UNITED STATES OF
AMERICA
BEFORE FEDERAL TRADE COMMISSION
- COMMISSIONERS:
- Robert Pitofsky, Chairman
- Mary L. Azcuenaga
- Janet D. Steiger
- Roscoe B. Starek, III
In the Matter of
KAVE ELAHIE d/b/a M.E.K.
INTERNATIONAL, a sole proprietorship.
DOCKET NO. C-3770
DECISION 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 San Francisco 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 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 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 respondent 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 respondent has violated the said Act, and that a
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 § 2.34 of
its Rules, the Commission hereby issues its complaint,
makes the following jurisdictional findings and enters
the following order:
1. Respondent Kave Elahie is the sole proprietor of
M.E.K. International, a California company with its
principal office or place of business at 1669 Emeric
Street, Simi Valley, California 93065.
2. The Federal Trade Commission has jurisdiction of
the subject matter of this proceeding and of the
respondent, and the proceeding is in the public interest.
ORDER
DEFINITIONS
For the purposes of this order, the following
definitions shall apply:
1. "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;
and
2. Unless otherwise specified, "respondent"
shall mean Kave Elahie, individually and doing business
as M.E.K. International, his successors and assigns and
each of his officers agents, representatives, and
employees.
3. "Commerce" shall mean as defined in
Section 4 of the Federal Trade Commission Act, 15 U.S.C.
§ 44.
I.
IT IS ORDERED that respondent, directly or through any
corporation, subsidiary, division, or other device, in
connection with the labeling, advertising, promotion,
offering for sale, sale, or distribution of the
"NutraTrim Bio-Active Cellulite Control Cream,"
or "NutraTrim Weight Loss" tablets, or any
other food, drug, or dietary supplement, as
"food" and "drug" are defined in
Section 15 of the Federal Trade Commission Act, in or
affecting commerce, shall not make any representation, in
any manner, expressly or by implication:
A. That such product causes, aids, facilitates or
contributes to reducing body fat;
B. That such product causes, aids, facilitates or
contributes to causing rapid weight or body fat loss;
C. That such product causes or assists in causing
weight or fat loss without dieting or strenuous
exercise;
D. That such product reduces serum cholesterol
levels;
E. That such product increases human metabolism;
F. That such product controls appetite;
G. That such product increases energy or stamina;
or
H. That such product eliminates cellulite or fat;
unless at the time it is made, respondent possesses
and relies upon competent and reliable scientific
evidence that substantiates the representation.
II.
IT IS FURTHER ORDERED that respondent, directly or
through any corporation, subsidiary, division, or other
device, in connection with the labeling, advertising,
promotion, offering for sale, sale, or distribution of
the "NutraTrim Bio-Active Cellulite Control
Cream," or "NutraTrim Weight Loss"
tablets, or any other food, drug, or dietary supplement,
as "food" and "drug" are defined in
Section 15 of the Federal Trade Commission Act, in or
affecting commerce, shall not make any representation, in
any manner, expressly or by implication, regarding the
performance, benefits, efficacy, or safety of such
product, unless at the time it is made, respondent
possesses and relies upon competent and reliable
scientific evidence that substantiates the
representation.
III.
IT IS FURTHER ORDERED that respondent, directly or
through any corporation, subsidiary, division, or other
device, in connection with the labeling, advertising,
promotion, offering for sale, sale, or distribution of
the "NutraTrim Bio-Active Cellulite Control Cream,'
or "NutraTrim Weight Loss" tablets, or any
other food, drug, or dietary supplement, as
"food" and "drug" are defined in
Section 15 of the Federal Trade Commission Act, in or
affecting commerce, shall not make any misrepresentation,
in any manner, expressly or by implication, regarding the
existence, contents, validity, results, conclusions, or
interpretations of any test or study.
IV.
IT IS FURTHER ORDERED that respondent, directly or
through any corporation, subsidiary, division, or other
device, in connection with the labeling, advertising,
promotion, offering for sale, sale, or distribution of
any product in or affecting commerce, shall not
represent, in any manner, expressly or by implication,
that the experience represented by any user testimonial
or endorsement of the product represents the typical or
ordinary experience of members of the public who use the
product, unless:
A. At the time it is made, respondent possesses and
relies upon competent and reliable scientific evidence
that substantiates the representation; or
B. Respondent discloses, clearly and prominently, and
in close proximity to the endorsement or testimonial,
either:
1. what the generally expected results would be
for users of the product, or
2. the limited applicability of the endorser's
experience to what consumers may generally expect to
achieve, that is, that consumers should not expect to
experience similar results.
For purposes of this Part, "endorsement"
shall mean as defined in 16 C.F.R. § 255.0(b).
V.
Nothing in this order shall prohibit respondent from
making any representation for any product that is
specifically permitted in labeling for such product by
regulations promulgated by the Food and Drug
Administration pursuant to the Nutrition Labeling and
Education Act of 1990.
VI.
Nothing in this order shall prohibit respondent from
making any representation for any drug that is permitted
in labeling for such drug under any tentative final or
final standard promulgated by the Food and Drug
Administration, or under any new drug application
approved by the Food and Drug Administration.
VII.
IT IS FURTHER ORDERED that respondent shall, for five
(5) years after the last date of dissemination of any
representation covered by this order, maintain and upon
request make available to the Federal Trade Commission
for inspection and copying:
A. All advertisements and promotional materials
containing the representation;
B. All materials that were relied upon in
disseminating the representation; and
C. All tests, reports, studies, surveys,
demonstrations, or other evidence in their possession
or control that contradict, qualify, or call into
question the representation, or the basis relied upon
for the representation, including complaints and
other communications with consumers or with
governmental or consumer protection organizations.
VIII.
IT IS FURTHER ORDERED that respondent shall deliver a
copy of this order to all current and future principals,
officers, directors, and managers, and to all current and
future employees, agents, and representatives having
responsibilities with respect to the subject matter of
this order, and shall secure from each such person a
signed and dated statement acknowledging receipt of the
order. Respondent shall deliver this order to current
personnel within thirty (30) days after the date of
service of this order, and to future personnel within
thirty (30) days after the person assumes such position
or responsibilities.
IX.
IT IS FURTHER ORDERED that respondent Kave Elahie, for
a period of ten (10) years after the date of issuance of
this order, shall notify the Commission of the
discontinuance of his current business or employment, or
of his affiliation with any new business or employment.
The notice shall include respondent's new business
address and telephone number and a description of the
nature of the business or employment and his duties and
responsibilities. All notices required by this Part shall
be sent by certified mail to the Regional Director,
Federal Trade Commission, 901 Market Street, Suite 570,
San Francisco, California 94103.
X.
IT IS FURTHER ORDERED that respondent shall, within
sixty (60) days after the date of service of this order,
and at such other times as the Federal Trade Commission
may require, file with the Commission a report, in
writing, setting forth in detail the manner and form in
which he has complied with this order.
XI.
This order will terminate on September 19, 2017, or
twenty (20) years from the most recent date that the
United States or the Federal Trade Commission files a
complaint (with or without an accompanying consent
decree) in federal court alleging any violation of the
order, whichever comes later; provided, however,
that the filing of such a complaint will not affect the
duration of:
A. Any Part in this order that terminates in less
than twenty (20) years;
B. This order's application to any respondent that
is not named as a defendant in such complaint; and
C. This order if such complaint is filed after the
order has terminated pursuant to this Part.
Provided, further, that if such complaint is
dismissed or a federal court rules that the respondent
did not violate any provision of the order, and the
dismissal or ruling is either not appealed or upheld on
appeal, then the order will terminate according to this
Part as though the complaint had never been filed, except
that the order will not terminate between the date such
complaint is filed and the later of the deadline for
appealing such dismissal or ruling and the date such
dismissal or ruling is upheld on appeal.
By the Commission.
Donald S. Clark
Secretary
ISSUED: September 19, 1997
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