A federal judge has entered stipulated orders for preliminary injunction with asset freezes against Harry Siskind and Edward G. D'Alessandro, Jr., the two individual defendants named in the Federal Trade Commission case filed on December 5, 2002 against Mark Nutritionals, Inc. The San Antonio, Texas-based company, and its officers, Siskind and D'Alessandro, marketed Body Solutions Evening Weight Loss Formula (Evening Formula) primarily through the use of allegedly deceptive radio ads. Using both English and Spanish-language testimonial endorsements from popular radio disk jockeys on more than 650 radio stations in 110 cities nationwide, the defendants claimed that Evening Formula offered consumers the unique opportunity to lose substantial and permanent weight without diet or exercise.
The FTC's complaint alleged that the defendants falsely claimed that Evening Formula would cause substantial weight loss, as much as 20 to 40 pounds, without the need to diet or exercise; cause substantial weight loss even if users eat substantial amounts of high calorie foods; and cause long-term or permanent weight loss. The complaint also alleged that the defendants falsely claimed that Evening Formula was clinically proven to cause substantial weight loss, to burn a substantial amount of body fat, and to build a substantial amount of lean muscle mass, all without the need to diet or exercise.
The individual defendants in the FTC's action have stipulated to preliminary injunctions, which were entered by U.S. District Judge Edward C. Prado, on December 23. The injunctions, which will be effect until the court issues a final ruling on the FTC's allegations, will prohibit the defendants from making any false or misleading representations about Evening Formula. They also prohibit the defendants from using the term "Weight Loss" in the name of Evening Formula unless the defendants have competent and reliable scientific evidence that substantiates that the product will cause clinically significant weight loss.
The injunctions also prohibit the defendants from making any claim about the safety, health benefits, performance, or efficacy of any food, drug, dietary supplement, or other health-related product or service, unless at the time the claim is made, they possess competent and reliable scientific evidence that substantiates the claims. In addition, the injunctions prohibit the defendants from misrepresenting the existence, contents, validity, results, conclusions, or interpretations of any test, study or research. The injunctions also freeze the assets of the two individual defendants and preserve them for potential refunds for consumers.