The Diet Workshop, Inc.; The Diet Workshop of Boston, Inc.; Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 932-3176]

The Diet Workshop, Inc.; The Diet Workshop of Boston, Inc.;

Consent Agreement With Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Consent agreement.

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SUMMARY: In settlement of alleged violations of federal law prohibiting

unfair acts and practices and unfair methods of competition, this

consent agreement, accepted subject to final Commission approval, would

prohibit the respondents from misrepresenting the results of any weight

loss program they offer, require them to have scientific data to back

up any claims about weight loss and maintenance, and

[[Page 13498]]

mandate that they make certain disclosures in connection with

maintenance and other claims. The consent agreement settles allegations

that the respondents engaged in deceptive advertising by making

unsubstantiated weight loss and weight-loss maintenance claims and by

implying, without substantiation, that the consumer testimonials they

used represented the typical experience of dieters on the programs.

DATES: Comments must be received on or before May 28, 1996.

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

Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:

Andrew D. Caverly, Boston Regional Office, Federal Trade Commission,

Suite 810, 101 Merrimac Street, Boston, MA 02114-4719, 617-424-5960.

Gary Cooper, Boston Regional Office, Federal Trade Commission, Suite

810, 101 Merrimac Street, 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 agreement containing a consent order

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

final approval, by the Commission, has 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 The Diet Workshop, Inc., and The Diet Workshop

of Boston, Inc., corporations.

[File No. 932-3176]

Agreement Containing Consent Order To Cease and Desist

The Federal Trade Commission having initiated an investigation of

certain acts and practices of The Diet Workshop, Inc. and The Diet

Workshop of Boston, Inc., corporations (collectively referred to as

``proposed respondents''), and it now appearing that proposed

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 The Diet Workshop, Inc., and The

Diet Workshop of Boston, Inc., by their duly authorized officers, and

their attorneys, and counsel for the Federal Trade Commission that:

1. Proposed respondents are Massachusetts corporations, with their

principal office or place of business located at 1 University Office

Park, 29 Sawyer Road, Waltham, Massachusetts 02154.

2. Proposed respondents admit all the jurisdictional facts set

forth in the attached draft complaint.

3. 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;

(c) All rights to seek judicial review or otherwise to challenge or

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

and

(b) 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 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.

5. This agreement is for settlement purposed 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.

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 purposed

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 frame 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 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 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 has been conducted

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

using procedures generally accepted in the relevant 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 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 (12) point type

where the representation that triggers the disclosure is given in

twelve (12) 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 (12) point type.

For any Order-required disclosure given orally in a broadcast medium to

be made clearly and prominently or in a clear and

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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.

I

It is ordered that respondents, The Diet Workshop, Inc. and The

Diet Workshop of Boston, Inc., corporations, their successors and

assigns, and their officers, and respondents' 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, 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 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;

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) 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 of 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: ``Diet Workshop makes no claim that this [these]

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

Workshop 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, or 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 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, 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 pt. bold),

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

acknowledgement 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

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______________________________________] For many dieters, weight

loss is temporary.

I have read this notice.

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(Client Signature) (Date)

[[Page 13500]]

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

(c) Give each client a copy of 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, respondents 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 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; and

(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

quantitive 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 program if the

weight loss success or weight loss maintenance success depicted in the

advertisement is not representative of what participants in

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 Diet Workshop

customers in losing weight or maintaining achieved weight loss;

provided, however, that in determining the generally expected success

for Diet Workshop customers respondents 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.''

(c) ``This result is not typical. You May be less successful.''

(d) ``______'s success is not typical. You may do not 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 is 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,

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

accurately disclosing the generally expected success in the following

phrase: ``Diet Workshop 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, 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, the 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, respondents possess and rely upon competent and

reliable scientific evidence substantiating the representation.

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

prospective participants in respondents' weight loss programs have

reached or 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.

H. 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.

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

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

test or study.

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

efficacy, or benefits of any weight loss program or weight loss

product.

II

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

corporations 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,

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 that were relied upon in disseminating such

representation; and

B. All test, 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.

IV

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 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,

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representatives, independent contractors and employees.

V

It is further ordered that:

A. Respondents shall distribute a copy of this Order to each of

their franchisees and licensees and shall contractually bind them to

comply with the prohibitions and affirmative requirements of this

Order; respondents may satisfy this contractual requirement by

incorporating such Order requirements into their current Operations

Manuals or, if they do not have a current Operations Manual, by

notifying their franchisees and licensees that failure to comply with

the provisions of this Order is at variance with respondents' methods,

standards, and specifications for proper conduct of the franchisee's

business under the franchise agreement; and

B. Respondents shall further make reasonable efforts to monitor

their franchisees' and licensees' compliance with the Order provisions;

respondents may satisfy this requirement by: (1) Taking reasonable

steps to notify promptly any franchisee or licensee that respondents

determine is failing materially or repeatedly to comply with any order

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 their franchise or

license agreements and applicable state law to bring about a cessation

of that conduct by the franchisee or licensee; provided, however, that

respondents' compliance with this Part shall constitute an affirmative

defense to any civil penalty action arising from an act or practice of

one of respondents' franchisees or licensees that violates this Order

where respondents: (a) have not authorized, approved or ratified that

conduct; (b) have reported that conduct promptly to the Federal Trade

Commission under this Part; and (c) in cases where that franchisee's or

licensee's conduct constitutes a material or repeated violation of the

Order, have diligently pursued reasonable and appropriate remedies

available under the franchise or license agreement and applicable state

law to bring about a cessation of that conduct by the franchisee or

licensee.

VI

This order will terminate twenty years from the date of its

issuance, or twenty years from the most recent date that the United

States or the Federal Trade Commission files a complaint (with or

without an accompanying consent decree) in federal court alleging any

violation of the order, whichever comes later; provided, however, that

the filing of such a complaint will not affect the duration of:

A. Any paragraph in this order that terminates in less than twenty

years;

B. This order's application to any respondent that is not named as

a defendant in such complaint; and

C. This order if such complaint is filed after the order has

terminated pursuant to this paragraph.

Provided further, that if such complaint is dismissed or a federal

court rules that the respondents did not violate any provision of the

order, and the dismissal or ruling is either not appealed or upheld on

appeal, then the order will terminate according to this paragraph as

though the complaint was never filed, except that the order will not

terminate between the date such complaint is filed and the later of the

deadline for appealing such dismissal or ruling and the date such

dismissal or ruling is upheld on appeal.

VII

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 form in

which they have 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 The Diet Workshop, Inc. and The Diet

Workshop of Boston, Inc. (hereinafter ``Diet Workshop'' or

``respondents''), marketers of the Diet Workshop low-calorie diet

(hereinafter ``LCD'') program. The Diet Workshop diet program is

offered to the public throughout much of the United States through

company-owned and franchised centers.

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 in this matter charges that the proposed

respondents have made deceptive claims regarding the success consumers

have had losing weight on the respondents' LCD programs, and

maintaining their weight loss. Respondents also are charged with having

made deceptive claims regarding the rate at which consumers lose weight

while on the respondent's ``Quick Loss'' LCD program. Finally, the

complaint alleges that the respondents have engaged in the deceptive

practice of failing to warn consumers whose weight loss progress the

respondents monitored of the importance to their health of consuming

all of the food called for in the diet instructions.

Success

The complaint alleges that the proposed respondents have

represented, directly or by implication, that most consumers using the

Diet Workshop LCD programs (1) reach their weight loss goals and (2)

maintain their weight loss either long-term or permanently. The

complaint charges that, at the time they were made, the respondents did

not possess or rely upon a reasonable basis for these representations.

The complaint alleges further that the respondents have

represented, directly or by implication, that testimonials from

consumers appearing in advertisements and promotional materials for the

Diet Workshop LCD programs reflect the typical or ordinary experience

of members of the public who have used the programs. The complaint

charges that the respondents failed to possess or rely upon a

reasonable basis for these representations.

The proposed consent order seeks to address the alleged success

misrepresentations cited in the proposed complaint in several ways.

First, the order (Part I.A.) requires Diet Workshop to possess a

reasonable basis consisting of competent and reliable scientific

evidence substantiating any claim about the success of participants in

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

[[Page 13502]]

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 experience of participants

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

completion of the respondents' program, including any periods of

participation in respondents' 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 respondents 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 entered 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 respondents'

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: ``Diet Workshop makes no claim that this

result is representative of all participants in the Diet Workshop

program.''

Third, for maintenance success claims made in broadcast

advertisements of thirty seconds or less duration, the proposed order

(Part I.D.) requires that Diet Workshop, 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

respondents' client file.

The proposed order makes clear that this alternative disclosure

requirement does not relieve Diet Workshop 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

quantiative disclosures in short broadcast advertising if Diet Workshop

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.'' Diet Workshop 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 Diet Workshop diet program participants generally achieve, the

order (Part I.E.) requires that Diet Workshop disclose either what the

generally expected success would be for Diet Workshop 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 Testimonals in

Advertising'' 16 C.F.R. 255.2 (a). Under the proposed order, Diet

Workshop may satisfy the requirements of the first disclosure

concerning generally expected success by accurately disclosing those

facts in the following format: ``Diet Workshop clients lose an average

of ______ pounds over an average ______--week treatment period.''

Finally, the proposed order (Parts I.I. and I.J.) generally

prohibits the respondents from misrepresenting (1) the existence,

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

test or study; and (2) the performance, efficacy, or benefits of any

weight loss program or product.

Rate of Weight Loss

The complaint alleges that the proposed respondents have

represented, directly or by implication, that an appreciable number of

consumers using the Diet Workshop's ``Quick Loss'' LCD program lose up

to 20 pounds in a six-week period. The complaint charges that, at the

time this representation was made, the respondents did not possess or

rely upon a reasonable basis for the representation.

The proposed consent order (Part I.F.) prohibits Diet Workshop from

representing the rate or speed at which participants in its LCD

programs will lose weight, unless at the time of making such

representation, Diet Workshop possesses and relies upon competent and

reliable scientific evidence substantiating the representation. In

addition, the proposed order (Part I.G.) prohibits Diet Workshop from

representing that participants or prospective participants in Diet

Workshop LCD programs will reach a specified weight within a specified

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

respondents possess and rely upon competent and reliable scientific

evidence substantiating the representation.

Monitoring Practices

According to the complaint, Diet Workshop provides its customers

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

the proposed respondents' centers once a week for monitoring of their

progress, including weighing in. It is further alleged that in the

course of regularly ascertaining weight loss progress, respondents, in

some instances, are presented 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, if not corrected promptly, could result in health

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

complaint alleges that Diet Workshop has failed to disclose to

customers 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 this alleged deceptive

practice in two ways. First, the order (Part I.H.) requires respondents

to disclose in writing either (1) to each participant

[[Page 13503]]

who, after the first two weeks on the program, is experiencing average

weekly weight loss that exceeds two percent (2%) of said participants'

initial body weight, or three pounds, whichever is less, for at least

two consecutive weeks, or (2) 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. Second, the proposed order (Part I.J.)

generally prohibits any misrepresentation concerning the safety of any

weight loss program.

Compliance

Parts II, III, IV, V and VII of the proposed order are compliance

reporting provisions that require the respondents to: notify the

Commission of any changes in the structure of the respondents that may

affect their compliance obligations under the order; retain all records

that would bear on the respondents' compliance with the order;

distribute copies of the order to the respondents' operating divisions

and to those persons responsible for the preparation and review of

advertising material covered by the order; distribute a copy of the

order to each of the respondents' franchisees and licenses, take steps

to contractually bind the franchisees and licensees to the order, and

take certain additional steps designed to encourage or require the

franchisees and licensees to comply with the order; and report to the

Commission their compliance with the terms of the order.

Part VI of the proposed order provides generally that the proposed

order will sunset twenty years from the date of issuance, unless a

complaint to enforce the order (with or without an accompanying consent

decree) was/is filed while the order was/is in force. In such a case,

the order sunsets twenty years after the filing of the complaint.

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

proposed interpretation of the agreement and proposed order or to

modify in any way their terms.

Donald S. Clark,

Secretary.

[FR Doc. 96-7294 Filed 3-20-96; 8:45 am]

BILLING CODE 6750-01-M