the same volume and in the same cadence as

the representation that triggers the disclosure.

E. A short broadcast advertisement shall mean any advertisement of

thirty seconds or less duration made in a broadcast medium.

It Is Ordered that respondent, Beverly Hills Weight Loss Clinics

International, Inc., a corporation, its successors and assigns, and its

officers, and respondent's agents, representatives and employees,

directly or through any corporation, subsidiary, division or other

device, including franchisees or licensees, in connection with the

advertising, promotion, offering for sale, or sale of any weight loss

program in or affecting commerce, as ``commerce'' is defined in the

Federal Trade Commission Act, do forthwith cease and desist from:

A. Making any representation, directly or by implication, about the

success of participants on any weight loss program in achieving or

maintaining weight loss or weight control unless, at the time of making

any such representation, respondent possesses and relies upon competent

and reliable scientific evidence substantiating the representation,

provided, further, that for any representation that:

(1) Any weight loss achieved or maintained through the weight loss

program is typical or representative of all or any subset of

participants using the program, said evidence shall, at a minimum, be

based on a representative sample of:

(a) All participants who have entered the program, where the

representation relates to such persons; provided, however, that the

required sample may exclude those participants who dropped out of the

program within two weeks of their entrance, or who were unable to

complete the program due to illness, pregnancy, or change of residence;

(b) All participants who have completed a particular phase of the

program or the entire program, where the representation only relates to

such persons;

(2) Any weight loss is maintained long-term, said evidence shall,

at a minimum, be based upon the experience of participants who were

followed for a period of at least two years from their completion of

the active maintenance of respondent's program or earlier termination,

as applicable; and

(3) Any weight loss is maintained permanently, said evidence shall,

at a minimum, be based upon the experience of participants who were

followed for a period of time after completing the program that is

either:

(a) Generally recognized by experts in the field of treating

obesity as being of sufficient length for predicting that weight loss

will be permanent, or

(b) Demonstrated by competent and reliable survey evidence as being

of sufficient duration to permit such a prediction.

B. Representing, directly or by implication, except through

endorsements or testimonials referred to in paragraph I.E. herein, that

participants of any weight loss program have successfully maintained

weight loss, unless respondent discloses, clearly and prominently, and

in close proximity to such representation, the statement: ``For many

dieters, weight loss is temporary.''; provided further, that respondent

shall not represent, directly or by implication, that the above-quoted

statement does not apply to dieters in respondent's weight loss

program, provided, however, that a mere statement about the existence,

design, or content of a maintenance program shall not, without more, be

considered a representation that participants of any weight loss

program have successfully maintained weight loss.

C. Representing, directly or by implication, except through short

broadcast advertisements referred to in paragraph I.D. herein, and

except through endorsements or testimonials referred to in paragraph

I.E. herein, that participants of any weight loss program have

successfully maintained weight loss, unless respondent discloses,

clearly and prominently, and in close proximity to such representation,

the following information:

(1) The average percentage of weight loss maintained by those

participants;

(2) The duration over which the weight loss was maintained,

measured from the date that participants ended the active weight loss

phase of the program, provided, further, that if any portion of the

time period covered includes participation in a maintenance program(s)

that follows active weight loss, such fact must also be disclosed; and

(3) If the participant population referred to is not representative

of the general participant population for respondent's programs:

(a) The proportion of the total participant population in

respondent's programs that those participants represent, expressed in

terms of a percentage or actual numbers of participants, or

(b) The statement: ``Beverly Hills makes no claim that this [these]

result[s] is [are] representative of all participants in the Beverly

Hills program.'';

Provided, further, that compliance with the obligations of this

paragraph I.C. in no way relieves respondent of the requirement under

paragraph I.A. of this Order to substantiate any representation about

the success of participants on any weight loss program in maintaining

weight loss.

D. Representing, directly or by implication, in short broadcast

advertisements, that participants of any weight loss program have

successfully maintained weight loss, unless respondent:

(1) Includes, clearly and prominently, and in immediate conjunction

with such representation, the statement: ``Check at our clinics for

details about our maintenance record.'';

(2) For a period of time beginning with the date of the first

broadcast of any such advertisement and ending no sooner than thirty

days after the last broadcast of such advertisement, complies with the

following procedures upon the first presentation of any form asking for

information from a potential client, but in any event before such

person has entered into any agreement with respondent:

(a) Give to each potential client a separate document entitled

``Maintenance Information,'' which shall include all the information

required by paragraph I.B. and subparagraphs I.C.(1)-(3) of this order

and shall be formatted in the exact type size and style as the example

form below, and shall include the heading (Helvetica 14 pt. bold),

lead-in (Times Roman 12 pt.), disclosures (Helvetica 14 pt. bold),

acknowledgment language (Times Roman 12 pt.) and signature block

therein; provided, further, that no information in addition to that

required to be included in the document required by this subparagraph

I.D.(2) shall be included therein:

Maintenance Information

You may have seen our recent ad about maintenance success. Here's

some additional information about our maintenance record.

[Disclosure of maintenance statistics goes here

For many dieters, weight loss is temporary.

I have read this notice.

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(Client Signature) (Date)

(b) require each potential client to sign such document; and

Provided, however, that if any potential participant who does not

then participate in the program refuses to sign or accept a copy of

such document, respondent shall so indicate on such document and shall

not, for that reason alone, be found in breach of this subparagraph

I.D.(2); and

(3) retain in each client file a copy of the signed maintenance

notice required by this paragraph;

Provided, further, that:

(i) Compliance with the obligations of this paragraph I.D. in no

way relieves respondent of the requirement under paragraph I.A. of this

Order to substantiate any representation about the success of

participants on any weight loss program in maintaining weight loss; and

(ii) respondent must comply with both paragraph I.D. and paragraph

I.C. of this Order if respondent includes in any such short broadcast

advertisement a representation about maintenance success that states a

number or percentage, or uses descriptive terms that convey a

quantitative measure such as ``most of our customers maintain their

weight loss long-term''; and provided, however, that the provisions of

paragraph I.D. shall not apply to endorsements or testimonials referred

to in paragraph I.E. herein.

E. Using any advertisement containing an endorsement or testimonial

about weight loss success or weight loss maintenance success by a

participant or participants of respondent's weight loss programs if the

weight loss success or weight loss maintenance success depicted in the

advertisement is not representative of what participants in

respondent's weight loss programs generally achieve, unless respondent

discloses, clearly and prominently, and in close proximity to the

endorser's statement of his or her weight loss success or weight loss

maintenance success:

(1) what the generally expected success would be for Beverly Hills

customers in losing weight or maintaining achieved weight loss;

provided, however, that in determining the generally expected success

for Beverly Hills customers respondent may exclude those customers who

dropped out of the program within two weeks of their entrance or who

were unable to complete the program due to illness, pregnancy, or

change of residence; or

(2) one of the following statements:

(a) ``You should not expect to experience these results.''

(b) ``This result is not typical. You may not do as well.''

(d) ``________'s success is not typical. You may not do as well.''

(e) ``________'s experience is not typical. You may achieve less.''

(f) ``Results not typical.''

(g) ``Results not typical of program participants.'';

Provided, further, that if the endorsements or testimonials covered

by this paragraph are made in a broadcast medium, any disclosure

required by this paragraph must be communicated in a clear and

prominent manner and in immediate conjunction with the representation

that triggers the disclosure; and provided, however, that:

(i) For endorsements or testimonials about weight loss success,

respondent can satisfy the requirements of subparagraph I.E. (1) by

accurately disclosing the generally expected success in the following

phrase: ``Beverly Hills clients lose an average of ________ pounds over

an average ________--week treatment period''; and

(ii) If the weight loss success or weight loss maintenance success

depicted in the advertisement is representative of what participants of

a group or subset clearly defined in the advertisement generally

achieve, then, in lieu of the disclosures required in either

subparagraph I.E. (1) or (2) herein, respondent may substitute a clear

and prominent disclosure of the percentage of all of respondent's

customers that the group or subset defined in the advertisement

represents.

F. Representing, directly or by implication, that the price at

which any weight loss program can be purchased is the only cost

associated with losing weight on that program, unless such is the case.

G. Representing, directly or by implication, the price at which any

weight loss program can be purchased, unless respondent discloses,

clearly and prominently, either:

(1) In close proximity to such representation, the existence and

amount of all mandatory costs or fees associated with the program

offered; or

(2) in immediate conjunction with such representation, one of the

following statements:

(a) ``Plus the cost of [list of products or services that

participants must purchase at additional cost].''

(b) ``Purchase of [list of products or services that participants

must purchase at additional cost] required.'';

Provided, further, that in broadcast media, if the representation

that triggers any disclosure required by this paragraph is oral, the

required disclosure must also be made orally.

H. Representing, directly or by implication, that any weight loss

program or services can be obtained for free, unless respondent

discloses, clearly and prominently, either (1) in close proximity to

such representation, the existence and amount of all mandatory fees

associated with the free offer; or (2) in immediate conjunction with

such representation, the following statement: ``You must pay for [list

of products or services that participants must purchase at additional

cost] to take advantage of this free offer.''; provided, further, that

in broadcast media, if the representation that triggers the disclosure

is oral, the disclosure required by either (1) or (2) of this paragraph

must also be made orally.

I. Failing to disclose over the telephone, for a period of time

beginning with the date of any advertisement of the price at which any

weight loss program can be purchased and ending no sooner that 180 days

after the last dissemination of any such advertisement, to consumers

who inquire about the cost of any weight loss program or are told about

the cost of any weight loss program, the existence and amount of any

mandatory costs or fees associated with participation in the program;

provided, however, that respondent may satisfy this requirement by

directing its weight loss centers to disclose the information, by

providing the center personnel with suggested language to be used when

responding to telephone inquiries and by making its best efforts to

ensure compliance with its directive to disclose price information over

the telephone.

J. Representing, directly or by implication, the average or typical

rate or speed at which participants or prospective participants in any

weight loss program have lost or will lose weight, unless at the time

of making such representation, respondent possesses and relies upon

competent and reliable scientific evidence substantiating the

representation.

K. Representing, directly or by implication, that participants or

prospective participants in respondent's weight loss programs have

reached or will reach a specified weight within a specified time

period, unless at the time of making such representation, respondent

possesses and relies upon competent and reliable scientific evidence

substantiating the representation.

L. Making comparisons between the efficacy of respondent's weight

loss program(s) and the efficacy of any other weight loss and/or diet

program(s), unless at the time of making such representation,

respondent possesses and relies upon a competent and reliable

scientific study or survey substantiating the representation.

M. Making comparisons between the safety of respondent's weight

loss program(s) and the safety of any other weight loss and/or diet

program(s), unless at the time of making such representation,

respondent possesses and relies upon competent and reliable scientific

evidence substantiating the representation.

N. Failing to disclose, clearly and prominently, either (1) to each

participant who, after the first two weeks on the program, is

experiencing average weekly weight loss that exceeds two percent (2%)

of said participant's initial body weight, or three pounds, whichever

is less, for at least two consecutive weeks, or (2) in writing to all

participants, when they enter the program, that failure to follow the

diet instructions and consume the total caloric intake recommended may

involve the risk of developing serious health complications.

O. Misrepresenting, directly or by implication, the existence,

contents, validity, results, conclusions, or interpretations of any

test or study.

P. Misrepresenting, directly or by implication, the performance,

efficacy, or safety of any weight loss program or weight loss product.

It is further ordered that respondent shall notify the Commission

at least thirty (30) days prior to the effective date of any proposed

change in the corporate respondent such as dissolution, assignment, or

sale resulting in the emergence of a successor corporation(s), the

creation or dissolution of subsidiaries, or any other change in the

corporation that may affect compliance obligations arising out of this

Order.

III

It is further ordered that for three (3) years after the last date

of dissemination of any representation covered by this Order,

respondent, or its successors and assigns, shall maintain and upon

request make available to the Federal Trade Commission for inspection

and copying:

A. All materials that were relied upon in disseminating such

representation; and

B. All tests, reports, studies, surveys, demonstrations or other

evidence in its possession or control that contradict, qualify, or call

into question such representation, or the basis relied upon for such

representation, including complaints from consumers.

It is further ordered that respondent shall distribute a copy of

this Order to each of its officers, agents, representatives,

independent contractors and employees, who is involved in the

preparation and placement of advertisements or promotional materials or

in communication with customers or prospective customers or who have

any responsibilities with respect to the subject matter of this Order;

and, for a period of five (5) years from the date of entry of this

Order, distribute same to all future such officers, agents,

representatives, independent contractors and employees.

It is further ordered that:

A. Respondent shall distribute a copy of this Order to each of its

franchisees and licensees and shall contractually bind them to comply

with the prohibitions and affirmative requirements of this Order;

respondent may satisfy this contractual requirement by incorporating

such Order requirements into its current Operations Manual; and

B. Respondent shall further make reasonable efforts to monitor its

franchisees' and licensees' compliance with the Order provisions;

respondent may satisfy this requirement by: (1) Taking reasonable steps

to notify promptly any franchisee or licensee that respondent

determines is failing materially or repeatedly to comply with any other

provision; (2) providing the Federal Trade Commission with the name and

address of the franchisee or licensee and the nature of the

noncompliance if the franchisee or licensee fails to comply promptly

with the relevant Order provision after being so notified; and (3) in

cases where that franchisee's or licensee's conduct constitutes a

material or repeated violation of the order, diligently pursuing

reasonable and appropriate remedies available under its favorable or

license agreement and applicable state law to bring about a cessation

of that conduct by the franchisee or licensee.

It is further ordered that respondent shall, within sixty (60) days

after the date of service of this Order, file with the Commission a

report, in writing, setting forth in detail the manner and form in

which it has complied with this Order.

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission has accepted an agreement to a

proposed consent order from Beverly Hills Weight Loss Clinics

International, Inc., (hereinafter ``Beverly Hills''), marketer of the

Beverly Hills low-calorie diet (hereinafter ``LCD'') program. The

Beverly Hills diet program is offered to the public in the eastern

United States through company-owned and franchised clinics.

The proposed consent order has been placed on the public record for

sixty (60) days for the reception of comments by interested persons.

Comments received during this period will become part of the public

record. After sixty (60) days, the Commission will again review the

agreement and will decide whether it should withdraw from the agreement

or make final the agreement's proposed order.

The Commission's complaint charges that the proposed respondent

deceptively advertised: (1) Its LCD program's success in helping

customers achieve and maintain weight loss; (2) the typical rate or

speed at which customers will lose weight; (3) the time frame within

which customers will achieve their desired weight loss goal; (4) the

safety of the Beverly Hills program in comparison to other weight loss

programs; (5) the purchase price of the Beverly Hills program; and (6)

the terms of the company's offers of free weight loss services. The

complaint further alleges that Beverly Hills engaged in the deceptive

practice of failing to warn clients it monitors of the health

importance of following the diet instructions.

Success

The complaint against Beverly Hills alleges that the company failed

to possess a reasonable basis for claims it made regarding the success

of its customers in losing weight and avoiding the regain of weight

lost during the program. Through consumer testimonials and other

advertisements, Beverly Hills represented that its customers typically

are successful in reaching their weight loss goals and in maintaining

their weight loss achieved under the Beverly Hills diet program either

long-term or permanently.

The Commission believes that these success claims for customer

weight loss and maintenance of achieved weight loss are deceptive

because at the time it made the claims Beverly Hills did not possess

adequate substantiation for those claims.

The proposed consent order seeks to address the alleged success

misrepresentations cited in the accompanying complaint in several ways.

First, the order (part I.A.) requires the company to possess a

reasonable basis consisting of competent and reliable scientific

evidence substantiating any claim about the success of participants on

any diet program in achieving or maintaining weight loss. To ensure

compliance, the order further specifies what this level of evidence

shall consist of when certain types of success claims are made:

(1) In the case of claims that weight loss is typical or

representative of all participants using the program or any subset of

those participants, that evidence shall be based on a representative

sample of: (a) All participants who have entered the program, where the

representation relates to such persons; or (b) all participants who

have completed a particular phase of the program or the entire program,

where the representation only relates to such persons.

(2) In the case of claims that any weight loss is maintained long-

term, that evidence shall be based upon the evidence of participants

who were followed for a period of at least two years after their

completion of the respondent's program, including any periods of

participation in respondent's maintenance program.

(3) In the case of claims that weight loss is maintained

permanently, that evidence shall be based upon the experience of

participants who were followed for a period of time after completing

the program that is either: (a) Generally recognized by experts in the

field of treating obesity as being of sufficient length to constitute a

reasonable basis for predicting that weight loss will be permanent; or

(b) demonstrated by competent and reliable survey evidence as being of

sufficient duration to permit such a prediction.

Second, as measures to ensure future compliance, the proposed order

requires the proposed respondent for any claim that participants of any

diet program have successfully maintained weight loss to disclose the

fact that ``For many dieters, weight loss is temporary'' (part I.B.),

as well as the following information relating to that claim (part

I.C.):

(1)The average percentage of weight loss maintained by those

participants (e.g., ``60% of achieved weight loss was maintained''),

(2) the duration over which the weight loss was maintained,

measured from the date that participants ended the active weight loss

phase of the program, and the fact that all or a portion of the time

period covered includes participation in proposed respondent's

maintenance program(s) that follows active weight loss, if that is the

case--e.g., ``participants maintain an average of 60% of weight loss 22

months after active weight loss (includes 18 months on maintenance

program)'', and

(3) where the participant population referred to is not

representative of the general participant population for that program,

the proportion of the total participant population that those

participants represent, expressed in terms of a percentage or actual

numbers of participants--e.g. ``Participants on maintenance--30% of our

clients--kept off an average of 66% of the weight for one year

(includes time on maintenance program)'' or, in lieu of that factual

disclosure, the statement: ``Beverly Hills makes no claim that this

result is representative of all participants in the Beverly Hills

program.''

Third, for maintenance success claims made in broadcast

advertisements of thirty seconds or less duration, the proposed order

(part I.D.) requires that Beverly Hills, in lieu of making the factual

disclosures required for such claims by Part I.C: (1) Include in such

advertisements the statement ``Check at our centers for details about

our maintenance record.''; and (2) provide consumers at point-of-sale

with a required form that includes the factual disclosures required by

Part I.C., which form must be signed by the client and retained in the

company's client file.

The proposed order makes clear that this alternative disclosure

requirement does not relieve Beverly Hills of the obligation to

substantiate any maintenance success claim, in accordance with part

I.A. of the order, and it ``takes back'' the exception from full

quantitative disclosures in short broadcast advertising if Beverly

Hills makes a maintenance success claim that uses numbers or

descriptive terms that convey a quantitative measure, such as ``most of

our customers maintain their weight loss long term.'' Beverly Hills in

that case would have to make all the required disclosures in the ad and

provide the disclosures at point-of-sale.

Fourth, for weight-loss and weight-loss maintenance success claims

made through endorsements or testimonials that are not representative

of what Beverly Hills idet program participants generally achieve, the

order (part I.E.) requires that Beverly Hills disclosure either what

the generally expected success would be for Beverly Hills customers, or

one of several alternative statements, such as ``This result is not

typical. You may be less successful'', which explains the limited

applicability of atypical testimonials in accordance with the

Commission's ``Guides Concerning Use of Endorsements and Testimonials

in Advertising'' 16 CFR 255.2(a). Under the proposed order, Beverly

Hills may satisfy the requirements of the first disclosure concerning

generally expected success by accurately disclosing those facts in the

following format: ``Beverly Hills clients lose an average of ____

pounds over an average ____-week treatment period.''

Finally, the proposed order (part I.P.) generally prohibits the

company from misrepresenting the performance or efficacy of any weight

loss program.

Rate of Weight Loss

The Commission's complaint further alleges that Beverly Hills

failed to possess a reasonable basis for claims it made concerning the

average rate of weight loss for participants in its program. The

proposed consent order addresses this practice (part I.J.) by

prohibiting Beverly Hills from representing that participants in its

programs will lose weight at an average or typical rate or speed,

unless Beverly Hills possesses and relies upon competent and reliable

scientific evidence substantiating the representation.

Projection of Weight Loss

The Commission's complaint further alleges that Beverly Hills

failed to possess a reasonable basis for its claim made during initial

sales presentations that consumers will typically reach their desired

weight-loss goal within the time frame computed by Beverly Hills

personnel. To address this practice, the proposed order (part I.K.)

prohibits Beverly Hills from representing that participants or

prospective participants will reach a specified weight within a

specified period of time, unless proposed respondent possesses and

relies upon competent and reliable scientific evidence substantiating

the representation.

Comparative Safety Claim

The Commission's complaint further alleges that Beverly Hills

failed to possess a reasonable basis for its claim that its weight loss

programs are safer than other weight loss programs that do not include

essential fatty acid supplementation. The proposed order seeks to

address this practice in two ways. First, part I.M. requires the

company to have competent and reliable scientific evidence

substantiating any claim that compares the safety of its weight loss

program with that of any other weight loss or diet program. Second,

part I.P. of the proposed order prohibits the company from

misrepresenting, among other things, the safety of any weight loss

program or weight loss product.

Monitoring Practices

According to the complaint, Beverly Hills provides its customers

with diet instructions that require the customers to come in to one of

the proposed respondent's centers three times a week for monitoring of

their progress, including weighing in. In the course of regularly

ascertaining weight loss progress, respondent, in some instances, is

presenting with weight loss results indicating that customers are

losing weight significantly in excess of their projected goals, which

is an indication that they may not be consuming all of the food

prescribed by their diet instructions. According to the complaint, such

conduct could, if not corrected promptly, result in health

complications. In light of this monitoring practice, the Commission's

complaint alleges that Beverly Hills has failed to disclose to

consumers who are losing weight significantly in excess of their

projected goals that failing to follow the diet instructions and

consume all of the food prescribed could result in health

complications.

The proposed consent order seeks to address the alleged monitoring

misrepresentation cited in the accompanying complaint in two ways.

First, the order (part I.N.) requires Beverly Hills to disclose in

writing to all participants when they enter the program, that failure

to follow the program instructions and eat all of the food recommended

may involve the risk of developing serious health complications.

Second, the proposed order (part I.P.) generally prohibits any

misrepresentation concerning the safety of any weight loss program.

Price

The Commission's complaint against Beverly Hills also alleges that

the company falsely represented that the price it advertised far its

diet program is the only cost associated with losing weight on the diet

program, when, in fact, there are substantial additional mandatory

expenses that far exceed the advertised price. The complaint further

alleges that Beverly Hills failed to disclose adequately to consumers

the existence and amount of all mandatory expenses associated with

participation in the diet program.

The proposed consent order seeks to address these practices in

three ways. First, part I.F. of the proposed order prohibits untrue

representations that an advertised price for a weight loss program is

the only cost associated with losing weight on that program. Second,

for any advertisement containing a price at which any weight loss

program can be purchased, the proposed order (part I.G.) requires

Beverly Hills to disclose either the existence and amount of all

mandatory costs or fees associated with the program offered or a

statement identifying a list of all products or services that

participants must purchase at an additional cost. This disclosure must

be made orally under the proposed order if the price representation is

made orally under the proposed order if the free offer is made orally

in broadcast media.

Finally, the proposed order (part I.I.) requires the proposed

respondent to disclose over the telephone to callers who inquire or are

told about the cost of any weight loss program, the existence and

amount of any mandatory costs or fees associated with participation in

the program. Under the order, Beverly Hills can satisfy this

requirement by: (1) Providing the center personnel with suggested

language to be used when responding to telephone inquiries; and (2)

making its best efforts to ensure compliance with its directive to

disclose price information over the telephone.

Fee Offers

The Commission's complaint also alleges that, through offers of

free weight loss services, Beverly Hills falsely represented that its

weight loss programs were being offered to consumers at no cost. The

complaint further alleges that the company failed to disclose

adequately to consumers that the receipt of free weight loss services

is contingent upon the purchase, at substantial expense to the

consumer, of other goods or services that are mandatory for

participation in the company's weight loss programs.

The proposed consent order (part I.H.) seeks to address this

practice by requiring that the company disclose either (1) the

existence and amount of all mandatory fees associated with the free

offer, or (2) a list of all products or services that participants must

purchase at an additional cost to take advantage of the free offer.

This disclosure must be made orally under the proposed order if the

free offer is made orally in broadcast media.

The purpose of this analysis is to facilitate public comment on the

proposed order, and it is not intended to constitute an official

interpretation of the agreement and proposed order, or to modify in any

way their terms.

In the matter of Doctors Medical Weight Loss Centers, Inc., a

corporation, Doctors Weight Loss Centers, Inc., a corporation, and

Joyce A. Schuman, individually and as an officer of said

corporation. File No. 912 3295.

Agreement Containing Consent Order To Cease and Desist

The Federal Trade Commission having initiated an investigation of

certain acts and practices of Doctors Medical Weight Loss Centers, Inc.

(``DMWLC''), a corporation, Doctors Weight Loss Centers, Inc.

(``DWLC''), a corporation, and Joyce A. Schuman, individually and as an

officer of said corporations, and it now appearing, that DMWLC, a

corporation, DWLC, a corporation, and Joyce A. Schuman, individually

and as an officer of said corporation (hereinafter, collectively,

``proposed respondents'' or ``respondents''), are willing to enter into

an agreement containing an order to cease and desist from the use of

the acts and practices being investigated.

It is hereby agreed by and between DMWLC and DWLC, by their duly

authorized officers, Joyce A. Schuman, and counsel for the Federal

Trade Commission, that:

1. Proposed respondents DMWLC and DWLC are corporations organized,

existing and formerly doing business under and by virtue of the laws of

the State of Florida, with their offices and principal place of

business located at 5479 A North Federal Highway, Fort Lauderdale,

Florida 33309.

2. Proposed respondent Joyce A. Schuman is an individual with her

principal residence located at 2730 Sea Island Drive, Fort Lauderdale,

Florida 33301.

3. Proposed respondents admit all the jurisdictional facts set

forth in the attached draft complaint.

4. Proposed respondents waive:

(a) Any further procedural steps;

(b) The requirement that the Commission's decision contain a

statement of findings of fact and conclusions of law;

contest the validity of the Order entered pursuant to this agreement;

and

(d) Any claim under the Equal Access to Justice Act, 5 U.S.C. 504.

5. This agreement shall not become part of the public record of the

proceeding unless and until it is accepted by the Commission. If this

agreement is accepted by the Commission, it, together with the attached

draft complaint, will be placed on the public record for a period of

sixty (60) days and information in respect thereto publicly released.

The Commission thereafter may either withdraw its acceptance of this

agreement and so notify the proposed respondents, in which event it

will take such action as it may consider appropriate, or issue and

serve its complaint (in such form as the circumstances may require) and

decision, in disposition of the proceeding.

6. This agreement is for settlement purposes only and does not

constitute an admission by proposed respondents of facts, other than

jurisdictional facts, or of violations of law as alleged in the draft

of complaint here attached.

7. This agreement contemplates that, if it is accepted by the

Commission, and if such acceptance is not subsequently withdrawn by the

Commission pursuant to the provisions of Sec. 2.34 of the Commission's

Rules, the Commission may, without further notice to proposed

respondents: (a) Issue its complaint corresponding in form and

substance with the attached draft complaint and its decision containing

the following Order to cease and desist in disposition of the

proceeding; and (b) make information public in respect thereto. When so

entered, the Order to cease and desist shall have the same force and

effect and may be altered, modified or set aside in the same manner and

within the same time provided by statute for other orders. The Order

shall become final upon service. Delivery by the U.S. Postal Service of

the complaint and decision containing the agreed-to Order to proposed

respondents' addresses as stated in this agreement shall constitute

service. Proposed respondents waive any right they may have to any to

any other manner of service. The complaint may be used in construing

the terms of the Order, and no agreement, understanding,

representation, or interpretation not contained in the Order or the

agreement may be used to vary or contradict the terms of the Order.

8. Proposed respondents have read the attached draft complaint and

the following Order. Proposed respondents understand that once the

Order has been issued, they will be required to file one or more

compliance reports showing that they have fully complied with the

Order. Proposed respondents further understand that they may be liable

for civil penalties in the amount provided by law for each violation of

the Order after it becomes final.

Order

Definitions

For the purposes of this Order, the following definitions shall

apply:

A. Competent and reliable scientific evidence shall mean those

tests, analyses, research, studies, or other evidence based on the

expertise of professionals in the relevant area, that have been

conducted and evaluated in an objective manner by persons qualified to

do so, using procedures generally accepted in the profession to yield

accurate and reliable results;

B. Weight loss program shall mean any program designed to aid

consumers in weight loss or weight maintenance;

C. A broadcast medium shall mean any radio or television broadcast,

cablecast, home video, or theatrical release;

D. For any Order-required disclosure in print media to be made

clearly and prominently, or in a clear and prominent manner, it must be

given both in the same type style and in: (1) Twelve point type where

the representation that triggers and disclosure is given in twelve

point or larger type; or (2) the same type size as the representation

that triggers the disclosure where that representation is given in a

type size that is smaller than twelve point type. For any Order-

required disclosure given orally in a broadcast medium to be made

``clearly and prominently,'' or in a ``clear and prominent manner,''

the disclosure must be given at the same volume and in the same cadence

as the representation that triggers the disclosure;

E. A short broadcast advertisement shall mean any advertisement of

thirty seconds or less duration made in a broadcast medium.

It is ordered that respondents DMWLC, a corporation, DWLC, a

corporation, their successors and assigns, and their officers, and

Joyce A. Schuman, individually and as an officer of said corporations,

and respondents' agents, representatives, and employees, directly or

through any corporation, subsidiary, division, or other device, in

connection with the advertising, promotion, offering for sale, or sale

of any weight loss program, in or affecting commerce, as ``commerce''

is defined in the Federal Trade Commission Act, do forthwith cease and

desist from:

A. Making any representation, directly or by implication, about the

success of participants on any weight loss program in achieving or

maintaining weight loss or weight control unless, at the time of making

any such representation, respondents possess and rely upon competent

and reliable scientific evidence substantiating the representation,

provided, further, that for any representation that:

(1) Any weight loss achieved or maintained through the weight loss

program is typical or representative of all or any subset of

participants of respondents' program, said evidence shall, at a

minimum, be based on a representative sample of:

(a) All participants who have entered the program, where the

representation relates to such persons; provided, however, that the

required sample may exclude those participants who dropped out of the

program within two weeks of their entrance, or who were unable to

complete the program due to illness, pregnancy, or change of residence;

(b) All participants who have completed a particular phase of the

program or the entire program, where the representation only relates to

such persons;

(2) Any weight loss is maintained long-term, said evidence shall,

at a minimum, be based upon the experience of participants who were

followed for a period of at least two years from their completion of

the active maintenance phase of respondents' program or earlier

termination, as applicable; and

(3) Any weight loss is maintained permanently, said evidence shall,

at a minimum, be based upon the experience of participants who were

followed for a period of time after completing the program that is

either:

(a) Generally recognized by experts in the field of treating

obesity as being of sufficient length for predicting that weight loss

will be permanent, or

(b) Demonstrated by competent and reliable survey evidence as being

of sufficient duration to permit such a prediction.

B. Representing, directly or by implication, except through

endorsements or testimonials referred to in paragraph I.E. herein, that

participants of any weight loss program have successfully maintained

weight loss, unless respondents disclose, clearly and prominently, and

in close proximity to such representation, the statement: ``For many

dieters, weight loss is temporary''; provided, further, that

respondents shall not represent, directly or by implication, that the

above-quoted statement does not apply to dieters in respondents' weight

loss program; provided, however, that a mere statement about the

existence, design, or content of a maintenance program shall not,

without more, be considered a representation that participants of any

weight loss program have successfully maintained weight loss.

C. Representing, directly or by implication, except through short

broadcast advertisements referred to in paragraph I.D. herein, and

except through endorsements or testimonials referred to in paragraph

I.E. herein, that participants on any weight loss program have

successfully maintained weight loss, unless respondents disclose,

clearly and prominently, and in close proximity to such representation,

the following information:

(1) The average percentage of weight loss maintained by those

participants;

(2) The duration over which the weight loss was maintained,

measured from the date that participants ended the active weight loss

phase of the program, provided, further, that if any portion of the

time period covered includes participation in a maintenance program(s)

that follows active weight loss, such fact must also be disclosed; and

(3) if the participant population referred to is not representative

of the general participant population for respondents' programs:

(a) The proportion of the total participant population in

respondents' programs that those participants represent, expressed in

terms of a percentage or actual numbers of participants, or

(b) The statement: ``[Doctors Medical Weight Loss Centers/Doctors

Weight Loss Centers] makes no claim that this [these] result[s] is

[are] representative of all participants in the [Doctors Medical Weight

Loss Centers/Doctors Weight Loss Centers] program.'' provided, further,

that compliance with the obligations of this paragraph I.C. in no way

relieves respondents of the requirement under paragraph I.A. of this

Order to substantiate any representation about the success of

participants on any weight loss program in maintaining weight loss.

D. Representing, directly or by implication, in short broadcast

advertisements, that participants of any weight loss program have

successfully maintained weight loss, unless respondents:

(1) Include, clearly and prominently, and in immediate conjunction

with such representation, the statement: ``Check at our centers for

details about our maintenance record'';

(2) For a period of time beginning with the date of the first

broadcast of any such advertisement and ending no sooner than thirty

days after the last broadcast of such advertisement, comply with the

following procedures upon the first presentation of any form asking for

information from a potential client, but in any event before such

person has entered into any agreement with respondents:

(a) Give to each potential client a separate document entitled

``Maintenance Information,'' which shall include all the information

required by paragraph I.B. and subparagraphs I.C. (1)-(3) of this Order

and shall be formatted in the exact type size and style as the example

form below, and shall include the heading (Helvetica 14 point bold,

lead-in (Times Roman 12 point), disclosures (Helvetica 14 point bold),

acknowledgment language (Times Roman 12 point), and signature block

therein; provided, further, that no information in addition to that

required to be included in the document required by this subparagraph

I.D. (2) shall be included therein;

Maintenance Information

You may have seen our recent ad about maintenance success. Here's

some additional information about our maintenance record.

[Disclosure of maintenance statistics goes here] For many dieters,

weight loss is temporary.

I have read this notice.

----------------------------------------------------------------------

(Client Signature) (Date)

(b) Require each potential client to sign such document; and

(3) Retain in each client file a copy of the signed maintenance

notice required by this paragraph;

provided, further, that:

(i) Compliance with the obligations of this paragraph I.D. in no

way relieves respondents of the requirement under paragraph I.A. of

this Order to substantiate any representation about the success of

participants on any weight loss program in maintaining weight loss;

(ii) Respondents must comply with both paragraph I.D. and paragraph

I.C. of this Order if respondents include in any such short broadcast

advertisement a representation about maintenance success that states a

number or percentage, or uses descriptive terms that convey a

quantitative measure such as ``most of our customers maintain their

weight loss long-term'';

provided, however, that the provisions of paragraph I.D. shall not

apply to endorsements or testimonials referred to in paragraph I.E.

herein.

E. Using any advertisement containing an endorsement or testimonial

about weight loss success or weight loss maintenance success by a

participant or participants of respondents' weight loss programs if the

weight loss success or weight loss maintenance success depicted in the

advertisement is not representative of what participants of

respondents' weight loss programs generally achieve, unless respondents

disclose, clearly and prominently, and in close proximity to the

endorser's statement of his or her weight loss success or weight loss

maintenance success:

(1) What the generally expected success would be for DMWLC/DWLC

customers in losing weight or maintaining achieved weight loss;

provided, however, that the generally expected success for DMWLC/DWLC

customers may exclude those customers who dropped out of the program

within two weeks of their entrance, or who were unable to complete the

program due to illness, pregnancy, or change of residence; or

(2) One of the following statements:

(a) ``You should not expect to experience these results.''

(b) ``This result is not typical. You may not do as well.''

(d) ``________'s success is not typical. You may not do as well.''

(e) ``________'s experience is not typical. You may achieve less.''

(f) ``Results not typical.''

(g) ``Results not typical of program participants.''

provided, further, that if the endorsements or testimonials covered by

this paragraph are made in a broadcast medium, any disclosure required

by this paragraph must be communicated in a clear and prominent manner,

and in immediate conjunction with the representation that triggers the

disclosure;

provided, however, that:

(i) For endorsements or testimonials about weight loss success,

respondents can satisfy the requirements of subparagraph I.E. (1) by

accurately disclosing the generally expected success in the following

phrase: ``Doctors Medical Weight Loss Centers, Inc./Doctors Weight Loss

Centers, Inc. participants lose an average of ________ pounds over an

average ________-week treatment period''; and

(ii) If the weight loss success or weight loss maintenance success

depicted in the advertisement is representative of what participants of

a group or subset clearly defined in the advertisement generally

achieve, then, in lieu of the disclosures required in either

subparagraphs I.E. (1) or (2) herein, respondents may substitute a

clear and prominent disclosure of the percentage of all of respondents'

customers that the group or subset defined in the advertisement

represents.

F. Representing, directly or by implication, that the price at

which any weight loss program can be purchased is the only cost

associated with losing weight on that program, unless such is the case.

G. Representing, directly or by implication, the price at which any

weight loss program can be purchased, unless respondents disclose,

clearly and prominently, either:

(1) In close proximity to such representation, the existence and

amount of all mandatory fees associated with the program offered; or

(2) In immediate conjunction with such representation, one of the

following statements:

(a) ``Plus the cost of [list of products or services that

participants must purchase at additional cost]''; or

(b) ``Purchase of [list of products or services that participants

must purchase at additional cost] required'';

provided, further, that in broadcast media, if the representation that

triggers any disclosure required by this paragraph is oral, the

required disclosure must also be made orally.

H. Failing to disclose over the telephone, for a period beginning

with the date of any advertisement of the price at which any weight

loss program can be purchased and ending no sooner than 180 days after

the last dissemination of such advertisement, to consumers who inquire

about the cost of any weight loss program, or are told about the cost

of any weight loss program, the existence and amount of any and all

mandatory costs or fees associated with participation in the program;

provided, however, that respondents may satisfy this requirement by

directing their weight loss centers to disclose the information, by

providing the center personnel with suggested language to be used when

responding to phone inquiries and by making their best efforts to

ensure compliance with their directive to disclose price information

over the telephone.

I. Representing, directly or by implication, that prospective

participants in respondents' weight loss programs will reach a

specified weight within a specified time period, unless at the time of

making such representation, respondents possess and rely upon competent

and reliable scientific evidence substantiating the representation.

J. Representing, directly or by implication, the average or typical

rate or speed at which any participant on any weight loss program has

lost or will lose weight, unless at the time of making any such

representation, respondents possess and rely upon competent and

reliable scientific evidence that substantiates the representation.

K. Failing to disclose, clearly and prominently, either (1) to each

participant who, after the first two weeks on the program, is

experiencing average weekly weight loss that exceeds two percent (2%)

of said participant's initial body weight, or three pounds, whichever

is less, for at least two consecutive weeks, or (2) in writing to all

participants when they enter the program, that failure to follow the

program protocol and eat all of the food recommended may involve the

risk of developing serious health complications.

L. Misrepresenting, directly or by implication, the performance,

efficacy, or safety of any weight loss program.

It is further ordered that respondents shall notify the Commission

at least thirty (30) days prior to the effective date of any proposed

change in the corporate respondents such as dissolution, assignment, or

sale resulting in the emergence of a successor corporation(s), the

creation or dissolution of subsidiaries, or any other change in the

corporation(s) that may affect compliance obligations arising out of

this Order.

III

It is further ordered that respondent Joyce A. Schuman shall

promptly notify the Commission of the discontinuance of her present

business or employment and of her affiliation with a new business or

employment. In addition, for a period of three (3) years from the

service date of this Order, the individual respondent shall promptly

notify the Commission of each affiliation with a new business or

employment whose activities relate to the advertising, promotion,

offering for sale, or sale of any weight loss program. When so required

under this paragraph, each such notice shall include the individual

respondent's new business address and a statement of the nature of the

business or employment in which the individual respondent is newly

engaged, as well as a description of the individual respondent's duties

and responsibilities in connection with the business or employment. The

expiration of the notice provision of this paragraph shall not affect

any other obligation arising under this Order.

It is further ordered that for three (3) years after the last date

of dissemination of any representation covered by this Order,

respondents, or their successors and assigns, shall maintain and upon

request make available to the Federal Trade Commission for inspection

and copying:

A. All materials possessed and relied upon to substantiate any such

representation; and

B. All tests, reports, studies, surveys, demonstrations, or other

evidence in their possession or control that contradict, qualify, or

call into question such representation, or the basis relied upon for

such representation, including complaints from consumers.

It is further ordered that respondents shall distribute a copy of

this Order to each of their officers, agents, representatives,

independent contractors and employees who are involved in the

preparation and placement of advertisements or promotional materials or

in communication with customers or prospective customers or who have

any responsibilities with respect to the subject matter of this Order;

and, for a period of three (3) years from the date of entry of this

order, distribute same to all future such officers, agents,

representatives, independent contractors and employees.

It is further ordered that respondents shall, within sixty (60)

days after the date of service of this Order, file with the Commission

a report, in writing, setting forth in detail the manner and from in

which they have complied with this Order.

File No. 922 3001.

In the matter of Quick Weight Loss Centers, Inc., a Texas

corporation, Don K. Gearheart, individually and as an officer of

said corporation, and Joyce A. Schuman, individually and as an

officer of said corporation.

Agreement Containing Consent Order To Cease and Desist

The Federal Trade Commission having initiated an investigation of

certain acts and practices of Quick Weight Loss Centers, Inc., a Texas

corporation (``QWLC-Tex.''), Don K. Gearheart, individually and as an

officer of said corporation, and Joyce A. Schuman, individually and as

an officer of said corporation, and it now appearing that QWLC-Tex., a

corporation, Don K. Gearheart, individually and as an officer of said

corporation, and Joyce A. Schuman, individually and as an officer of

said corporation (hereinafter, collectively, ``proposed respondents''

or ``respondents''), are willing to enter into an agreement containing

an order to cease and desist from the use of the acts and practices

being investigated,

It is hereby agreed by and between QWLC-Tex., by its duly

authorized officers, Don K. Gearheart, Joyce A. Schuman, and counsel

for the Federal Trade Commission, that:

1. Proposed respondent QWLC-Tex. is a corporation organized,

existing and formerly doing business under and by virtue of the laws of

the State of Texas, with its offices and principal place of business

located at 2900 Gateway, suite 605, Irving, Texas 75063.

2. Proposed respondent Don Gearheart is an individual with his

principal residence located at 9520 East Pinnacle Pear Road,

Scottsdale, Arizona 85255.

3. Proposed respondent Joyce A. Schuman is an individual with her

principal residence located at 2730 Sea Island Drive, Fort Lauderdale,

Florida 33301.

4. Proposed respondents admit all the jurisdictional facts set

forth in the attached draft complaint.

5. Proposed respondents waive:

(a) Any further procedural steps;

(b) The requirement that the Commission's decision contain a

statement of findings of fact and conclusions of law;

contest the validity of the Order entered pursuant to this agreement;

and

(d) Any claim under the Equal Access to Justice Act, 5 U.S.C. 504.

6. This agreement shall not become part of the public record of the