Â鶹´«Ã½

The Â鶹´«Ã½ Trade Commission has given final approval to a consent agreement with marketers of "Jogging in a Jug," a beverage made of apple juice, grape juice and vinegar, settling charges that they made numerous false health claims for the drink. The Commission's action makes the consent order provisions binding on the respondents: Third Option Laboratories, Inc.; William J. (Jack) McWilliams, company president; Danny Bishop McWilliams, treasurer; and Susan McWilliams Bolton, secretary. The respondents are based in Muscle Shoals, Alabama.

The final order prohibits the respondents from claiming, among other things, that Jogging in a Jug or any substantially similar product:

• cures or alleviates heart disease, arthritis, lethargy, dysentery, constipation, swelling of the legs, or muscle spasms;
• substantially lowers serum cholesterol and triglycerides;
• improves the condition of the circulatory system;
• cleans internal organs;
• prevents or reduces the risk of cancer, leukemia, heart disease, or arthritis;
• provides the same health benefits as a jogging regimen;
• stabilizes blood sugar levels in insulin-dependent diabetics;
• aids in recovery from viral diseases; or
• is approved by the U.S. Department of Agriculture.

The settlement also requires the respondents to have competent and reliable scientific evidence to support any representation they make about the performance, safety, benefits, or efficacy of any food, dietary supplement, or drug they market in the future. In addition, the settlement contains prohibitions against the deceptive use of testimonials or endorsements, and against misrepresentations that any product has been tested, approved or endorsed.

If the respondents continue using the name Jogging in a Jug or any other name that communicates the same message, they must include the following disclosure clearly and prominently in the same materials where that name appears:

"There is no scientific evidence that jogging in a jug [or other name] provides any health benefits."

The settlement also requires the respondents to send a letter by first class mail to all customers who purchased Jogging in a Jug directly from the respondents since 1993. The letter will advise purchasers of the FTC's allegations in this case. A similar letter advising of the FTC's allegations in the case will be sent to distributors of the product who have done business with the respondents since 1993.

In addition, the settlement requires the respondents to pay $480,000, which will be used either for refunds to consumers or, if that is not practical, disgorged to the U.S. Treasury. Finally, the settlement contains various record keeping and reporting provisions to assist the FTC in monitoring the respondents' compliance with the settlement.

The consent agreement was announced for public comment on April 13, and issued in final form on Nov. 29. The Commission vote on final issuance was 4- 0, with Commissioner Robert Pitofsky not participating. Commissioner Mary L. Azcuenaga, in a separate concurring and dissenting statement, said she concurred in the complaint on which the order is based except to the extent that it alleges as a violation the content of newspaper articles that are reproduced in the respondents' promotional materials and those materials accurately identify and reproduce such articles in their original format without modification.

Second, she dissented from Part VII of the order, stating: "Although the complaint does not challenge as materially misleading the unadorned use of the product's name, Jogging in a Jug (nor would I, given the absence of evidence), Part VII of the order prohibits...use of the name Jogging in a Jug...unless the name is accompanied clearly and prominently by a [specified] disclosure." She explained further that "[t]he Commission in the past has used this form of relief, which can substantially limit potentially lawful conduct, to remedy health claims that seem more credible than those likely to be taken by reasonable consumers here," such as the pain relief claim conveyed by the name "Aspercreme." She said, "[t]he likelihood that a consumer would expect that a product named Aspercreme would contain aspirin and would rely on that claim to his or her detriment seems to me far greater than the likelihood that a consumer would rely to his or her detriment on an implied message that a product called Jogging in a Jug would provide the health benefits of jogging."

NOTE: A consent agreement is for settlement purposes only and does not constitute an admission of a law violation. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of up to $10,000.

A news release summarizing the complaint and consent agreement was issued at the time the Commission accepted the consent agreement for public comment. Copies of that release, the complaint and final order are available from the FTC's Public Reference Branch, Room 130, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580; 202-326-2222; TTY for the hearing impaired 1-866-653-4261. To find out the latest FTC news as it is announced, call the FTC NewsPhone recording at 202-326-2710. FTC news releases, consumer brochures and other documents also are available on the Internet at the FTC's World Wide Web Site at: http://www.ftc.gov

Ìý

(FTC File No. 942 3027)
(Docket No. C-3628)