Ninzu, Inc

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IN THE MA TTER OF NINZU, INC., ET AL.

CONSENT ORDER, ETe., IN REGARD TO ALLEGED VIOLA non OF SECS. 5 AND 12 OFTHE FEDERAL TRADE COMMISSION ACT Docket 3566. Complaint. April 1995-- Decision, April 7, 1995 This consent order requires, among other things, the Maryland-based marketers to possess and rely upon competent and reliable scientific substantiating evidence to support any performance, benefits, effcacy, or safety claims they make for any weight loss or weight control product or program or any acupressure device they market in the future.

Appearances For the Commission: Richard L. Cleland. For the respondents: Michael B. Metzger President, Baltimore MD.

COMPLAINT The Federal Trade Commission, having reason to believe that Ninzu, Inc. d/b/a Davish Enterprises and Davish Health Products Davish Merchandising, Inc., Order By Phone, Inc. , and Auricle Clip, Inc., corporations; and Michael Metzger, individually and as an officer and director of said corporations ("respondents ), have 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 1. Respondent Ninzu, Inc. is a Maryland corporation doing business under its own name and under the names Davish Enterprises and Davish Health Products. Its principal place of business is located at I East Chase Street, Suite 200, Baltimore Maryland.

Respondent Davish Merchandising, Inc. is a Maryland corporation with its principal place of business located at I East Chase Street, Suite 200, Baltimore, Maryland. Complaint 119 FTC. Respondent Order By Phone, Inc. is a Maryland corporation and the parent corporation of Auricle Clip, Inc. Its principal place of business is located at I East Chase Street, Suite 200, Baltimore, Maryland.

Respondent Auricle Clip, Inc. is a Maryland corporation with its principal place of business located at 1 East Chase Street, Suite 200, Baltimore, Maryland.

Respondent Michael Metzger is or was at relevant times herein an officer and director of Ninzu, Inc. , Davish Merchandising, Inc., Order By Phone, Inc., and Auricle Clip, Inc. Individually or in concert with others, he participated in and/or formulated, directed and controlled the acts and practices of the respondent corporations. His address is 12135 Heneson Garth, Owings Mills, Maryland. PAR 2. Respondents have advertised, offered for sale, sold, and distributed the Ninzu, Auricle Clip, and B- Trim, acupressure weight- Joss devices that clip onto the ear. The Ninzu, Auricle Clip, and B- Trim are devices within the meaning of Sections 12 and 15 of the Federal Trade Commission Act, 15 U. c. 52 and 55. PAR. 3. The acts and practices of respondents alleged in this complaint have been in or affecting commerce, as "commerce " is defined in section 4 of the Federal Trade Commssion Act, 15 U. 44.

NINZU PAR. 4. Respondents have disseminated or have caused to be disseminated advertisements and promotional materials for the Ninzu, including but not necessarily limited to the attached Exhibits A and B. The aforesaid advertisements contain the following statements:

A. NO DIET' NO EXERCISE! LOSE 30 POUNDS IN 30 DA YS! No conventional diet is better than any other. Don t kid yourself, they just do not work (Read the June issue of Consllmer Reports). NINZUTM is the first effortless wcight loss product that really works. Now available in the U. S. You must be satisfied with your results il jQ 30 days il will completely refund your monev... no Questions asked! NINZUTM is a tiny acupressure device that fits snugly on your ear. This product utilizes the ancient science of acupressure to make you lose weight. It safe and it works...we guarantee it.

NINZU, INC.. ET AL. 423 421 Complaint NINZUni does not involve the use of drugs. There are no needles, no shakes, no special diet foods to buy again and again. Wearng NINZU for less than 3 hours a day wil produce dramatic results. JOIN OUR LIST OF SATISFIED CUSTOMERS I have tried every diet known to man. This is the first time I actually lost weight and I'm keeping it off. Mr. CD. of Texas. I lost 32 pounds last month by using NINZU. My husband says that I've never looked better. Mrs. J.R. of Ohio.

At first I thought it was a joke but after dropping 47 pounds in 2 months, I'm a true believer. Mr. T.U. of Maryland. (Exhibit A). B. Would you put a needle in your ear to help you lose weight? Medical doctors in China use acupuncture every day to successfully help millons of patients.

Now for the first time in America you can actually lose weight using the proven principles of acupuncture without needles. Introducing Ninzu, an amazing device guaranteed to help you lose weight by controlling your hunger. Just attach the small device to the triangular portion of your outer ear for one hour before eating, during the meal, and one hour after eating. It's completely painless, and totally effective. In just seconds your hunger pains disappear. You eat less, you lose weight quickly and safely. Here s how it works. In Chinese medicine the hunger point is the tragus. The tragus is connected to the major nerve ending that controls your stomach and upper intestine. When you apply pressure to the nerve ending it actually inhibits your stomach' s contractions. Your brain receives the signal that your stomach is full reducing your craving. Imagine. no calorie counting. no diet shakes, no special fads, no pils or drugs. Just a safe, effective method that really works. I dropped two dress sizes, so simple, yet so incredibly effective. You can t notice it but I'm wearing it right now and I literally cut my food intake in half. " (Exhibit B).

PAR. 5. Through the use of the statements contained in the advertisements referred to in paragraph four, including but not necessarily limited to the advertisements attached as Exhibits A and , respondents have represented, directly or by implication, that: A. Ninzu causes significant weight loss;

B. Ninzu causes significant weight loss without the need to diet or exercise;

C. Ninzu controls appetite or eliminates a person s craving for food; and D. Ninzu is scientifically proven to cause significant weight loss and control appetite.

Complaint 119 FTC. PAR. 6. In truth and in fact:

A. Ninzu does not cause significant weight loss; B. Ninzu does not cause significant weight loss without the need to diet or exercise;

C. Ninzu does not control appetite or eliminate a person s craving for food; and D. Ninzu is not scientifically proven to cause significant weight loss and control appetite.

Therefore, the representations set forth in paragraph five were, and are, false and misleading.

PAR. 7. Through the use of statements contained in the advertisements referred to in paragraph four, including but not necessarily limited to the advertisements attached as Exhibits A and , respondents have represented, directly or by implication, that at the time they made the representations set forth in paragraph five. (A), (B), and (C), they possessed and relied upon a reasonable basis that substantiated such representations.

PAR. 8. In truth and in fact, at the time they made the representations set forth in paragraph five (A), (B), and (C), respondents did not possess and rely upon a reasonable basis that substantiated such representations. Therefore, the representation set forth in paragraph seven was, and is, false and misleading. PAR. 9. Through the use of statements contained in the advertisements referred to in paragraph four, including but not necessarily limited to the advertisements attached as Exhibits A and , respondents have represented, directly or by implication, that testimonials from consumers appearing in advertisements for the Ninzu reflect the typical or ordinary experience of members of the public who have used the product.

PAR. 10. In truth and in fact. testimonials from consumers appearing in advertisements for the Ninzu do not reflect the typical or ordinary experience of members of the public who have used the product. Therefore, the representation set forth in paragraph nine was, and is, false and misleading.

NINZU, INe., ET AL. 425 421 Complaint AURICLE CLIP PAR. II. Respondents have disseminated or have caused to be disseminated advertisements and promotional materials for the Auricle Clip, including but not necessarily limited to the attached Exhibit C. The aforesaid advertisement contains the following statements:

AURICLE CLIpTM The Effortless Weight Loss Product A Board Certified internist born in China has uncovered the secret of using acupressure for quick and effortless weight loss. The introduction of the Auricle Clip makes available to the public the work of Dr. Daniel S.J. Choy. a qualified medical professional. The Auricle Clip is the product that will make dieting obsolete.

Through the science of acupressure, the Auricle Clip allows the user to lose weight without having to think about calories or grams of fat. Now, people who have failed as dieters because they could not stand to deprive themselves of the foods they love, wil be able to take control of their Ii yes and become happier thinner people.

The Auricle Clip attaches to a pressure point on the tragus, the triangular portion of the outer car, where it slows the wave-like muscular movement of food from the stomach into the intestines (peristalsis). This simply means that the stomach thinks that it is half.full before the user even begins eating. After a few bites the user feels full. In effect, the stomach seems smaller so the user eats less. The Auricle Clip does not involve the use of drugs. There are no needles, no shakes, no special diet foods to buy again and again. By wearing the Auricle Clip on the tragus of each ear a half hour before eating and one hour after eating the user wil change rns/her eating habits, which is the real key to losing weight and keeping it off. (Exhibit C).

PAR. 12. Through the use of the statements contained in the advertisements referred to in paragraph eleven, including but not necessarily limited to the advertisement attached as Exhibit C, respondents have represented, directly or by implication, that: A. Auricle Clip causes significant weight loss; B. Auricle Clip causes significant weight loss without the need to diet;

C. Auricle Clip controls appetite; and D. Auricle Clip is scientifically proven to cause significant weight loss and control appetite.

PAR. 13. In truth and in fact:

Complaint 119 F.T. A. Auricle Clip does not cause significant weight loss; B. Auricle Clip does not cause significant weight loss without the need to diet;

C. Auricle Clip does not control appetite; and D. Auricle Clip is not scientifically proven to cause significant weight loss and control appetite.

Therefore, the representations set forth in paragraph twelve were, and are, false and misleading.

PAR. 14. Through the use of statements contained in the advertisements referred to in paragraph eleven, including but not necessarily limited to the advertisement attached as Exhibit C, respondents have represented, directly or by implication, that at the time they made the representations set forth in paragraph twelve (A), (B), and (C), they possessed and relied upon a reasonable basis that substantiated such representations.

PAR. 15. In truth and in fact, at the time they made the representations set forth in paragraph twelve (A), (B), and (C), respondents did not possess and rely upon a reasonable basis that substantiated such representations. Therefore, the representation set forth in paragraph fourteen was, and is, false and misleading. TRIM PAR. 16. Respondents have disseminated or have caused to be disseminated advertisements and promotional materials for the B- Trim, including but not necessarily limited to the advertisement attached as Exhibit D. The aforesaid advertisement contains the following statements:

SUCCESSFUL DIETING (NAPS)--lf you re ready to lose your share of the millions of pounds Amel;cans are overweight, ex pens suggest you follow this sensible advice: 1. If you re thinking of a major weight loss, see a doctor before you stall. fDRA WING OF A WO:Yton STANDING ON A BATHROOM SCALE OVER THE FOLLOWING CAPTION: A modem invention based on the ancient science of acupressure can reduce your craving for food. 2. Make sure the diet you choose contains the proper amount of protein, fats carbohydrates, water and vitamins. The U.S. Dept. of Health recommends that no more than 30 percent of your calories should come from fat. NINZU, INe. , ET AL. 427 421 Complaint 3. Be aware of new techniques for dieters. One new product is reported to be able to help you lose weight without feeling hungry. Called B.Trim, this inexpensive acupressure product was developed by a Chinese born, board certified internist on the staff of two New York hospitals. When you attach a small specially designed clip to the triangular portion of your outer ear, a message is sent to your brain via the vagus nerve that tells your stomach it is partially full. This effect makes dieting practically effortless. The device is worn for a half hour before and an hour after meals. (Exhibit D).

PAR. 17. Through the use of the statements contained in the advertisements referred to in paragraph seventeen, including but not necessarily limited to the advertisement attached as Exhibit D respondents have represented, directly or by implication, that: A. B- Trim causes significant weight loss; and B. B-Trim reduces the user s craving for food and causes weight loss without the user feeling hungry.

PAR. 18. In truth and in fact:

A. B- Trim does not cause significant weight loss; and B. B- Trim does not reduce the user s craving for food or cause weight loss without the user feeling hungry. Therefore, the representations set forth in paragraph seventeen were and are, false and misleading.

PAR. 19. Through the use of statements contained in the advertisements referred to in paragraph sixteen, including but not necessarily limited to the advertisement attached as Exhibit D, respondents have represented, directly or by implication, that at the time they made the representations set forth in paragraph seventeen they possessed and relied upon a reasonable basis that substantiated such representations.

PAR. 20. In truth and in fact, at the time they made the representations set forth in paragraph seventeen, respondents did not possess and rely upon a reasonable basis that substantiated such representations. Therefore, the representation set forth in paragraph nineteen was, and is, false and misleading. Complaint IJ9 FTC. PAR. 21. The acts and practices of respondents as alleged in this complaint constitute unfair or deceptive acts or practices and the making of false advertisements in or affecting commerce in violation of Sections 5(a) and 12 of the Federal Trade Commission Act. \!: ,:, :. ,. .... .... , ...: ....;;;_.. : . ,_...... , . _......;;;, : ,,.,! . _. ,. ,,... ( ,. :,. NINZU, INe., ET AL. 429 421 Complaint EXHIBIT A L"'iDIT i\ llf No dMi 15 bett.th J lost 32 pounds last month by using 0I1. c:0O" 11d YOtnelf, l!y Jus NINZU. My husband says tht do not wor (Aea It js. 0/ II I'vaneverlookedbetter. Con!IImeR8f), Mra. J.R. of Ohio. - NJNZ" iJ IN f'l ' 1I0r -Vr10 pmud!hr8lwo Nc At first J rhought It was jok Pu; f" ..IIN'- In h u. s.. :t bi after dropping 47 pounds In 2 mon aJ :n i: JC WJ Qr J''!strebeliever.- Mr. ofMaryanct: WW :ol rffefi;st can t wa to flQ1II PO UN DS years wear my swim suit. Your prouc Is '- 1ICII)BStfi sr a1drvC8YO\ - 88. produi: Ut !h II r: acpr8S8 10 terrific ar I'll nevar ha to diet agBJ mae yoo 10 wtOr Ita WI! an Ms. S.N. of New' Yor1 , WI... "'8 id. D.M' NINU" r1flWDrld. hl. NlNZ- dMr1 Streit, lit 200, g1.8" r: QIEaCnue nHla!'sh8S, no cfl8 to to CU II tr 8Qh a:- t..'U21212. (.'0):'NZ,u961, Th "' 'fr: , Of b8, yo r.

1r WII CUBTn" DAYS! a.buW8 I, j' 11: r' I / have tred diet known to 9V men. Ths Is the IIISt rime actually BONUS. A u. gi tor llf..- Ios Wflfht an I'm KeelOg It off. flnt 1000 order. that 'IWW: Mro afTax ., received tram thi8l1d. , . YOU' Ll BE AMAZED AT THE RESULTS!!! .. v.c- o:.."I__"" AS.SEEN ON ONLY ' 1__-_.,_10'''-""I.-""""",,__ ,)..1O 81"."8 -"0" I" J. $19. IIONEYBACKl-:::=- i:- . GUARAN'E : ..,S I;8 ".. . LL 1 -800- 289-1700 .n- 01 Complaint Il9 F.TC. EXHIBIT B DA VISH ENTERPRISES NINZU" 2 MIN.

VER. A S 19.

800-ST A Y TRIM 7/I/93 Would you put a needle in your ear to help you lose weight? Medical doctors in China use acupuncture every day to successfully help millions of patients. Now for the first time in America you can actually lose weight using the proven principles of acupuncture without needles. (ON SCREEN: 1-800-STA YTRIM (1-800-782-9874)j Introducing Ninzu, an amazing device guaranteed to help you lose weight by controllng your hunger. Just attach the small device to the triangular portion of your outer ear for one hour before eating, during the meal, and one hour after eating. It s completely painless, and totally effective. (ON SCREEN: 1-800-STA Y TRIM (I -800-782-9874)). In just seconds your hunger pains disappear. You eat less, you lose weight quickly and safely. Here s how it works. In Chinese medicine the hunger point is the tragus. The tragus is connected to the major nerve ending that controls your stomach and upper intestine. When you apply pressure to the nerve ending it actually inhibits your stomach' s contractions. Your brain receives the signal that your stomach is full, reducing your craving. Imagine, no calorie counting, no diet shakes, no special fads, no pils or drugs. Just a safe, effective method that really works. Ninzu really change my life. It is so satisfying to feel good about myself again. I dropped two dress sizes, so simple, yet so incredibly effective. Since wearing the Ninzu I really can t wait to get dressed in the morning. You can t notice it but I'm wearng it right now and I literally cut my food intake in half.

The Chinese clip is based on 4000 years of ancient oriental medicine. It's totally . P. safe and guaranteed to work. (ON SCREEN: Ted D. Annenberg, R.Ac. Registered Acupuncturist - Nutrtional Medicine, Weight Loss, Food Allergists (ON SCREEN: I-800-ST A Y TRIM (1-800-782-9874)) Now Ninzu can be yours for only $19.95. Best of all there s no additional purchases or refills. It' s safe, painless, and it lasts forever. I can t believe how much money this little product has saved me, but best of all it works, NINZU, INe., ET AL. 431 421 Complaint Ninzu comes with an iron-clad money-back guarantee. Try it for 90 days (ON SCREEN: I-800-STA YTRI (1-800-782.9874)) if you re not completely satisfied return them for a complete refund, no questions asked. Ninzu for only $19. , order today. Cali now I-800-STA Y TRIM, that s 1-800- 782-9874 for credit card orders, or send check or money order for $19.95 plus shipping to NINZU, Box 32088 , Baltimore, Marland 21208. Ninzu comes with a 90 day money back guarantee. Order Ninzu now. (ON SCREEN:

Visa, Master Card, American Express, Discover Cali Now I -800-ST A Y TRIM (1-800-782-9874) or send check or money order for $19. 95 plus $2.99 S+H to NINZU, P.O. Box 32088, Baltimore, MD. 2I208. Free Gift Included 90 Day Money Back Guarantee M.J. 1 E Chase Street. Suite 200, Baltimore, MD. 21202. . ......;; .,.;...........::.,;:,.. ,,: . , :; : ., ;:: ;: : :;. .....,,,,,.....::., ,: ,...; _........ :;;,::,......... ,,,,. . ...._!... , ,. ;: :..,.... . .., ., Compiaint J 19 FTC. EXHIBITC EXilBl' Auricle Cll? The Effortless Weight Loss Product ''''0 ''''N'.",- I... ""'0' 1 """'. I """ "'u ,0. u'" ""'''' I or.'."'" """."'... ,..c,'"'''oG..""'.'., . ""'""" "'''' I ''''''''0'''0''''''''''' I ...lMto"",..._,,"O" or C" C'i. 00.. '." 7:" c,, : I ,,, 0'.-' "'" "" '"..n, 0, 'O' " 0'" 'co.. ' moo. '0 ,,,.q..n '00. ""'"QO"",", "''-'''''''''''O.8q, ;7: "''''''''''""9''00'" """".0.9""""'"Q '. "'.. N- """9''''- ''' '''"Q 0,","OW -d , ,,,. ""oo"""'.or,,,'OI08hQ'"Q'' ....."ML...-0'00"",,"'.-...'0....rI",..,. I' Clip, I o".."'O' 0, : O",'hf""'o"". O,,€.., '"0"S"oo,-5",'.20D "02,2! T'" "''''01.!:lip T,, c... " Inn poo...'-'c"1100'2S1. "DD ",.-.. -- .. '" ""II, ..,In CII..._I-. ---"",.\1"''''_IN_ 0'_''''''-''0",''' /i.... 1t-- It..CA/- ., , \.., NINZU, INe. , ET AL. 433 421 Complaint EXHIBITD !:';:liJIT :J \"APS\- f ,"ou re rea':'- to I YDur share of the mLi:L ns of Pourlds Amencan5 are Q\'frwea:ht.

"xper !; sugge5! VOCI fol:ow lr.15 sells\bl.adVlr.

1. :r vou re :hinklng oia major "'''Igh: loss, see a dactarb.iore y'OusraM.

' i A. modem Invention bind en lharri&tlCilnC8cfacupressul' C8n reduce your craving IOfloo.

2. .ke .ure the diet v d1005 conUlins the pro r .mo of prot . fus, arbohvdratf' """ter and vltamms. The lj, Dep! of Hulth that 110 more than 30 pe entofyo'-T woriu.should C'me frm fat 3. Be aware of r.e.. techniques for d; tH!, One new prod"':! l' reported 1. be able tc help ye," I05 \ght without r elil1g hungry Called B.Trim. :hi! in Xpel111Ve acupr.u..re product wa. de,'el.

olJ by I Chine born. bod CH- !if, d in rnjst en th staff ef two w Were hosplta!s. Wh n you attach a small. spenally d slgT dip te th trJanguiar pert\on of your eut.r ar. a m "ag \1 5 !\t !. yeur brin via th VIIg' ne""

that tells yeurnomach it is par.

tlallv fuU, This effect makel diet.

ing practically efforlle,", The device i5 wern fer II ha:r !leur befereandanheurafurmea!5 Trim 15 available bv sending II check fer S3995 plus SJ, S&H te, Davish Health Preduct..

One East Chase Street, SUIte :200 Baitimen!.Ing\8ooi289.1700:"!D 21202. or bv. cau- Decision and Order 119 F.TC. DECISION AND ORDER The Federal Trade Commssion having initiated an investigation of certain acts and practices of the respondents named in the caption hereof, and the respondents having been furnished thereafter with a copy of a draft of complaint which the Bureau of Consumer Protection proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondents with violation of the Federal Trade Commssion Act; and The respondents and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondents of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondents that the law has been violated as alleged in such complaint, or that the facts as alleged in such complaint, other than jurisdictional facts, are true 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 to believe that the respondents have 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 2.34 of its Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings and enters the following order;

I. Respondent Ninzu, Inc. is a corporation organized, existing and doing business under and by virtue of the laws of the State of Marland, with its offce and principal place of business located at I East Chase Street, Suite 200, in the City of Baltimore, State of Maryland.

Respondent Davish Merchandising, Inc. is a corporation organized, existing and doing business under and by virtue of the laws of the State of Marland, with its offce and principal place of business located at I East Chase Street, Suite 200, in the City of Baltimore, State of Maryland.

Respondent Order By Phone, Inc. is a corporation organized existing and doing business under and by virtue of the laws of the NINZU, INC.. ET AL. 435 421 Decision and Order State of Maryland, with its office and principal place of business located at I East Chase Street, Suite 200, in the City of Baltimore, State of Maryland.

Respondent Michael B. Metzger is an officer and director of said corporations. He formulates, directs and controls the policies, acts and practices of said corporations, and his principal offce and place of business is located at the above- stated address. 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents, and the proceeding is in the public interest.

ORDER For the purposes of this order:

I. "Competent and reliable scientific evidence shall mean tests analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.

2. "Acupressure device shall mean any product, program, or service that is intended to function by means of the principles of acupressure.

It is ordered That respondents, Ninzu, Inc. . Davish Merchandising, Inc. d//a Davish Enterprises and Davish Health Products, and Order By Phone, Inc. d//a Auricle Clip, Inc. corporations, their successors and assigns, and their offcers; Michael B. Metzger, individual1ly and as an officer and director of said corporations; and respondents' agents, representatives and employees directly or through any partnership, corporation, subsidiary, division or other device, in connection with the advertising, packaging, labeling, promotion, offering for sale, sale or distribution of the Ninzu, Auricle Clip, B- Trim or any other acupressure device in or affecting commerce, as "commerce " is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, in any manner, directly or by implication, that: Decision and Order 119 FTC. A. Such product causes significant weight loss; B. Such product causes significant weight loss without the need to diet or exercise;

C. Such product controls appetite, eliminates a person s craving for food, or causes weight loss without the user feeling hungry; or D. Such product is scientifically proven to cause significant weight loss and control appetite.

II.

, Inc. , Davish It is further ordered That respondents, Ninzu Merchandising, Inc. d//a Davish Enterprises and Davish Health Products, and Order By Phone, Inc. d//a Auricle Clip, Inc. corporations, their successors and assigns, and their offcers; Michael B. Metzger, individually and as an officer and director of said corporations; and respondents' agents, representatives and employees directly or through any partnership, corporation, subsidiary, division or other device, in connection with the advertising, packaging, labeling, promotion, offering for sale, sale or distribution of any weight-loss or weight-control product or program or any acupressure device in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from making any representation, directly or by implication, regarding the performance, benefits, efficacy, or safety of such product, program or device unless such representation is true and unless, at the time of making such representation, respondents possess and rely upon competent and reliable scientific evidence that substantiates the representation.

It is further ordered That respondents, Ninzu, Inc. , Davish Merchandising, Inc. d//a Davish Enterprises and Davish Health Products, and Order By Phone, Inc. d//a Auricle Clip, Inc. corporations, their successors and assigns, and their offcers; Michael B. Metzger, individually and as an officer and director of said corporations; and respondents ' agents, representatives and employees directly or through any parnership, corporation, subsidiary, division or other device, in connection with the advertising, packaging, labeling, promotion, offering for sale . sale or distribution of any NINZU, INC., ET AL. 437 421 Decision and Order weight-loss or weight-control product or program or any acupressure device in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing, directly or by implication, that any endorsement (as endorsement" is defined in 16 CFR 255. 0(b)) of the product program, or device represents the typical or ordinary experience of members of the public who use the product, program, or device unless this is the case.

IV.

It is further ordered That respondents, Ninzu, Inc. , Davish Merchandising, Inc. d//a Davish Enterprises and Davish Health Products, and Order By Phone, Inc. d//a Auricle Clip, Inc. corporations, their successors and assigns, and their officers; Michael B. Metzger, individually and as an offcer and director of said corporations; and respondents' agents, representatives and employees directly or through any parnership, corporation, subsidiar, division or other device, in connection with the advertising, packaging, labeling, promotion, offering for sale, sale or distribution of any weight-loss or weight-control product or program or any acupressure device in or affecting commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from misrepresenting, in any manner, directly or by implication, the contents, validity, results, conclusions, or interpretations of any test or study.

It is further ordered, That for five (5) years after the last date of dissemination of any representation covered by this order respondents, or their successors and assigns, shall maintain and upon request make available to the Federal Trade Commission or its staff for inspection and copying:

A. All materials that were relied upon In disseminating such representation; and B. All tests, reports, studies, surveys, demonstrations or other evidence in their possession or control that contradict, qualify, or call 438 FEDERAL TRADE COMMISSION DECISIO!\S Decision and Order 119 FTC. into question such representation, or the basis relied upon for such representation, including complaints from consumers. VI.

It is further ordered That respondents, Ninzu, Inc. , Davish Merchandising, Inc. d//a Davish Enterprises and Davish Health Products, and Order By Phone, Inc. d//a Auricle Clip, Inc. shall: A. Within thirty (30) days after service of this order, provide a copy of this order to each of respondents' current principals, offcers directors and managers, and to all personnel, agents, and representatives having sales, advertising, or policy responsibility with respect to the subject matter of this order; and B. For a period of five (5) years from the date of issuance of this order, provide a copy of this order to each of respondents' future principals, officers, directors, and managers, and to all personnel agents, and representatives having sales, advertising, or policy responsibility with respect to the subject matter of this order who are associated with respondents or any subsidiary, successor, or assign within three (3) days after the person assumes his or her position. VII.

It is further ordered That respondents, Ninzu, Inc. , Davish Merchandising, Inc. d/b/a Davish Enterprises and Davish Health Products, and Order By Phone, Inc. d//a Auricle Clip, Inc., shall notify the Federal Trade Commission at least thirty (30) days prior to any proposed change in their corporate structures, including but not limited to dissolution, assignment, or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiares or affliates, the planned filing of a bankruptcy petition, or any other corporate change that may affect compliance obligations arising out of this order.

VII It isfurther ordered That respondent, Michael B. Metzger, shall for a period of five (5) years from the date of issuance of this order notify the Commission within thirty (30) days of the discontinuance NINZU, INe. , ET AL. 439 421 Decis.ion and Order of his present business or employment and of his affiliation with any new business or employment. Each notice of affliation with any new business or employment shall include respondent s new business address and telephone number, current home address, and a statement describing the nature of the business or employment and his duties and responsibilities.

IX.

It is further ordered, That respondents, Ninzu, Inc. , Davish Merchandising, Inc. d//a Davish Enterprises and Davish Health Products, and Order By Phone, Inc. d//a Auricle Clip, Inc. corporations, and Michael B. Metzger, individually and as an offcer and director of said corporations, shall, within sixty (60) days after service of this order, and at such other times as the Federal Trade Commission may require, fie with the Commission a report, in writing, setting forth in detail the manner and form in which they have complied with this order.

Complaint 119 F.T.