Wellquest International, Inc., Tony Hoffman Productions, Inc. (THPI) and others have agreed to settle Federal Trade Commission charges that they made false and unsubstantiated claims for Bloussant (sold for breast enhancement), EnerX (sold for men's virility) and D-Snore (sold to relieve snoring). The defendants also agreed to settle charges that they made misrepresentations and failed to disclose material terms in connection with third-party buying club memberships they "upsold" to consumers after the consumers agreed to purchase Wellquest's products. The proposed settlement requires the defendants to (a) pay $3.2 million in consumer redress; (b) possess scientific substantiation before making certain claims about dietary supplements, foods, drugs, or cosmetics; and (c) comply with the FTC's newly amended Telemarketing Sales Rule .
The principal defendants named in the FTC complaint are Wellquest and its president, Eddie Mishan, and THPI and its president, Anthony Hoffman. The complaint also named Wellquest shareholders Jeffrey Mishan, Steven Mishan, Isaac Mishan, Morris Mishan, and Al Mishan as "relief defendants" who did not participate in the deceptive practices but profited from them. Wellquest has offices in New York City and in Thousand Oaks, California. THPI, based in Newbury Park, California, produced many of the challenged ads and provided telemarketing services for Wellquest's products. The complaint also named Mark Buchfuhrer, M.D., as a defendant in connection with his endorsement of the D-Snore product.
Bloussant was heavily marketed in magazines, such as Mademoiselle, Elle, and Allure, in monthly direct mailers, and through infomercials that ran on 30 major cable stations and numerous broadcast stations, as well as on the Internet. The ads falsely claimed that Bloussant (a) stimulates breast cells to regenerate the growth process, thereby increasing breast size by two cups in most women, (b) was clinically proven to increase bust size in most women, and (c) was clinically proven to be safe. Prospective customers were directed to call a toll-free telephone number, where the telemarketers often reiterated the claims. Bloussant's ingredients are said to be saw palmetto extract (serenoa repens) (leaf), fennel seed (foeniculum vulgare) (fruit), don quai (leaf), damiana (tumera diffusa) (leaf), blessed thistle (cnicus benedictus) (leaf), dandelion (taraxaci herba) (root), watercress (nasturtium officinale) (leaf), black cohosh (cimicifuga racemosa) (root), wild yam (dioscorea villosa) (root), silicon dioxide, magnesium stearate, titanium dioxide, gelatin, and water. Bloussant cost $220 for a two-month supply and $574 for an eight-month supply. Sales of Bloussant have exceeded $70 million .
The FTC also challenged claims made about EnerX, an herbal supplement promoted for male potency. The complaint alleged that the defendants' claims that EnerX is safe and lacking in side effects are deceptive because EnerX contains yohimbine, an ingredient known to increase blood pressure and to interact with other medications. EnerX was marketed through magazine and newspaper ads, commercials on approximately 50 cable television stations, direct-mail fliers, and the Internet. Its ingredients were said to be arginine, ashwagandha, damiana, guarana, muira puma, niacin, panax ginseng, tribulus terrestris, yohimbe, zinc, and a "potent herb blend . . . used by ancient Chinese royalty to build up general health . . . . help delay premature ejaculation and build up hormone (testosterone) levels." A two-month supply of EnerX cost $109. Sales of EnerX have exceeded $24 million.
The FTC complaint further challenges that the defendants, including
Dr. Buchfuhrer, deceptively advertised that D-Snore significantly
reduces or eliminates snoring or the sound of snoring and can
mitigate the symptoms of sleep apnea, including daytime tiredness
and frequent interruptions of deep restorative sleep. D-Snore
is a liquid mouth spray containing vegetable oils and vitamins
that costs $58 for a one-month supply. It was advertised through
30-minute infomercials and commercials on cable television stations
such as Discovery Channel, Nick at Nite, and the Learning Channel;
half- and full-page ads in over 350 newspapers nationwide; in
magazines such as Prevention, Family Circle, and Vogue; in direct
mail inserts; and on the Internet. Buchfuhrer is a board-certified
pulmonary specialist who practices in Downey, California. D-Snore
is said to contain purified water, glycerin, olive oil, lecithin,
sunflower oil, sweet almond oil, sesame oil, grapeseed oil, citric
acid, and other ingredients. The label directs consumers to spray
the product three to four times toward the inside upper part of
the mouth before going
to sleep, hold it in the mouth for twenty seconds, and swallow. The cost is $58 for a one-month supply, $170 for a four-month supply, and $270 for an eight-month supply is $270. Sales of D-Snore have exceeded $19 million.
The FTC complaint also alleges that the defendants engaged in deceptive upselling practices by enrolling consumers in one or more third-party buying services without the consumers' consent. According to the complaint, after consumers provided a credit card to purchase one of Wellquest's products, the telemarketer upsold the third-party buying services on a "no obligation" free-trial basis. The defendants allegedly did not adequately disclose that they would charge consumers' credit cards if the consumers did not cancel before the end of the trial period. Additionally, the complaint alleges that the defendants falsely represented that refunds were readily available, when, in many instances, they failed to make refunds.
The Commission has entered into two separate orders: one against Dr. Buchfuhrer and one against the other four defendants and the relief defendants:
Information about Bloussant and some of the prohibited claims for EnerX and D-Snore have been removed from Wellquest International's Web site, but former versions can be viewed via the Wayback Machine.