Field Reports1 Mar, 2004 By: Thomas Haire Response
Federal Court Turns Down FTC Injunction Request Against BodyFlex
LOS ANGELES - A federal judge has denied the Federal Trade Commission's (FTC) original request for an injunction against the advertisement of the BodyFlex weight-loss system. In the ruling, U.S. District Judge Florence-Marie Cooper contends the government failed in its "burden to demonstrate a probability of success on the merits" of its charges that Savvier Inc., the product's marketer, could not substantiate claims made in the infomercial that consumers could lose between four and 14 inches across six body areas in the first seven days using BodyFlex.
"The defense [Savvier] provides the court with evidence of the efficacy of its product and the truthfulness of its claims," Cooper's ruling reads in part. "The plaintiff [FTC] argues that it simply cannot be believed. Plaintiff's experts do opine that defendant's tests are flawed and the results are improbable; but the result of considering the positions of all the experts on both sides of this case is not a conclusion that the government, at this stage, is likely to succeed on the merits … the claims they [Savvier] do make, although admittedly hard to believe, are that the product produces lost inches. Those claims have not been shown to the court to be false."
Cooper also pointed to Savvier's continued willingness to negotiate with the FTC regarding this action as reason to believe that no emergency intervention is currently required. The FTC filed an amended complaint to the court in early February, and final resolution is pending at press time.
Savvier President Jeff Tuller says, "From the very start, we were confident that once our substantiation was reviewed, the situation would resolve itself. At this point, we are committed to working with the FTC to amicably resolve their remaining concerns outside the courtroom. BodyFlex has been in the marketplace for almost 20 years -- and [its] customer satisfaction is very strong. It's unfortunate this action was initiated because of a complaint filed by a jealous competitor. Prior to the competitor's complaint, the FTC had not received any complaints from consumers."