Fitness Quest, Inc., et al; Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 9823633]

Fitness Quest, Inc., et al; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged

violations of federal law prohibiting unfair or deceptive acts or

practices or unfair methods of competition. The attached Analysis to

Aid Public Comment describes both the allegations in the draft

complaint that accompanies the consent agreement and the terms of the

consent order--embodied in the consent agreement--that would settle

these allegations.

DATES: Comments must be received on or before July 19, 1999.

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

Room 159, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:

Robert Frisby & Robin Spector, FTC/S-4302, 601 Pennsylvania Avenue,

N.W., Washington, D.C. 20580, (202) 326-2098 or (202) 326-3740.

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 above-captioned 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. The following Analysis to Aid Public

Comment describes the terms of the consent agreement, and the

allegations in the complaint. An electronic copy of the full text of

the consent agreement package can be obtained from the FTC Home Page

(for May 12th, 1999), on the World Wide Web, at ``http://www.ftc.gov/

os/actions97.htm.'' A paper copy can be obtained from the FTC Public

Reference Room, Room H-130, 600 Pennsylvania Avenue, N.W., Washington,

D.C. 20580, either in person or by calling (202) 326-3627.

Public comment is invited. Comments should be directed to: FTC/

Office of the Secretary, Room 159, 600 Pennsylvania Avenue, N.W.,

Washington, D.C. 20580. Two paper copies of each comment should be

filed, and should be accomplished, if possible, by a 3\1/2\ inch

diskette containing an electronic copy of the comment. 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).

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission has accepted, subject to final

approval, an agreement to a proposed consent order from Fitness Quest,

Inc. and Robert R. Schnabel, Jr. The agreement would settle a proposed

complaint by the Federal Trade Commission that Fitness Quest and Robert

R. Schnabel, Jr. engaged in unfair or deceptive acts or practices in

violation of Section 5(a) of the Federal Trade Commission Act.

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

sixty (60) days for 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 the comments received and will decide whether it should

withdraw from the agreement or make final the agreement's proposed

order.

This matter concerns advertising practices related to the sale of

exercise equipment and weight-loss products, including the ``Airofit,''

``SkyTrek'' and ``Gazelle Glider,'' exercise gliders, and the ``Ab

Isolator'' and ``Abs Only Machine'' abdominal exercise devices. The

proposed complaint charges that, through the use of statements

contained in its advertisements and promotional materials, the

respondents made the following unsubstantiated representations for

their exercise gliders: (A) Under conditions of ordinary use, the

Airofit (1) burns calories at a rate of up to 1,000 per hour; (2) burns

three times more calories than burned while walking; (3) burns nearly

twice the calories burned while cross-country skiing or exercising on a

treadmill; (4) burns significantly more calories than are burned while

swimming, bicycling or doing step aerobics; and (5) causes significant

weight loss; (B) Testimonials from consumers appearing in

advertisements for the Airofit reflect the typical or ordinary

experience of members of the public who use the product; (C) Under

conditions of ordinary use the SkyTrek (1) burns calories at a rate of

up to 1,000 per hour; (2) burns three times more calories than burned

while walking at 3 m.p.h.; and (3) burns nearly two times the calories

burned while cross country skiing at 5 m.p.h.; and (D) Under conditions

of ordinary use the Gazelle Glider (1) burns calories at a rate of up

to 1,000 per hour; (2) burns three times more calories than burned

while walking at 3 m.p.h.; (3) burns nearly twice the calories burned

while cross country skiing at 5 m.p.h.; and (4) burns more calories

than burned while running at 5.5 m.p.h.

The proposed complaint also charges that the respondents made the

following unsubstantiated representations for their abdominal exercise

devices: (A) The Ab Isolator is twice as effective as regular sit-ups;

(B) The Ab Isolator is more effective than other abdominal exercise

devices; (C) Use of the Ab Isolator three minutes a day results in a

significantly reduced waistline in thirty days; (D) Use of the Ab

Isolator results in a significant reduction in clothing size and

waistline; (E) Testimonials from consumers appearing in advertisements

for the Ab Isolator reflect the typical or ordinary experience of

members of the public who use the product; and (F) The Abs Only Machine

is twice as effective as regular sit-ups.

The proposed consent order contains provisions designed to prevent

the respondents from engaging in similar acts and practices in the

future. Part I of the proposed order prohibits the respondents from

making any representation about the benefits, performance or efficacy

of any exercise equipment or weight-loss product unless, at the time

they make the representation, they possess and rely upon competent and

reliable evidence, which when appropriate must be scientific evidence,

that substantiates the representation. Part I also provides that

nothing in the order shall prohibit the respondents from making a

truthful statement that merely describes the existence, design,

instructions for use, or content of any such product.

Part II of the proposed order prohibits the respondents from

representing that the experience represented by any user testimonial or

endorsement of any exercise equipment or weight-loss product represents

the typical or ordinary experience of members of the public who use the

product unless either: (A) at the time it is made, the respondents

possess and rely upon competent and reliable evidence that

substantiates the representation; or (B) the respondents disclose,

clearly and prominently, and in close proximity to the endorsement or

testimonial, either (1) what the generally expected results would be

for users of the product; or (2) the limited applicability of the

endorser's experience to what consumers may generally expect to

achieve. Part II lists six statements that would satisfy the disclosure

requirement:

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

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

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

(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.''

The proposed order also contains standard provisions regarding

record-keeping, notification of changes in the respondents' status, the

filing of a compliance report, and termination of the order. In

addition, the proposed order contains a provision requiring

distribution of the order that sunsets after three years.

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 the proposed order or to modify

their terms in any way.

By direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 99-12659 Filed 5-19-99; 8:45 am]

BILLING CODE 6750-01-M