Infomercial Producer/Host Michael Levey and Firm
to Pay $275,000 to Settle FTC Charges
FTC News Release
June 29, 1993
Michael S. Levey, who produces and hosts program-length television commercials — or infomercials — for a range of products, has agreed to pay $275,000 for consumer redress and to abide by broad restrictions on his future marketing projects, as part of an agreement to settle Federal Trade Commission charges. The FTC alleged that Levey, who does business as Positive Response Marketing, Inc., made a variety of false and misleading representations in four separate infomercials that he produced to market a diet product, a baldness product, an impotence treatment and a kitchen mixer. The FTC also alleged that the infomercials were deceptive in that they purported to be independent programming rather than paid ads.
Levey and his firm are based in Topanga, California. Positive Response Marketing also does business as Positive Response Television and Positive Response Advertising, according to the FTC complaint detailing the charges in the case. These charges follow similar FTC allegations against two other companies for which Levey produced the infomercials at issue — Twin Star Productions, Inc. and Media Arts International, Ltd. (the latter is a subsidiary of National Media Corporation).
The products promoted through the challenged infomercials, as listed in the FTC complaint, are the EuroTrym Diet Patch, a purported weight-loss product promoted in an infomercial called "The Michael Reagan Show"; Foliplexx, promoted as a baldness remedy in the infomercial titled "Breakthrough '88"; Y-Bron, marketed in the "Let's Talk" infomercial as a cure for impotence; and an immersion-style kitchen mixer touted in the "Amazing Discoveries: Magic Wand" infomercial. Levey allegedly produced the infomercials for the first three products between 1987 and 1989 as an employee and shareholder of Twin Star Productions. The Magic Wand was distributed by Media Arts International, and the infomercial for this product was part of the "Amazing Discoveries" series hosted by Levey, the complaint states. All of the infomercials ran nationwide on network, independent and cable stations, according to the complaint.
In addition to the general allegation that these infomercials were deceptive because they were misrepresented as independent programming rather than paid advertising, the FTC complaint includes the following specific charges about each one.
- EuroTrym Diet Patch
- According to the complaint, the infomercial for this product represented that it would prevent hunger pains and enable consumers to lose substantial amounts of weight in a majority of cases, and that tests had shown that the patch promotes weight loss. These representations were all false and unsubstantiated, the FTC charged.
- The FTC charged that the Foliplexx infomercial represented that this product would curtail hair loss and promote new hair where it already had fallen out, thus preventing or reversing baldness. The infomercial also allegedly represented that the product was an effective baldness remedy in a large percentage of cases, and that tests had established the effectiveness of the product. Again, the FTC alleged, the representations were all false and unsubstantiated.
- The Y-Bron infomercial allegedly represented, among other things, that the product would cure or reverse impotence and increase sexual drive, and that tests had proven it was an effective remedy for impotence. These representations were false, and Levey did not have substantiation for them, the FTC charged.
- Magic Wand
- The infomercial for this product included demonstrations of the product at work, allegedly representing that it could crush a whole pineapple in seconds and that it could whip skim milk for use as a mousse-like dessert or in frosting. The product could do neither of these things, the FTC alleged, charging that the demonstrations were altered. In fact, according to the complaint, the infomercial demonstrations used crushed pineapple pulp with a slice of pineapple on top to resemble a whole, fresh pineapple, and substituted whipped topping and prepared frosting for the skim milk.
All four infomercials also allegedly included deceptive endorsements. Specifically, testimonials and endorsements included in the Diet Patch, Foliplexx and Y-Bron infomercials allegedly misrepresented the typical experience of consumers who have used these products, and also represented that the speakers were independent of the marketers when that was not always the case, the FTC charged. In addition, according to the complaint, the Magic Wand infomercial included a statement that it was "approved by the National Association of Advertising Producers for its integrity and excellence." In fact, the FTC charged, that association was not independent of the marketers and it did not have the qualifications to make such an evaluation.
The Settlement Agreement
In addition to the $275,000 redress payment that would be required under the proposed consent agreement to settle these charges, the settlement contains provisions that would:
- prohibit Levey and his firm from disseminating any of the three Twin Star infomercials, or any other infomercials that misrepresent themselves to be something other than paid ads;
- prohibit the respondents from making any of the alleged false claims included in any one of the four infomercials for the same or substantially-similar products;
- prohibit them from selling any baldness or impotence product not approved by the Food and Drug Administration;
- with regard to any baldness, impotence or weight-loss product the respondents sell, require them to have competent and reliable scientific evidence to support any representations that are similar in nature to the alleged unsubstantiated claims cited in the complaint;
- require the same standard of substantiation for any representations about the efficacy or safety of any food, drug or device they sell (FDA-approved claims for such products would be permitted under the order);
- require competent and reliable evidence to support any representations about the performance or efficacy of any other product or service;
- require Levey and Positive Response to disclose in any advertisement for a weight-control product that dieting or exercise or both are required to lose weight (unless the respondents have evidence demonstrating their product works without diet or exercise);
- require them to disclose any material connection between them and any endorser they use in the course of marketing a product or service, prohibit them from misrepresenting that an endorser's experience is typical of consumers who use the product or service, and require that "expert" endorsements come only from entities with appropriate qualifications that actually have evaluated the product or service;
- prohibit deceptive demonstrations, such as those that include undisclosed, material substitutions; and
- with regard to any infomercial 15 minutes in length or longer that the respondents produce or sell, require them to disclose in the first 30 seconds and immediately before any ordering information the fact that the program is a paid advertisement.
Finally, the proposed consent agreement includes various reporting provisions designed to assist the FTC in monitoring the respondents' compliance.
The Commission vote to accept the proposed consent agreement for public comment was 4-0, with Commissioner Mary L. Azcuenaga recused.
An FTC fact sheet titled "Infomercials" explains what these programs are and how consumers can better evaluate them.
- FTC File Nos. 902-3177; 882-3199. FTC Docket No. C-3459.
This page was posted on August 27, 2006.