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Texas Suit Goes After Diet Claim

Dec 6, 2002 | Houston Chronicle

Newly elected Texas Attorney General Greg Abbott has gone after the makers of weight loss product Body Solutions, which promised weight loss while users slept, in his first major action.

Abbott selected the agency's Consumer Protection Division office in Houston for the news conference where he promised that prosecuting consumer fraud will be one of the hallmarks of his administration.

His office Thursday filed a lawsuit in district court in Dallas, claiming deceptive advertising against Mark Nutritionals of San Antonio, its owners Harry Siskind and Edward D'Alessandro, plus an executive vice president and the director of its research arm.

"To claim as they do that a person can take this product at night, avoid vigorous exercise and a disciplined diet and lose a lot of weight in the process just stretches the boundaries of both imagination and reality," Abbott said.

The company has no long-term studies to back up its claims, he said.

Also on Thursday, the company announced an agreement with the Federal Trade Commission over its marketing. It outlines how Body Solutions will be sold in the future, including restrictions on third-party endorsements.

The lawsuit quoted one radio personality in Dallas who said last year that he'd lost 36 pounds using Body Solutions, and kept it off even though "I ate so much over Thanksgiving, I still have turkey burps."

A spokesman for Mark Nutritionals said there has been no advertising since the company filed for Chapter 11 bankruptcy protection in September.

The company knew the FTC was going to file a complaint and ask for an immediate injunction, said Chief Executive Officer Larry Cochran, so it decided to work with federal agency. "It is something I myself helped to draft. We feel it is very positive, a step in the right direction for everyone."

The company's Web site now recommends users skip snacks and increase their physical activity.

Mark Nutritionals expects to work with the state of Texas the same way it worked with the FTC, said Cochran, a turnaround specialist hired shortly after the bankruptcy filing.

The company has additional new management, including three former executives of Pace Foods.

Texas spearheaded a yearlong 12-state investigation coordinated with the FTC, Abbott said. The case was referred to the attorney general's office by the Texas Department of Health. The Texas lawsuit asks for an injunction and unspecified penalties under both the Deceptive Trade Practices Act and the Texas Food, Drug and Cosmetics Act.

The dietary supplement claims that the $48 bottles of liquid, taken at the rate of a teaspoonful on an empty stomach just before going to bed, can burn fat and cause a person to lose weight.

Body Solutions is sold over the Internet, on the phone and at several major stores nationwide. Its advertising has been on 650 radio stations in 110 cities. The Web site was still running Thursday.

"New technology for an old-fashioned rip-off," the attorney general said about the product's marketing methodology.

Mark Nutritionals' annual sales, the vast majority of which involve the Evening Weight Loss Formula, have grown from $10 million in 1999 to $33 million in 2000 and $100 million in 2001.

Through October, sales totaled $47 million, said Abbott.

The suit seeks restitution and an injunction to stop misrepresentations. Civil penalties of up to $25,000 per violation are possible.

Abbott was not aware of any health problems of people taking Body Solutions, other than "the health of their pocketbook."

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