DAs Dispute Enforma's Diet Claims
The infomercial for the dietary supplement claims that a person who uses the system can eat 1,000 calories of fat a day and still not gain weight. In the complaint against Enforma, the district attorneys allege that there is no scientific substantiation for the claim.
"This has to do with specifically human weight loss," said David Copenhaver, deputy district attorney for Sonoma County. "There are hundreds of uses for chitosan, such as oil spill cleanup and things like that, but they say this is going to grab all the fat in your body, and then be excreted. But this has to be proven and it hasn't been yet."
The defense claims that the prosecutors asked for substantiation and gave Enforma 90 days to provide substantiation for the claims made in the infomercial, and then filed the lawsuit prior to the deadline.
"We believe the lawsuit is completely meritless," said Bruce Mioglio, the attorney representing Enforma. "They [prosecutors] pleaded with the court to get a continuance so they could respond to the two-inch thick report we filed substantiating the claims made in the advertisement. It's important to realize that no customer has brought a claim against Enforma and there is no customer out there who is unhappy. The district attorneys are going after these dietary customers on their own and they are acting like judge, jury and, in this case, executioner."
The Consumer Protection/Environmental Protection divisions of the district attorneys' offices monitors advertisements in all media. If it finds claims are being made without substantial scientific action, it may bring a lawsuit against the advertisers.
"In circumstances like these our role is important because victims will not necessarily know they are victims," Copenhaver said.
Also named in the suit is Steve Garvey, former first baseman for the Los Angeles Dodgers, who endorsed the product in the infomercial.
"There are a lot of celebrities out there who are adding credence to false advertising just because their name is attached to it," Copenhaver said. "They should have a duty to be sure that what they are saying is true."
Bruce A. Miroglio, who represents Garvey, said the inclusion of Garvey in the suit is nothing more than a publicity stunt.
"Steve Garvey is indicative of what the district is after," he said. "It's merely an attempt to get publicity for themselves."
The lawsuit is boiling down to a battle between expert witnesses. The prosecution has retained two nutritionists from the University of California, Berkeley and the defense has retained experts familiar with the uses of chitosan.
"The claims that their expert made are so far out of the realm that there is no way for them to substantiate the claims," Copenhaver said. "One of the studies that they cited was done in Italy. The research they presented were studies that were done on rats, chickens and dogs, not people."
He said the defense also cited another uncompleted study that was done in Helsinki, Norway. The study was scrapped after too many subjects abandoned the regimen it required.
"Nothing about this particular product is in the packet they gave the courts; 99 percent of what they introduced was based on the Helsinki study," Copenhaver said. "In addition, the study did not measure how many calories were being ingested. Anybody could lose weight on a 1,000 calorie diet, the human body needs at least 2,900 calories in a daily diet to survive."
Nutritionist Joanne Ikeda said the documentation the defense presented was done so to confuse the court so they would not have to face an injunction and fines.
"I cannot identify any research for chitosan that shows substantial proof that it is a factor in weight loss," she said. "Their experts are company scientists and a petroleum engineer. They have no knowledge of nutrition."
The defense said their documentation has successfully discredited Ikeda and another witness who is her colleague.
"They rely on a witness with a master's degree who says they have found no research. She is so wrong that not even the district attorney is relying on her," Miroglio said. "There is no question in my mind that the judge will not grant an injunction [which would force the infomercial off the air]."
If the ruling is in favor of the plaintiffs, then Enforma, its officers and Garvey will be forced to cease advertising in California and would be subject to fines, the amount of which will be subject to the judge's rulings.
In addition to Enforma, the district attorneys have filed four other lawsuits against marketers of other products containing chitosan.
The marketer of the Try-Lean Diet, Larry Ormson, Elroy, WI, was forced to pull his ads from the California AAA's magazine after Judge Jose Guillen granted an injunction against the ad.
The Television Marketing Group Inc. which runs ads in women's magazines and on the Internet for Fight the Fat is being sued for its claim that 12 to 14 drops of the product will absorb 15 grams of dietary fat instantly.
Higher Ideals Inc., Carson City, NV, which markets Fabulous Figure on its Web site, is being sued for claims that a similar chemical, polyglucosamine, which is found in the shells of crabs, lobsters and shrimp, will reshape a person's figure "like nothing ever has."
Danmark Inc., Topsham, ME, which markets its chitosan product, Chitosol, on the Internet, is being sued for claims that the supplement can absorb five times its weight in cholesterol, fat, and bile acids.
"I would love it if these products all worked," Copenhaver said. "But none of these claims have ever been proven and published in a peer review journal, which is required for all clinical studies done on dietary supplements." n