Oprah Winfrey / Harpo Productions versus "Acai Berry" Marketers FWM

There have been some interesting developments in recent days regarding the scourge of spam (and other abusive marketing methods) promoting the dubious "Acai Berry" weight loss products.

If you run an email address, you must have certainly seen several of these messages.

Via regular spam email:

We are the Global leader in acai and your online source for premium sustainable and certified organic Acai. Our Acai diet plan has proven results boost your immune system with our free trial offer for you.

A straight click

Via automated MSN Messenger sessions run by bots:

Woah those acai berry pills are no joke I just lost like 23 pounds in two weeks, I am living proof that they work with no special diet or nothing, they only cost me five dollars over at......

Via forum or NewsGroup spam:

The Acai Berry became extremely popular when Oprah interviewed Dr Perricone who stated that the Acai berry was the #1 Superfood and helped with wieghtLoss. (For Free Acai Trial Info Click below link).

http://skuh.sdipsrrr.cn

Since that time this small berry which looks like a purple grape has become extremely popular. It has been featured on several news channels such as:

* The NBC Today Show which stated that "studies show that the acai berry is one of the most nutritous foods in the world.

* ABC News stated that research has provided evidence that "the acai berry will help you live longer and healthier. That it could help protect you against cancer, protect your heart and even prevent Alzheimer's disease.

However, it is not only the health, rejuvenation and detoxifcation aspects of the acai berry we are interested in. The fact that it helps the body to lose fat is what many people find of interest and thus we want to try it for ourselves!

A brief excerpt from Dr Perricone's book:

Acai is good for wieghtLoss because it contains cyanidin, a highly antioxidant phytochemical compond. This claim is based on a Japanese research report that found evidence that cyanins work by reducing fat asorption and draining body fat . (pp. 59)".

However, as interesting as it is to read about the power of the acai berry, many people are actually interested in taking it in either a juice or capsule form, for its healthful and wieghtLoss properties. So Click on below links to find out how you can get your free trial of the Acai Berry Capsule today.

http://sfjy.sdipsrrr.cn
http://scoq.sdipsrrr.cn

Domains used in thes campaigns fit the usual pattern we've seen from these automated domain registrations (of course, using 100% fake contact information and likely stolen credit cards):

smithadjective.com
[random].sdipsrrr.cn
aiabigko.cn
appleaddition.com
smithadult.com
smithadjective.com
aiqoyazo.cn
aiutqweo.cn
appleagainst.com

etc., to the tune of thousands per day.

[Note: I am well aware that several of these URLs may not have been used to promote on behalf of FWM Laboratories. I'm merely saying: these "products" are marketed online in really scummy ways, and nobody is doing anything about it. Certainly FWM Laboratories are aware of this, as we will see below.]

Well, notice in that last posting - found on a Usenet newsgroup regarding indoor gardening - that they make specific mention of both Oprah Winfrey and a "Dr. Perricone". These messages love to toss in a famous name. Lately their sites feature a head-and-shoulders shot of Rachael Ray. They've also mentioned Dr. Oz, another Winfrey cohort, and delivered similarly bogus testimonials, claiming them to be from him.

A few days ago, Oprah Winfrey and the State of Illinois Attorney General Lisa Madigan brought several lawsuits against a few companies whose main purpose is to market these bogus "Acai Berry" pills.

You can read a statement on behalf of Ms. Winfrey and Dr. Oz here, which does not mince words:

On August 19, 2009, Harpo, Inc., producers of The Oprah Winfrey Show and The Dr. Oz Show, along with Dr. Mehmet Oz, filed a trademark infringement complaint against 40 Internet marketers of dietary supplements, including acai berry products among others. Neither Ms. Winfrey nor Dr. Oz has ever sponsored or endorsed any acai berry, resveratrol, colon cleanse or dietary supplement product.

That is just about as clear a statement as they could possibly make.

The Illinois State Attorney General press release is available here, and a Business Week followup to that story is available here. It makes for some great reading.

The charges go much further than mere defamation, for which Harpo productions, Winfrey and Oz could argue on its own without any further elaboration and still be successful against these scumbags. Add to this the following process which thousands of unwitting consumers have gone through:

• Receive a message (via email, message board, MSN Messenger, Google Groups, Yahoo Groups, etc.) promoting a "free trial" of Acai Berry or Resveratrol


• Go to the site being promoted


• Enter your credit card (again: why? Why is a credit card required for something that is allegedly "free"?)


• Receive no product


• A month later your card is charged again


• After many months of this, you experience great difficulty in stopping these charges

That is fraud, plain and simple.

The prime defendant named in these charges is a company called FWM Laboratories, located (where else?) in Florida.

FWM's CEO Brian Weiss uses a typical defense in response to these charges. Essentially: "I didn't do it, my affiliates did."

FWM Laboratories of Hollywood, Fla., which sells Resveratrol Ultra, is behind many of the ads—and has taken the brunt of customers' ire. The company sells monthly subscriptions to a handful of supplements, including açai, a Brazilian berry it promotes as a weight-loss treatment. A recent search on consumer site Complaintsboard.com brought up 1,200 posts from agitated FWM customers.

And:

FWM CEO Brian Weiss says FWM doesn't create the ads, approve them, or place them on the Net. It delegates those tasks to ad networks, which the company pays to spread the word about its products. He declined to name which networks FWM uses.

That's quoted from a July, 2008 article [source], in which (hey guess what?) Harvard University scientist David Sinclair similarly discovered that his name, and several quotes claiming to be from him which endorse Resveratrol were being similarly used to promote Resveratrol and Acai Berry.

The site offered a free trial to anyone who typed in their credit-card number. Those who tried to click off the ad were stopped by a large boxed message, which read: "Wait! Dr. Sinclair wants to make sure you take advantage of this limited time opportunity!"

The doctor never uttered any of the words attributed to him.

Sound familiar?

Ironically (or maybe not) the website for FWM Laboratories features several quotes from Mr. Weiss [source] which apparently were put there in reaction to the rash of customer complaints their "promotions" have resulted in. Note that this "About Us" page was last updated on July 15th. The first Business Week article regarding these complaints was published on July 29th. Coincidence?

"When we first started, customer service obviously spent the bulk of its time dealing with orders, explaining the delay and adjusting the date forward so the customer had the full amount of time to try the product," says Weiss. "Now, we have multiple ways for a customer to interact with us, servicing time and fulfillment are within 24 hours of contact."

"We make it as easy as possible to cancel our 15-day trial, through our website at www.myordersupport.com, our automated call-in system, or speaking to a live customer service representative 24/7," notes Weiss.

That, arguably, is not true. A rudimentary search on ComplaintsBoard.com shows 882 reports of multiple credit card charges, lots of abuse of "fine print", and utterly no means of stopping the credit card charges.

Here are a few just to show the kind of outright lies this company is responsible for telling its consumers:

I ordered a free trial the Acai Berry Detox and the Colon Cleanse off the link from www.rachelray.com. I agreed to pay $0.99 for the free trial. I received the free samples and called the number on the invoice and told them I wanted to make sure I was not going to get anymore and that I would not be charged for anything else. The man told me that the only thing they only had the free trial charged and I would not receive any more charges or product shipments. I was looking at my checking account today and I have been charged 7 times amounting to $255.15 !!!

...

The only common denominator is FWM Laboratories in Hollywood, Fl. When I called the numbers that I found, it kept me on hold for 22 minutes and then disconnected me and the second time for 23 minutes and then disconnected me. The phone recording said to go to myordersupport.com to manage my account and it would not let me on because I did not have an account or login or anything.

[source]

Note: rachelray.com is a cybersquatting domain, and redirects to talkshow-diets.com. Ms. Ray: where are your lawyers?

Scammed like others out of $175.25 so far. Billed again after canceling first. Did not receive $ back as told I would. Rude "customer service". Foreigners do not speak English-sound like they are from India. Why hasn't the FTC or Florida Attorney General dealt with this company's fraudulent practices?

[source]

I have tried to contact the company through the 800 number for at least 8 hrs. They just keep hanging up on me.

have been trying to cancel my free trial, I cannot take it because I have thyroid problems. I have called FWM Laboratories and they will not help me. They said I have to call 1-800-949-0138, I did that and I get the automated phone system. I keep getting hung up on after being on hold for at least a half hour everytime I call.

[source]

And on and on.

Unsurprisingly, Mr. Weiss is not responding to any requests for comment by any media outlet. (Or this blog.)

Clearly there are some desperate people who really want to lose weight, and want to spend as little money doing so as problem. I sympathize with them. But as with anything which involves you, your brain and your credit card, the same old lessons hold true:

1) Use your brain
2) If it says "free" and then they're immediately asking for a credit card: think about that for a moment. "Free" means: no money. For no charge.
3) If you hear that Oprah Winfrey is allegedly "promoting" a product, and especially if you are a fan of Oprah Winfrey, wouldn't you first check with her official website to see if that is true?
4) See #1.

Under CAN-SPAM - which may or may not be applicable here, since they're suing a company which produces the product as opposed to marketing it - there is an amendment known as the McCain Amendment (after former Presidential candidate John McCain.) [wikipedia]

Senator John McCain is responsible for a last-minute amendment which makes businesses promoted in spam subject to FTC penalties and enforcement remedies, if they knew or should have known that their business was being promoted by the use of spam. This amendment was designed to close a loophole which allowed those running affiliate programs to allow spammers to abuse their programs, and encouraged such businesses to assist the FTC in identifying such spammers. The McCain amendment, as it is known, was authored for Senator McCain's office by Anne P. Mitchell

There have been a few court cases which successfully prosecuted companies under this specific amendment, and as a result there have been a few news stories regarding it. Here's a quotation which makes clear the impact this amendment has regarding affiliate marketing:

The McCain Amendment basically says that even if you do not yourself press “send” and inject the spam into the Internet stream, if you in any way profit from the sending of the spam then you are as guilty as if you had pressed “send” yourself. And it does no good to say “but gosh, Mr. FTC man, I didn’t know that I was engaging the services of a spammer“, if it can be proven that you reasonably should have known. People who truly couldn’t have known need not worry, but once you are on notice that, for example, your affiliates are spamming, and where you are profiting from that spamming, watch out.

[source]

That "gosh Mr. FTC man" quote is almost literally what Mr. Weiss and FWM Laboratories have been saying for months now.

Any legitimate company, if they hired a marketing operation to promote them using a celebrity persona, and featured direct quotes, and those turned out to be false: there would be hell to pay. We don't see Coca Cola doing this. We don't see Pfizer doing this. We don't see Kraft Foods or Bayer Aspirin doing this. We see FWM doing it. That it has taken Ms. Winfrey and her associates this long to do something about it is a bit surprising -- and don't forget: her name and likeness were also used throughout the past three years to promote numerous bogus "Hoodiia Gordoni" supplements, also via spam. I for one welcome these charges.

I should hope that the FTC directly takes an interest in these lawsuits, and that it results in very high fines and a complete overhaul of how any affiliate marketing operation does its business. I could care less in this case whether email spam was used or not. You can't go around lying to people, profit from it, and then claim that you were unaware that these lies were being used to sell your products.

I'd like to add that since the publication of these charges, my Acai email spam is way, way down. If FWM is not somehow related to the flood of Acai Berry email spam, I for one would be shocked.

SiL / IKS / concerned citizen