FTC Finally Goes After Roca Labs For Its Sketchy 'Weight Loss' Scheme & Misleading Promotions

from the the-latest-in-the-saga dept

For a while now, we've been covering the bizarre saga of Roca Labs, a Florida-based company claiming to offer a weight loss product that it pitches as an "alternative to gastric bypass surgery." I won't rehash everything, but the company first came to our intention for suing the site PissedConsumer.com over complaints on that site about Roca. What we found so ridiculous about the lawsuit was that Roca Labs has a ridiculous and almost certainly non-binding gag policy that it apparently offers to consumers who buy its product. In exchange for a "discount" Roca Labs gets to promote any positive results and (more importantly), you are forbidden from saying anything negative about Roca Labs. Roca's legal theory against PissedConsumer was that because people posted complaints about Roca Labs on the site, it was "tortious interference" with that contract. Since then, Roca Labs has made something of a name for itself in either threatening to sue, or actually suing, a large number of its critics. It has threatened us with a lawsuit (twice). It has threatened other reporters. It has sued customers who have complained. It has sued witnesses in that original case. It has sued PissedConsumer's lawyer, Marc Randazza.

Roca itself has gone through a large number of lawyers in this process, and the company has actually ended up in court against some of its former lawyers as well. And there's even more that we've written about in the past, and much more has happened since we last wrote about them. A few times we've considered writing updates based on crazy threats or lawsuits, but just haven't had the time. However, one question that has come up a few times: why hasn't the FTC and/or the FDA cracked down on Roca's questionable claims? Via a FOIA request, we revealed that the FTC was compiling a rather large file of customer complaints about Roca Labs... and apparently, things finally reached the tipping point.

Yesterday, the FTC finally filed a complaint against Roca Labs and the people behind it: Don Juravin and George Whiting. The FTC's complaint is a worth a read, because not only does it cover some of the ground we've already discussed, it reveals some new and even more questionable behavior -- such as anonymously running a sketchy website supposedly about gastric bypass surgery, that pushed people away from gastric bypass surgery, but had an "alternatives to gastric bypass" page, that served to solely promote Roca Labs' "product" -- which everyone admits is a mix of industrial food thickeners and some other stuff. Of course, to throw people off the scent that the Gastricbypass.me site was really run by Roca Labs, the company amusingly pretends to be critical of some aspects of Roca Labs. from the complaint:
Gastricbypass.me includes, among other content, a lengthy “Surgery Failures” page, and a “Surgical Alternatives” page. The “Surgical Alternatives” page is devoted to discussing favorably the “Roca Labs Surgery Alternative® Solutions.” The Roca Labs products are the only surgical “alternative” the site discusses. For example, the page states that its authors have “challenged the company’s claim to a ‘90% success rate’ by checking some of the 654,000 video results we got when searching for, ‘YouTube Roca Labs’.” The “Surgery Alternatives” page embeds videos also found on RocaLabs.com. It states that “[i]n 97% of the videos provided, evidence that the surgical alternative is successful is evident from day one. With some averaging weight loss of 0.5 to 1 pound per day, the Roca Labs Surgery Alternative® Solution is quite impressive.” It further states that the site’s “panel of experts” say that the Roca Labs claims are trustworthy “for the most part,” and that the Roca Labs “[m]edical claims are correct, FDA regulations are observed, but not all the articles on the site are updated.” ... There is no disclosure on the GastricBypass.me site that it is operated by the Defendants, is affiliated with RLI or RLNU, or that the site’s owners or operators sell Roca Labs products.
Another thing the complaint reveals: Roca Labs would tell people that it would give them discounts if they would videotape and promote their success stories on YouTube. By itself, that's not a totally crazy idea -- but nowhere did Roca tell those customers that they kind of have to admit that there's some form of compensation involved in their videos. This is the kind of thing that the FTC has been warning folks about for a few years now.
Defendants solicit “Success Videos” from purchasers by offering to pay them up to fifty percent of their money back for providing videos documenting their weight loss...

[....]

Neither the testimonial videos about weight loss resulting from use of Defendants’ products, nor the Roca Labs Websites, social media pages, or other advertisements that include or lead to them, adequately disclose that the persons depicted in the videos were offered or paid any compensation in exchange for their testimonial.
And, yes, the FTC is well aware of Roca Labs' gag clause and its threats and lawsuits against people complaining customers. In fact, it notes that the gag clause that was used prior to the lawsuit against PissedConsumer was much more egregious than the $3500 bill, and actually said you'd have to pay them $100,000 and that you agree that "any report of any kind on the web will constitute defamation/slander." That's not how defamation law works, but points for creativity, I guess. The gag order even suggests that you shouldn't talk badly about Roca's product because any negative results are due to the customer's "misunderstanding."
You agree and understand that you can not [sic] talk badly about the Formula because of any frustration you might have with the support department or your misunderstanding.
And, yes, the threats and the lawsuits, though as would be expected, the FTC focuses on are the ones against customers and PissedConsumer, rather than the threats and lawsuits against lawyers and reporters.
In numerous instances, Defendants have threatened to sue, for breach of the Gag Clauses, purchasers who stated that they had or would complain to third parties, such as the Better Business Bureau, or post negative comments about Defendants, their products, or their employees on internet websites. Defendants have also threatened complaining purchasers who have sought refunds by telling them that they would be subject to liability for extortion or defamation for threatening to post, or posting, truthful negative reviews about the Defendants, their products, or employees, or that their “discounts” would be revoked and that they would owe Defendants the “full” price of the Defendants’ products.

Defendants in some instances have filed lawsuits against purchasers who have posted such negative comments, alleging breach of the Gag Clauses. Defendants also have sued, for allegedly inducing purchasers to breach the Gag Clauses, a company that runs an online site that allows consumers to post complaints about businesses, including the Defendants’ business, online.
But the FTC complaint also notes that Roca Labs doesn't just threaten and sue its critics, but it plays dirty, revealing private information they may have submitted as part of their "Health Application" to get Roca's powder.
Lawsuits the Defendants have filed against purchasers have included, and made public, information those purchasers provided in response to the Defendants’ Health Application. Defendants also have disclosed information purchasers submitted in response to the Defendants’ Health Application to credit card processors and banks in disputes with purchasers over credit card chargebacks.
And that brings us to the actual charges. The FTC is arguing that the weight loss claims around Roca Labs and its products are "deceptive," calling them "false or misleading, or were not substantiated, at the time the representations were made." Second is a "false establishment" claim, saying that Roca Labs lied in stating that its "Formula" was "scientifically proven to have a ninety-percent success rate."

Next up: unfair use of non-disparagement provisions:
Defendants’ practices as described in paragraph 64 have caused or are likely to cause substantial injury to consumers that is not reasonably avoidable by consumers and that is not outweighed by countervailing benefits to consumers or competition
Count four is about the bogus gastricbypass.me website, where Roca didn't disclose that it was behind the site. Count five is for a failure to disclose material connections -- which appears to apply to both the "customer testimonials" Roca promotes and the fake site. What's not clear is if this also includes the sketchy celebrity endorsements we wrote about last year.

Count six is for "deceptive privacy," over the company revealing private information (including health and financial information) in the various lawsuits it has filed.

Finally, there's a claim over Roca's "deceptive discount." Remember that Roca argued that users had to agree to the gag clause in exchange for a "discount." However, as some of our own readers pointed out, it did not appear there was any realistic way to get Roca's product without agreeing to that agreement. But, the key concern of the FTC is Roca telling people that if they violate the gag order, they can be forced to pay the "full price." The FTC notes that this is a deceptive practice and "in fact, purchasers have not agreed to pay the difference between the purported “discount” price charged and the purported “full price” if they posted negative reviews about the Defendants or their products."

Given what we've seen, the FTC may have even held back on its claims. For example, while the complaint mentions the existence of "Dr. Ross" who at times claimed to be the company's "director of medical team" or, at other times, "an independent medical consultant" -- the complaint doesn't even bother to mention that Ross Finesmith was a pediatrician who lost his medical license for child porn.

The FTC has also asked for a temporary restraining order against Roca Labs, and that motion is well worth reading as well. In fact, that filing is even more direct in its attack on Roca Labs. On the claims about the "formula" the FTC states:
Unfortunately for consumers, Defendants are simply selling common, dietary fibers with exaggerated claims at a grossly inflated cost. Their weight-loss claims lack any scientific basis, and are often flat out false. The FTC retained Dr. Steven Heymsfield, an expert in obesity treatment and weight loss, who reviewed information on Roca Labs’ websites about the products and their ingredients, as well as numerous other published scientific articles on weight loss.... He found no reliable scientific evidence to support Defendants’ weight-loss claims of 21 pounds a month, or 100 pounds in seven to ten months.... According to Dr. Heymsfield, substantiating Defendants’ weight-loss claims would require well-designed and properly conducted human clinical trials on Roca Labs’ actual products (as opposed to its individual ingredients).... Individual testimonials, no matter how numerous or superlative, do not amount to reliable scientific evidence of a weight-loss product’s effect.... Defendants acknowledge that “[n]o clinical study has been performed on this product” ... and Dr. Heymsfield found no such trials.

Defendants will likely argue that some fibers in their products have been studied individually and shown to cause some weight loss; therefore aggregating those results supports their claims. But Dr. Heymsfield reviewed weight-loss studies on the individual ingredients and found very few trials that showed any effect. None of the results could in any way support the Defendants’ extravagant claims. For example, clinical trials on glucomannan, one of the fibers in Roca Labs Formula, do not show weight loss comparable to Defendants’ ad claims, and many show no weight loss at all...
So, now what? If history is our guide, perhaps we should expect Roca Labs to start threatening the FTC Commissioners with lawsuits directly. But, the reality is that Roca Labs is now in deep, deep trouble. And, what's most interesting, is that it's a lot less likely the FTC would have taken this on had Roca Labs not actually gone out and started suing its critics.



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  • icon
    Ninja (profile), 25 Sep 2015 @ 8:20am

    I'm disappointed. I expected Alan Cooper to show somewhere in this thing. Oh well, hope they hire Prenda for their defense ;)

    reply to this | link to this | view in chronology ]

  • icon
    SirWired (profile), 25 Sep 2015 @ 8:36am

    Roca is only in "big trouble" if you consider "big trouble" to be the threat of an FTC "settlement" to promise to Go Forth and Sin No More and give up whatever loose change under the couch is left after most of the profits have been shipped off-shore.

    There will be no significant consequences for their past activity, I can just about 100% guarantee, and they will certainly keep virtually all of the profits.

    And, should they choose to keep violating the law, the only additional consequence will be the need to pinky-swear to stop selling diet products entirely.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 25 Sep 2015 @ 8:36am

    And now we know what it takes to motivate the FTC into action, the problem being all of the "me too's" who now know where the line is and will tap dance all the way up to it.

    reply to this | link to this | view in chronology ]

  • icon
    Capt ICE Enforcer (profile), 25 Sep 2015 @ 8:38am

    First Amendment

    Gosh, don't you know Roca Labs is just utilizing it's first amendment right to say whatever it wants to, even without any factual basis. After all, Minute Maid Lemonade contains no lemon at all. But dish washing soap does. Perfectly legal. As for silencing other individuals first amendment right to say negative things about Roca Labs. The company is not trying to silence anyone, but instead they are trying to make the internet a tamed safe place for our children instead of the current wild west that it is now. Thank you Roca Labs for looking out for all of us.

    reply to this | link to this | view in chronology ]

  • identicon
    DigDug, 25 Sep 2015 @ 8:39am

    Can the BigMedia/Cable companies hear the SEC footsteps now?

    I wonder if the SEC will start an investigation into the false statements made by Big Cable/Media conglomerates to prop up their failing business model.

    I mean they've been reporting everywhere that no, we're not losing business at all. Cord cutting is a myth.

    Well, thanks to Nielsen waking up, we now have a data source that Big Media/Cable relies on that proves they've been lying through their teeth.

    That sure seems like false reporting to the SEC / shareholders to me.

    reply to this | link to this | view in chronology ]

    • identicon
      DigDug, 25 Sep 2015 @ 8:41am

      Re: Can the BigMedia/Cable companies hear the SEC footsteps now?

      I really hate when I click on a link for one story and somehow end up posting in another story.

      sigh

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2015 @ 8:48am

    Sounds like someone at roca labs is having an historical hissy fit

    reply to this | link to this | view in chronology ]

    • icon
      Doug (profile), 25 Sep 2015 @ 8:55am

      Re:

      Was having? ;)

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2015 @ 10:21am

      Re:

      Now they will threaten the FTC with lawsuits including defamation, tortious interference, lawyer fees and compensation for their time and cost fighting the FTC, and anything else they can think of. They will first sue for 100K but then offer to settle for a reduced price of $3500 and a discount on their product. Somehow I suspect the FTC will not be very amused by this offer.

      reply to this | link to this | view in chronology ]

  • icon
    lars626 (profile), 25 Sep 2015 @ 9:08am

    Don't kick the dog

    I can imagine a few things that are more stupid than suing Marc Randazza over something like this. Even if he is widely no for his soft spoken and tolerant demeanor it is a bad idea to sue. Similar to walking up and kicking a bear cub with its' mother near by.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2015 @ 9:41am

    Stupid bull, don't gore the cape!

    I'm kinda surprised that even Techdirt misses the matador on this one...

    > that Ross Finesmith was a pediatrician who lost his medical license for child porn.

    The emphasis should not be on the child porn. It's an issue, but it's not relevant here. The emphasis should be on the fact that Finesmith wasn't qualified to opine about gastroenterology, any more than a GP might be.

    Yes, there's a doctor in the house. But you've aged out of his area of specialty.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 25 Sep 2015 @ 10:25am

    Typical result

    What typically happens with snake oil peddlers like this is the original company shuts down, then a NEW company (maybe called Boca Labs) opens up carrying the same exact product with a slightly different name doing the same thing the old company did. This usually happens three or four times before anyone goes to jail. Depending on who's behind the snake oil, this might continue even after someone goes to jail.

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 25 Sep 2015 @ 11:13am

    And, yes, the FTC is well aware of Roca Labs' ... lawsuits against people complaining customers.

    Apparently someone mis-edited something in the sentence above?

    reply to this | link to this | view in chronology ]

  • icon
    OldMugwump (profile), 25 Sep 2015 @ 11:26am

    This is way, way overdue

    Fraud - deliberate deception to secure unfair or unlawful gain - has been a crime under common law for hundreds of years.

    And this is a perfect example of it. Why has it taken this long for the FTC to prosecute?

    On my blog: Capitalists suck donkey balls

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2015 @ 5:48pm

    Carma Sucks

    Those who live by lawsuits, die by lawsuits.

    reply to this | link to this | view in chronology ]

  • identicon
    Mark Wing, 25 Sep 2015 @ 7:50pm

    Clearly this is all just a clever ploy to end up on a South Park episode. Beefcake!

    reply to this | link to this | view in chronology ]

  • identicon
    Cindi Koroll, 27 Sep 2015 @ 12:10pm

    Roca Labs

    What do you think the future is of this litigation? I have been sued by Roca as well.
    Attorney Cynthia Koroll

    reply to this | link to this | view in chronology ]

  • identicon
    Ahmed Mohiuddin, 31 Jan 2016 @ 2:11am

    Great decision

    This step is going to open a lot of secrets. People will start to face the real truth.

    reply to this | link to this | view in chronology ]

  • identicon
    Bill Janous, 14 Dec 2016 @ 1:09pm

    Don Jurivan just bought a mansion with our money in Orlando

    It looks like the scumbag had to escape and quietly bought a multi million dollar mansion with our money in lake county in a place called bella Colina! Look it up and let him know what you think! What a scum bag

    reply to this | link to this | view in chronology ]


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