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
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."
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.