UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

COMPLAINT FOR PERMANENT INJUNCTION
AND OTHER EQUITABLE RELIEF

Plaintiff, Federal Trade Commission (the "Commission"), through its undersigned attorneys, hereby alleges as follows:

1. The Commission brings this action under Section 13(b) of the Federal Trade Commission Act (the "FTC Act"), 15 U.S.C. § 53(b), to secure a permanent injunction, preliminary injunctive relief, and other equitable relief against Defendants for engaging in deceptive acts or practices and false advertisements for food, drugs, devices, services or cosmetics, in or affecting commerce, in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52. The Commission brings this action to enforce Sections 5(a) and 12 of the FTC Act under its police and regulatory powers.

JURISDICTION AND VENUE

2. This Court has subject matter jurisdiction of this matter pursuant to 15 U.S.C. §§ 45(a), 52 and 53(b), and 28 U.S.C. §§ 1331, 1337(a), and 1345.

3. Venue in this district is proper under 15 U.S.C. § 53(b) and 28 U.S.C. § 1391(b) and (c).

THE PARTIES

4. Plaintiff Commission is an independent agency of the United States Government created by statute. 15 U.S.C. §§ 41, et seq. The Commission is charged, inter alia, with enforcement of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52, which respectively prohibit unfair or deceptive acts or practices in or affecting commerce, and false advertisements for food, drugs, devices, services or cosmetics in or affecting commerce. The Commission is authorized to initiate Federal District Court proceedings to enjoin violations of the FTC Act and to secure such equitable relief, including consumer redress, as may be appropriate in each case. 15 U.S.C. § 53(b).

5. Defendant Mark Nutritionals, Inc. ("Mark"), is a Texas corporation with its headquarters and principal place of business at 13311 San Pedro, San Antonio, Texas 78216. Mark transacts or has transacted business in the Western District of Texas.

6. On September 17, 2002, Defendant Mark Nutritionals, Inc. filed a voluntary petition for relief under the reorganization provisions of Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq., in the United States Bankruptcy Court for the Western District of Texas, Case No. 02-54469-LMC (the "Corporate Bankruptcy Case"). The Commission's action against Defendant Mark Nutritionals, Inc. is not stayed by 11 U.S.C. § 362(a) because it is an exercise of the Commission's police or regulatory power as a governmental unit pursuant to 11 U.S.C. § 362(b)(4) and thus falls within an exception to the automatic stay.

7. Defendant Harry Siskind is the President, Chief Executive Officer, director and 50% shareholder of the corporate Defendant Mark. He is one of only two officers, directors and shareholders of the corporate Defendant. At all times relevant to this Complaint, acting alone or in concert with others, he has formulated, directed, controlled, had the authority to control or participated in the acts and practices of Defendant Mark, including the acts and practices set forth in this Complaint. He resides in or transacts or has transacted business in the Western District of Texas.

8. Defendant Edward G. D'Alessandro, Jr. is the Secretary and Treasurer, director and 50% shareholder of the corporate Defendant Mark. He is one of only two officers, directors and shareholders of the corporate Defendant. At all times relevant to this Complaint, acting alone or in concert with others, he has formulated, directed, controlled, had the authority to control or participated in the acts and practices of Defendant Mark, including the acts and practices set forth in this Complaint. He transacts or has transacted business in the Western District of Texas.

COMMERCE

9. The acts and practices of Defendants, as alleged herein, are in or affecting commerce, as "commerce" is defined in Section 4 of the FTC Act, 15 U.S.C. § 44.

DEFENDANTS' COURSE OF CONDUCT

10. Since at least January of 1999, Defendants have engaged in the advertising, promotion, offering for sale and sale of a purported weight loss product called Body Shaper and/or Body Solutions Evening Weight Loss Formula ("Evening Formula") to consumers throughout the United States. Defendants promote Evening Formula through radio and television advertising, via the Internet, and through other means. Consumers may order Evening Formula by calling a toll-free telephone number or by ordering over the Internet. Recently, Defendants began marketing Evening Formula through retail outlets, such as Wal-Mart, Eckerd's, K-Mart and Walgreen's.

11. Evening Formula is a liquid product, the active ingredients of which have changed over time. Evening Formula's active ingredients currently include stevia, conjugated linoleic acid, and "proprietary blends" of chromium (as chromium picolinate, chromium polynicotinate, and chromium cruciferate), aloe vera gel, hydrolyzed collagen, chicory, plant teas, and amino acids (L-lysine, L-ornithine, L-arginine, L-carnitine, L-glycine and trimethylglycine).

12. Evening Formula labeling, advertising, and promotional materials instruct consumers to take one tablespoon (15 ml.) of the product with eight ounces of water before going to bed and at least three hours after consuming any food or liquid.

13. To induce consumers to purchase Evening Formula, Defendants have disseminated or caused to be disseminated advertisements for the product on over 650 radio stations in 110 cities nationwide. Thirty- to sixty-second radio "spots" for Evening Formula in English and Spanish have aired daily on radio stations across the United States. Typically, the radio spots are "live reads" or taped spots by radio personalities who have used Evening Formula, and who purport to present their personal experience and/or the personal experience of other consumers who have used the product. The English radio spots contain, inter alia, the following statements and representations (the complete text of each English radio advertisement is attached as Exhibit A):

a. "Body Solutions Evening Weight Loss Formula. . . . With Body Solutions, you lose weight while you sleep. . . . I have lost 10 pounds, been able to keep the weight off, down to a size six, so excited. And you know what, if you are trying to lose weight, Body Solutions could do the same thing for you, too. It's easy. I have not been exercising, have not changed my diet, and yet, I was able to lose the weight." (Stacey Brooks, KMLE, Country 108, Phoenix, AZ, August 2000)

 

b. "I've lost 20 pounds . . . and it's staying off." (Trapper Jack, WDOK, Cleveland, OH, January 2001)

 

c. "I could go for a nice sausage biscuit with a side order of cheese grits and a couple of strips of Jimmy's famous bacon. . . . I don't get to eat breakfast like this every day. But thanks to Body Solutions lose weight while you sleep formula, I can have my bacon, sausage and grits and still lose weight. I've lost over 19 pounds so far and over an inch off my waistline." (Willard Arbour, WZGC, Atlanta, GA, September 2000)

 

d. "I've lost 23 pounds with Body Solutions. I no longer look like an offensive lineman. I still eat like one, though. And I can eat all my favorite Dome food. I mean, at the game, you've got to have a Dome dog and some peanuts and nachos . . . . But I'm not worried about it because you can eat whatever you want, as long as you don't eat for three hours after your last meal or snack before you go to bed and you take the Evening Weight Loss Formula with a glass of water, the pounds just go away. You don't have to give anything up. It's not a diet. You don't have to deprive yourself. You can still have your favorite foods . . . " (Adam Abrams, KQQL, Minneapolis, MN, September 2000)

 

e. "This is so great because I am a food lover. And this is the easiest thing I've ever found, because I eat pretty much what I want all day long . . . . All I do is take a tablespoon of the Body Solutions Evening Weight Loss Formula at the end of the day with some water, on an empty stomach, and I've lost the weight while I sleep. Fifteen pounds and I've been keeping it off. That's right. Keeping it off." (Chris Zito, WPLT, Radio Detroit, MI, October 2000)

 

f. "Body Solutions . . . quite definitely not a diet . . . . And you do it while you sleep, while eating what you want to eat all day. . . . PAT: 'It's amazing to me that something so simple can work so well, and I still eat all my favorite foods and everything. You know me, I love pizza and I love beer and the whole thing, and I haven't changed anything other than not eating three hours before bedtime.' . . . It really does work." (Woody Johnson, WCOL Radio, Columbus, OH, November 2000)

 

g. "With Body Solutions Evening Weight Loss Formula, you can eat whatever you want and lose weight while you sleep. . . . I don't know how it works. All I know is that it works. I've lost 22 pounds - my goal is 25 pounds - using nothing but Body Solutions Evening Weight Loss Formula." (John McCulloch, WXYT Radio, Detroit, MI, November 2000)

 

h. "It helped me lose 36 pounds and it helps me maintain through the holidays. I mean, I ate so much over Thanksgiving, I still have turkey burps. But thanks to Body Solutions, I keep the weight off and now I'm ready for Christmas. So, bring it on, Grandma. The honey-baked ham, the apple pie, the Christmas cookies. I'm not afraid because I've got Body Solutions Evening Weight Loss Formula. . . . Get on the Body Solutions Evening Weight Loss Formula right now and you'll be ready for Christmas." (Jeff Kaye, KKMR, Dallas, TX, December 2000)

 

i. "I have finally lost those 20 pounds and I did it with Body Solutions Evening Weight Loss Formula, and it was simple. All I had to do was take a spoonful of Body Solutions Evening Weight Loss Formula with a glass of water before bed about three hours after eating my last meal of the day and that is it. That's all I had to do. Body Solutions goes to work while I'm sleeping, burning away at my fat. I was losing weight while I slept. . . . With Body Solutions, you don't change the foods you love to eat, and you will still lose that weight." (Mitch Elliot, WFOX, Atlanta, GA, in or around March 2001)

 

j. "[L]et's throw out a number . . . 28, and that is the number of pounds that are no longer on me. . . . How about something that's not a diet, a weight loss plan where you eat what you want when you want to have it, as long as you stop three hours before you go to bed. You take a tablespoon of Body Solutions with a glass of water at bedtime . . . and that's working for me. Twenty-eight pounds . . . . Check out the website for their scientific research and their studies . . . ." (John Carney, KMOX, St. Louis, MO, in or around April 2001)

 

k. "Look, I've lost 25 pounds. . . . This is the program where you eat what you want. And thank you Body Solutions. I have another full room in my house. The bench that I used for all my weights, that's gone. . . . I've replaced it all with a bottle that fits nicely in the corner of my refrigerator." (Jim LaBarbara, Oldies WGRR, Cincinnati, OH, in or around May 2001)

 

l. "Body Solutions is something that truly works. I've dropped 16 pounds now thanks to Body Solutions, taken an inch off my waist, and it really is all happening while I'm asleep and I can eat whatever I want, too. That's the way Body Solutions works. . . . And the really neat thing is I can eat whatever I want to, don't have to exercise if I don't feel like it . . . ." (Read Shepard, WDUV, Tampa, FL, June 2001)

 

m. "I'm on the way to 40 pounds of weight loss. I am at 18 pounds now. . . . And you can start losing weight just like I have, so what are you doing? Are you trying to get on a diet you don't need to be worried about? Are you trying to go out to the gym five, six times a week? You don't need to do that. Your solution to your weight loss is just like I have decided to do. It's Body Solutions. One tablespoon at night three hours after your last meal and you're gonna start taking off the pounds just as I did." (Rudy V, KRNB, Dallas, TX, in or around June 2001)

 

n. "[S]ince I started taking Body Solutions about a month ago, I've already lost 10 pounds and a couple of inches off my waistline. . . . I actually lose weight while I sleep . . . and I don't have to do some big exercise regimen or change anything about what I eat. I've been eating all my favorite foods and still lost 10 pounds in the last month." (Jerry Jones, KCIY-FM, Kansas City, MO, in or around June 2001)

 

o. "I lost eight pounds on Body Solutions. I've had it on for a couple of months. I have not put an ounce back on. . . . All the things you have to do to lose weight, you don't have to worry about with Body Solutions. You take a glass of water, a tablespoon of Body Solutions three hours after your last meal of the evening. You don't have to exercise. It's not a diet. It burns fat while you sleep . . . ." (Dan & Steve, WISH, Pittsburgh, PA, July 2001)

 

p. "Body Solutions Evening Weight Loss Formula is an all-natural solution, when taken every night on an empty stomach right before you go to bed, will help you to lose weight while you sleep. It's that easy. No dangerous drugs, no diet, no side effects." (Charles Osgood, Westwood One Radio Network with over 400 affiliates nationwide, July 2001)

 

q. "I'm doing great on their Evening Weight Loss Formula. . . . I'm dropping weight. The pounds are dropping like flies. It's totally natural, completely safe, proven effective. You can check out the research at bodysolutions.com." (Renee Brinkley, K101, San Francisco, CA, September 2001)

 

r. "Here's what the CEO of Body Solutions, Harry Siskind, had to say about it. HARRY SISKIND: 'We're like Coca-Cola, nobody has the formula. It's under lock and key. We have spent millions of dollars for clinical studies to prove the efficacy of our product and to protect our consumers, and this has been going on for years. . . .'" (Brian and Joe, WMVX, Cleveland, OH, September 2001)

14. To induce Spanish-speaking consumers to purchase Evening Formula, Defendants have disseminated or caused to be disseminated Spanish-language radio advertisements which contain, inter alia, the following statements and representations (an English-language translation follows each quote) (the complete text both in Spanish and English of each radio advertisement is attached as Exhibit B):

a. "Bien sencillo, Héctor, solamente con una cucharada sopera de Body Solutions diluído en ocho onzas de agua es suficiente para que tú bajes tallas, pierdas peso. Y ésto es durante la noche. Tú vas a perder peso durante la noche. Así que tómalo porque, ¿sabes qué? No hay ninguna necesidad de hacer una dieta especial o drástica, ni dramática, para perder de peso. No te mueras de hambre, mejor toma Body Solutions durante en la noche." (Translation: It's easy, Hector. Just one tablespoon of Body Solutions in eight ounces of water is enough for you to have to change your dress size and lose weight. And this happens during the night. You are going to lose weight during the night. So take it; do you know why? It requires no special, drastic nor dramatic diet in order to slim down. Don't kill yourself going hungry; it is better to take Body Solutions at bed time.) (unidentified radio personality)

 

b. "¡Qué tal! Te saluda Pepe Duarte, el hombre mas feliz del mundo. . . . Aquí donde está precisamente el lugar en donde se vende el líquido milagroso de Body Solutions. . . . Solo deja de comer tres horas antes de irte a dormir y al acostarte tómate una cucharada de Body Solutions con un vaso de agua. Y a bajar de peso durmiendo. A mí me preguntan que si estoy enfermo, que si estoy ahí en el gimnasio todos los días. No. Yo simplemente como lo regular, pero antes de irme a acostar tres horas antes dejo de comer. Y entonces al acostarme ahí estoy tomando mi Body Solutions. ¿El resultado? Ven a ver este cuerpo escultural que tenemos ahora con trece libras menos. Y sin exagerarte." (Translation: Hello there! This is Pepe Duarte, the most happy man in the whole world. . . . Here where we sell the magic liquid called Body Solutions. . . . You only need to stop eating three hours before retiring to bed; before bed time take one tablespoon of Body Solutions in a glass of water. And you'll lose weight while sleeping. A lot of people ask me if I am sick, or if I go every day to the gym. No! I simply eat as usual, but I stop eating food three hours before my bed time. And then when I am ready to go to bed I take my Body Solutions. The result? Come and look at my shapely body with thirteen pounds less. And we are not exaggerating.) (Pepe Duarte, KCOR, FM-95.1, San Antonio, Texas)

 

c. "Pero principalmente queremos convencerte de que Body Solutions es el producto ideal para bajar de peso. Body Solutions, baja de peso mientras usted duerme. Es muy sencillo de tomarlo. Simplemente hágalo tres horas antes de que se vaya a dormir. Y al acostarse tómese una cucharada de Body Solutions con un vaso de agua. Así de sencillo y fácil. No tiene usted que andarse esmerando en dietas fuertes. Tampoco con ejercicios drásticos y mucho menos como, por ejemplo, estar allí en los gimnasios. Pero, no, no, no. Simplemente usted trabaja su vida normal y lo único que tiene que hacer es simplemente antes de irse a dormir, tres horas antes no comer nada y luego tomarse una cucharada de Body Solutions." (Translation: But, most of all, we want to convince you that Body Solutions is the ideal product to lose weight. Body Solutions, lose weight while you sleep. It's very easy to take. Take it simply three hours before bed time. And when you are ready to go to bed take a tablespoon of Body Solutions in a glass of water. It's easy and simple to take. You don't have to follow any diets, or go through drastic exercises nor, for example, go to the gym. No, no, no! Just continue with your normal life. The only thing you would do is simply before going to bed is to stop eating three hours before, and then you take a tablespoon of Body Solutions.) (Pepe Duarte, KCOR, FM-95.1, San Antonio, Texas)

 

d. "A ustedes, chicos y chicas, si son de las personas que al igual que yo padecen del problema de peso. Que es difícil bajar de peso. Yo les recomiendo algo que, de verdad, es la solución. Body Solutions! . . . Trabaja mientras duermes. Yo en lo personal no lo siento como una dieta. Yo bajé más de diez libras y super-contenta porque ningún otro producto, ninguna otra dieta, me ha resultado como Body Solutions. Porque si acaso bajaba de peso, en cuanto lo dejaba de usar volvía a subir hasta el doble de lo que había perdido. Y Body Solutions ha cambiado mi vida porque ahora hasta visto diferente mi ropa, que la verdad que siempre quería usar y mas ahora que viene el verano. ¡A lucir buena figura!" (Translation: To you, guys and gals, if you are people like me suffering from a weight problem. It's very difficult to lose weight. I recommend to you something that is truly the solution. Body Solutions! . . . It works while you sleep. Personally, I don't feel like I am on a diet. I already lost more than ten pounds and I am very happy because no other product nor diet has been so effective like Body Solutions. Because when I used to lose weight before, when I stopped, I regained double of what I lost before. And Body Solutions changed my life because now I can wear my different outfits, clothes that I wanted to use before. Especially now that summer is around the corner. Show-off a shapely body!) (Kelly Granados, New 106.5)

15. To induce consumers to purchase Evening Formula, Defendants also advertise, promote and market Evening Formula via an Internet Website at www.bodysolutions.com. The Body Solutions website contains testimonials with before and after photos of endorsers, answers to frequently asked questions, characterizations of research studies conducted on their products, and representations about Evening Formula. These representations include, inter alia, the following statements and representations (copies of the particular web pages from the Body Solutions website which contain the following quotes are attached as Exhibit C):

a. "Johnny Ramirez [:] Lost: 56 pounds Kept Off: 6 months [:] Fat, according to Johnny Ramirez, is the enemy of Hispanics. . . . To date, Ramirez has dropped 56 pounds . . . using the Body Solutions Evening Weight Loss Formula . . . . The culprit for the weight problems of Texan Hispanics, says Ramirez, '. . . are all the wrong kinds of foods . . . the greasy and fried foods that we love . . . I'm one of them and they know I love the same foods they do. I'm one of the overweight Hispanics who works very hard at his job but who hates to work out.' Ramirez hasn't changed his diet but has curbed his late night eating tendencies. Despite dropping off the product for one six month period he has dropped from 287 pounds to 231 pounds. . . . 'Some guy will say 'hey . . . . Do you still love to eat?' and of course they can see that I do because they are always bringing tacos and donuts to the broadcast booth.' " (Johnny Ramirez)(10/22/01 web site)

 

b. "Vernon Copp [:] Lost: 70 pounds Kept Off: 10 months . . . 'I was 290 pounds in the photo and I said 'that's it!' he remembers. He began taking Body Solutions Evening Weight Loss Formula™ and set his sights on success. . . . 'Nothing dramatic happened for about a month and a half and then all of a sudden, over two or three weeks, I lost 25 pounds,' said Copp, who lost a grand total of 70 pounds in six months." (Vernon Copp)(10/22/01 web site)

 

c. "Chuck Davies [:] Lost: 45 pounds Kept Off: 18 months . . . 'I pretty much ate what I wanted . . . and took the night time product at least three hours after dinner, and right before I went to bed.' . . . Chuck also watched what he ate for dinner . . . to accelerate the effects of the Evening Weight Loss Formula. . . . 'I lost 17 pounds in the first month' he says. 'I could hardly believe it because I was never starving to death like I was on all the other diets I'd tried.'" (Chuck Davies)(10/22/01 web site)

 

d. "The Research Studies [:] Mark Nutritionals has conducted more research in its first two years of operation than almost any nutritional company in America during its beginning years - 10 studies, 8 of which were clinical trials conducted by independent research teams. Taken together, these studies provide compelling evidence that, when used as instructed, the Body Solutions Weight Management System has minimal adverse side effects and can:

• Reduce excess body fat
• Maintain or enhance lean muscle mass . . ." (10/22/01 web site)

e. "Frequently Asked Questions . . .

 

Q: Do I have to diet and /or exercise when using this?

A: While diet and exercise will always be good for you, they are not required for your body to use the Body Solutions Evening Weight Loss Formula. The body is looking to repair itself every evening, and these are the tools it needs to build muscle and burn fat during this cycle . . .

Q: Is the weight going to come back after I stop using the Evening Formula?

A: Our products were specifically designed to be slow and gradual so that when the weight comes off it will stay off. The 'bounce back' or 'Yo-Yo' effect will not manifest itself . . ." (6/8/01 web capture)

f. "Evening Weight Loss Formula™ [:] When taken on an empty stomach without eating at least 3 hours before going to sleep, clinical trials found people lost fat without losing lean and the more closely they followed the system, the more success they had." (6/8/01 web capture)

16. To induce consumers to purchase Evening Formula, Defendants also advertise, promote and market Evening Formula through the use of product brochures. A June 1, 1999 product brochure for "Body Shaper," an early version of the Evening Formula product, includes, inter alia, the following statements and representations (the complete text of the portion of the brochure discussing Body Shaper is attached as Exhibit D):

"'I don't have the luxury of hours at a gym or exercise to slim down. After a month on the Body Shaper program, I don't have to. I've lost two dress sizes, sleep more soundly, and wake up rejuvenated & ready to seize the day!' Kim Vernie - Miami, FL"

17. To induce consumers to purchase Evening Formula, Defendants also have aired thirty- and sixty-second television advertisements for Evening Formula on television stations. The television advertisements contain, inter alia, the following statements and representations in "testimonials":

a. "The most sensible way to do it - and still be able to eat what you want to eat. . . . . You eat what you want to eat and still lose weight. . . . My favorite thing about it? . . . That I can eat what I want to eat and that I don't have to exercise that much and it works while I'm sleeping. . . . [I've lost] 25 pounds."

 

b. "I eat all I want . . . whatever I want. . . . I'm 32 pounds lighter."

 

c. "It's like a dream come true - it's a miracle! . . .Where else can you eat all the foods that you love and still lose weight? . . . [I've lost] 41 pounds."

The quoted testimonials appear in a 60-second television advertisement, produced by Defendant Siskind in October of 2000. Prominently superimposed over the videotaped endorsers is a "dancing" graphic representation of a bottle of Evening Formula.

18. Defendants have charged approximately $48, plus shipping and handling, for one 15-ounce bottle of Evening Formula. One bottle is approximately one month's supply of the product. Defendants' advertising and marketing indicate that consumers must take the product for 60 to 90 days in order to see "results."             

DEFENDANTS' VIOLATIONS OF THE FTC ACT

19. Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), prohibits unfair or deceptive acts or practices in or affecting commerce. Section 12(a) of the FTC Act, 15 U.S.C. § 52(a), prohibits the dissemination of any false advertisement in or affecting commerce for the purpose of inducing, or which is likely to induce, the purchase of food, drugs, devices, services or cosmetics. For purposes of Section 12 of the FTC Act, 15 U.S.C. § 52,  Evening formula is a "food" or a "drug" within the meaning of Sections 15(b) and (c) of the FTC Act, 15 U.S.C. §§ 55 (b) and (c). As set forth below, Defendants have engaged and continue to engage in violations of Sections 5(a) and 12 of the FTC Act in connection with the marketing and sale of Evening Formula.

False Representations Regarding Efficacy

Count 1

20. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraphs 13 through 17 above, Defendants have represented, expressly or by implication, that Evening Formula will cause substantial weight loss, including as much as 20 to 40 pounds, without the need to diet or exercise.

21. In truth and in fact, Evening Formula will not cause substantial weight loss, including as much as 20 to 40 pounds, without the need to diet or exercise. Therefore, Defendants' representation as set forth in Paragraph 20 is false or misleading and constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and is a false advertisement in or affecting commerce, in violation of Section 12 of the FTC Act, 15 U.S.C. § 52.

Count 2

22. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraphs 13 through 17 above, Defendants have represented, expressly or by implication, that Evening Formula will cause substantial weight loss even if users eat substantial amounts of high calorie foods such as pizza, beer, tacos, nachos, cheese grits, and donuts.

23. In truth and in fact, Evening Formula will not cause substantial weight loss, even if users eat substantial amounts of high calorie foods such as pizza, beer, tacos, nachos, cheese grits, and donuts. Therefore, Defendants' representation as set forth in Paragraph 22 is false or misleading and constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and is a false advertisement in or affecting commerce, in violation of Section 12 of the FTC Act, 15 U.S.C. § 52.

Count 3

24. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraphs 13 through 17 above, Defendants have represented, expressly or by implication, that Evening Formula will cause substantial long-term or permanent weight loss.

25. In truth and in fact, Evening Formula will not cause substantial long-term or permanent weight loss. Therefore, Defendants' representation as set forth in Paragraph 24 is false or misleading and constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and is a false advertisement in or affecting commerce, in violation of Section 12 of the FTC Act, 15 U.S.C. § 52.

False Representations Regarding Scientific and Clinical Studies

Count 4

26. Through their advertising and promotional materials, including but not limited to the representations set forth in Paragraphs 13 through 17 above, Defendants have represented, expressly or by implication, that Evening Formula is 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.

27. In truth and in fact, Evening Formula is not 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. Therefore, Defendants' representation as set forth in Paragraphs 26 is false or misleading and constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and is a false advertisement in or affecting commerce, in violation of Section 12 of the FTC Act, 15 U.S.C. § 52.

Unsubstantiated Representations Regarding Efficacy

Count 5

28. Defendants did not possess and rely upon a reasonable basis that substantiated the representations set forth in Paragraphs 20, 22, and 24 at the time the representations were made. Therefore, the making of the representations set forth in Paragraphs 20, 22, and 24 constitutes a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and the making of false advertisements, in violation of Sections 5(a) and 12 of the Federal Trade Commission Act, 15 U.S.C. §§ 45(a) and 52.

CONSUMER INJURY

29. Consumers throughout the United States have suffered and continue to suffer substantial monetary loss as a result of Defendants' unlawful acts or practices. In addition, Defendants have been unjustly enriched as a result of their unlawful acts or practices. Absent injunctive relief from this Court, Defendants are likely to continue to injure consumers, reap unjust enrichment, and harm the public interest.

THIS COURT'S POWER TO GRANT RELIEF

30. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), empowers this Court to grant injunctive and such other relief as the Court may deem appropriate to halt and redress violations of the FTC Act. The Court, in the exercise of its equitable jurisdiction, may award other ancillary relief, including consumer redress, disgorgement, and restitution, to prevent and remedy injury caused by Defendants' law violations.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Commission requests that this Court, as authorized by Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), and pursuant to its own equitable powers:

a. Award Plaintiff preliminary injunctive relief as may be necessary to avert the likelihood of consumer injury during the pendency of this action and to preserve the possibility of effective final relief from individual Defendants Harry Siskind and Edward G. D'Alessandro, Jr.;

 

b. Permanently enjoin Defendants from violating Sections 5 and 12 of the FTC Act,

15 U.S.C. §§ 45 and 52, in connection with the advertising and sale of any food, drug, device, cosmetic or other products, services or programs;

 

c. Award such equitable relief as the Court finds necessary to redress injury to consumers resulting from Defendants' violations of the FTC Act, including, but not limited to, the rescission of contracts, the refund of monies paid, and the disgorgement of ill-gotten gains and, as to Defendant Mark Nutritionals, Inc., allow Plaintiff a general unsecured claim in the Corporate Bankruptcy Case in the amount of such award, the payment of which shall be governed by and pursuant to the distribution and priority provisions of the Bankruptcy Code if the Corporate Bankruptcy Case has not been dismissed;

 

d. Award Plaintiff the refund of monies paid and the disgorgement of ill-gotten gains from each Defendant jointly and severally and, as to Defendant Mark Nutritionals, Inc., allow Plaintiff a general unsecured claim in the Corporate Bankruptcy Case in the amount of such award, the payment of which shall be governed by and pursuant to the distribution and priority provisions of the Bankruptcy Code if the Corporate Bankruptcy Case has not been dismissed;

 

e. Award Plaintiff the costs of bringing this action and, as to Defendant Mark Nutritionals, Inc., allow Plaintiff a general unsecured claim in the Corporate Bankruptcy Case in the amount of such award, the payment of which shall be governed by and pursuant to the distribution and priority provisions of the Bankruptcy Code if the Corporate Bankruptcy Case has not been dismissed;

 

f. Award Plaintiff pre- and post-judgment interest and, as to Defendant Mark Nutritionals, Inc., allow Plaintiff a general unsecured claim in the Corporate Bankruptcy Case in the amount of such award, the payment of which shall be governed by and pursuant to the distribution and priority provisions of the Bankruptcy Code if the Corporate Bankruptcy Case has not been dismissed; and

 

g. Grant such other and additional equitable relief as the Court may deem just and proper.    

Dated:

Respectfully Submitted:

WILLIAM E. KOVACIC
General Counsel

BRADLEY M. ELBEIN
Director, Southwest Region

THOMAS B. CARTER
Texas State Bar No. 03932300

DEBORAH W. DAWSON
New York State Bar No.1658889

FREDERIC DUNSKY
Texas State Bar No. 06262950

Federal Trade Commission
1999 Bryan Street, Suite 2150
Dallas, Texas 75201
(214)979-9372 (Carter)
(214)979-9395 (Dawson)
(214)979-9362 (Dunsky)
(214)953-3079 (fax)

Attorneys for Plaintiff