Miles Inc

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IN THE MATTER OF :IILES INC.

CONSENT ORDER , ETC. , I:- REGARD TO ALLEGED VIOLATIO:- OF Sees. 5 AND 12 OF THE FEDERAL TRADE COMMISSION ACT Docket C-3828. C01nplaint, Jan. 1991-Decision, Jan. , 1991 This consent order prohibits, among other things, an Indiana corporation from making any benefit claims relating to the consumption of any vitamin or mineral supplement, and from making any representation concerning the need for, or benefit from, consumption of any One- Day vitamin product, unless respondent possesses competent and reliable scientific evidence to substantiate the representation.

Appearances For the Commission: Brinley H. Williams and Mark D. Kindt. For the respondent: James M. Johnstone Wiley, Rein Felding, Washington, D. C. and Brian S. Schuster Elkhart, I!\. COMPLAI The Federal Trade Commission, having reason to believe that Miles Inc. , a corporation ("respondent"), has violated the provisions of the Federal Trade Commission Act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, alleges:

PARAGRAPH I. Respondent is an Indiana corporation, with its office or principal place of business located at 1127 Myrtle Street, Elkhart Indiana.

PAR. 2. Respondent has advertised, offered for sale, sold or distributed vitamin and mineral supplements, including One- Day Maximum Formula, One- Day Stressgard, One- Day Essential One- Day Plus Extra C , and One- Day Within (hereinafter referred to collectively as "One- Day PAR. 3. The acts and practices of respondent alleged in this complaint have been in or affecting commerce. PAR. 4. Respondent has disseminated or caused to be disseminated advertisements for One- Day, a product subject to the provisions of FEDERAL TRADE COMMISSION IJECISIO:\S Complaint 111 FTC.

Section 12 of the Federal Trade Commission Act, 15 V. C. 52. These advertisements have been disseminated by various means in or affecting commerce, including magazines distributed across state lines, and radio and television broadcasts transmitted across state lines, for the purpose of inducing the purchase of such product by members of the public.

PAR. 5. Typical of respondent' s advertisements, but not necessarily all- inclusive thereof, are the advertisements attached hereto as Exhibits A through D. The aforesaid advertisements, and others contain the following statements and depictions: (A) Taday s world can take a lot out of you. Defending your lungs against air pollution requires vitamins A, E , and C. Daily stress can chip away at your B vitamins. And rigorous physical training can actually knock essential minerals right out of your system. That' s why Onc- Day vitamins arc uniquely formulated to help put back what your world takes away. So eat a balanced diet and take One- Day, everyday. Did you take your Onc- Day today? (Exhibit A. (B) Strenuous exercise can actuaHy knock essential minerals right out of your system. But One- Day vit.amins are uniquely formulated to help put haek what your world takes away. Did you take your One- Day today? (Exhibit H) (C) I need that rrpOJi on my desk in two hours. T\', o hoUls! The stress of living in today s world can take a lot out of you. Whaddya mean the flight' s cancelled? r have a tcn o clock rr,ceting. Your B vitamins, for example, are being chipped away by everyday problems ana presSUles. Bu One- Day puts them back. One- Day vitamins are uniquely formulated to put back what your stressful world takes away.. (Exhibit G.) (D) With any rigorous physical exercise, your body can lose :ts supply of essential minerals. But One- Day puts them back. (Exhib't D.) PAR. 6. Through the use of the statements referred to in paragraph five, and accompanying depictions and other statements and depictions in advertisements and promotional materials not specifically set forth herein, respondent has represented, directly or by implication that:

(A) Consumption of vitamins A, C and E in the form and amount contained in One- Day protects human lungs against the adverse effects caused by typical air pollution;

(B) The stress of daily living depletes vitamin B in the body so that consumption of a daily vitamin supplement, such as One- Day, is necessary or beneficia!;

(C) Ordinary rigorous physical exercise depletes essential minerals in the body so that consumption of a daily vitamin supplement, such as One- Day, is necessary or beneficial.

:IILES INC.

Complaint PAR. 7. Through the use of the statements set forth in paragraph five, and accompanying depictions and other statements and depictions not specifically set forth herein, respondent has represented directly or by implication, that at the time it made the representations set forth in paragraph six, respondent possessed and relied upon a reasonable basis for each such representation. PAR. 8. In truth and in fact, at the time respondent made the representations set forth in paragraph six, it did not possess and rely upon a reasonable basis for making each such representation. Therefore, respondent's representations as set forth in paragraph seven were and are false and misleading.

PAR. 9. The acts and practices of respondent as alleged in this complaint constitute unfair and deceptive acts or practices in or affecting commerce and the dissemination of false advertisements in violation of Sections 5(a) and 12 of the Federal Trade Commission Act.

Commissioner Starek did not participate.

.. : ,,:. : .: , :: , :;:. : . FEDERAL TRADE emdMISSlON /JEeISIO:\S Complaint 114 F.T.C.

EXHIBIT A i..

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MILES I 1C.

Compaint EXHIBIT B (CLOSED CAPTIONED) OPE:- 0:- WmlA:- RCKKIKG 1:- (:-IUSIC UP) PLACE. ANKCR (VO): Fad: TO WOMEN 1:- AEROBICS CLASS. Strenuous exercise can SUPER: c 1989 MILF:S , I"IC. aetuany knock CONSU!IER HEALTH CARE DIVISIOK.

TO MAK LlFTIKG WEIGHTS. essentia! minerals CUT TO CU OF Wm!A:- ON right out of youi system. EXERCISE MAeHIKE.

TO CU HAND TAKIKG PRODUCT But One- Day vitamins FRm! LOCKER.

CUT TO O:-E- DAY ART CARD are uniquely formulated SLIDE LEFT.

TO A:-IMATEI LIST OF VITA:IIKS to hep put back what your ZIPPI:-G ONTO SCREEN. word takes away. CUT TO :-!A:- WALKING . HE HAS Did you take your One- Day JUST BEEK RU:-NI)iG. today SUPER. DID YOU TAKE YOUR ONE- DAY TODAY' IORTISE PRODUCT SECT EXHIBIT C MUSIC: (CNDER THROUGHOUT) SFX: (OFI'CE) BOSS: I need that report on my desk in two hours. Two-- AN"ICR The stress of Living ir: today s word can take a !ot out of you. SFX: (AIRPORT) WOMAN: \Vhaddya mean, the flight s canceJied? I have a 10:00 meeting. AK:-CR. Your B vitamins, for exam pie, arc being chipped a\vay by everyday problems and pressurcs. But One- Day puts them back. One- Day vitamins are uniquely formulated La help put back \vhat your stressfu! world takes away.

SFX: (TRAFFIC) MAK: (ON PlIOI\' E) Listen, I need a tow truck. Yeah, my fan beJt broke, and.. A:-NCR Did you take vour Onc- Day today? EXHIDIT D IUSIC: (l:KDER THROUGHOUT) FEDERAL TRADE eommission DECISIONS Decision and Order Il4 F. SFX, (FOOTSTEPS RUN;-ING ON PAVEMENT) ANNCR \Vhcn you run...you lose.

SFX, (AEROBICS INSTRUCTOR BARKING CmJ:IANDS) ANNCR: Whcr: you workout..you lose.

SFX, (PUNCI!NG OF SPEED BAG) ANNCR: When you train, hard and fast...you lose. SFX: (ALL ABOVE SFX CmmIKED) ANNCR: With any rigorous physical exercise, your body (' an Jose its supply of essential minerals.

MeSIC: (BClLDS TO REPLACE SFX) AKKCR: But One- Day puts them back. Ol1o- Day vitamins are uniquely formulated to help put back what your world takes away. SFX, (GRUNT, THEK CLAKG OF BARBELLS) ANKCR: Did you take your Onc- Day tc)(lay': DECISIOc; AND ORDER The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondent named in the caption hereof, and the respondent having been furnished thereafter with a copy of a draft of complaint which the Cleveland Regional Office proposed to present to the Commission for its consideration and which, if issued by the Commission. would charge respondent with violation of the Federal Trade Commission Act; and The respondent, its attorneys, and counsel for the Commission having thereafter executed an agreement containing a consent order an admission by the respondent of all the jurisdictional facts set forth in thc aforesaid draft of complaint, a statcment that the signing of said agrcement is for settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such complaint, and waivers and other provisions as required by the Commission s Rules; and The Commission having thereafter considered the matter and having determined that it had reason (0 believe that the respondent has violated the said Act, and that complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, now in further conformity with the procedure prescribed in Section 2. 31 of its Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings, and enters the following order: 1. Respondent is a corporation organized, existing and doing MILES INC.

Decision and Order business under and by virtue of the laws of the State of Indiana, with its office and principal place of business located at 1127 Myrtle Street Post Office Box 40 , Elkhart, Indiana.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent, and the proceeding is in the pu blic interest.

ORDER It is order-ed That respondent Miles Inc. , a corporation, its successors and assigns, and its officers, agents, representatives and employees, directly or through any corporation, subsidiary, division or other device, in connection with the advertising, offering for sale, sale or distribution of vitamin and/or mineral supplements, do forthwith cease and desist from representing, directly or by implication, that consumption of any such product:

(A) Affords any protection or benefit to human lungs; (B) Is necessary or beneficial in replacing any vitamin and/or mineral lost through physical cxercise;

(C) Is necessary or beneficial in replacing any vitamins and/or minerals lost as a result of, or provides any benefit with regard to, the stress of daily living;

unless, at the time such representation is made, respondent possesses and relies upon a reasonable basis consisting of competent and reliable scientific evidence to substantiate the representation; competent and reliable scientific evidence shall mean those tests, analyses, research studies or other evidence, conducted and evaluated in an objective manner by persons qualified to do so using procedures generally accepted hy others in the profession or science to yield accurate and reliable results.

II.

It is furlheT ordered That respondent Miles Inc. , a corporation, its successors and assigns, and its officers, agents, representatives and employees, directly or through any corporation, subsidiary, division or other device, in connection with thc advertising, offering for sale, sale or distribution of One- Day brand vitamins, including specifically, FEDERAL TRADE COMMISSION DECISIO:\S Decision and Order Il4 F. but not limited to, One- Day Maximum Formula, One- Day Stressgard, One- Day Essential, One- Day Plus Extra C , and One- Day Within, do forthwith cease and desist from making any representation, directly or by implication, concerning the need for or benefits to be derived from consumption of such product unless, at the time such representation is made, respondent possesses and relies upon a reasonable basis consisting of competent and reliable scientific evidence to substantiate the representation; competent and reliable scientific evidence shall mean those tests, analyses, research, studies or other evidence, conducted and evaluated in an objective manner by persons qualified to do so using procedures generally accepted others in the profession or science to yield accurate and reliable results.

II.

It 'is fi.,rther ordered That, for three (3) years from the date that the representations are last disseminated, respondent shall maintain and upon request make available to the Commission for inspection and copymg:

(A) All materials relied upon to substantiate any claim or representation covered by this order; and (B) All tests, reports, studies, surveys or other materials in its possession or control that contradict, qualify or call into question such representation or the basis upon which respondent relied for such representation.

IV.

It is filrther ordered That respondent shall distribute a copy of this order to each offcer and other person responsible for the preparation or review of advertising material for products subject to this order. It is j,,,rther ordered That respondent shall notify the Commission at least thirty (30) days prior to the effective date of any proposed change in the corporate respondent such as dissolution, assignment or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiaries, or any other change in the MILES IKe.

Decision and Order corporation which may affect compliance obligations ansmg out of this order.

VI.

It is further ordered That respondent shall, within sixty (60) days after service of this order, file with the Commission a report, in writing, setting forth in detail the manner in which it has complied with this order.

Commissioner Starck did not palticipate.

Federal TRADE COM IISSIO?\ DEeISIONS Complaint 114 FTC.