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Acaiberry Power500 Investigation Leads to Discontinuation of Advertising Claims…

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CRUSH, LLC
Acaiberry Power500 Dietary Supplement

…claims that were within its control and which appeared in
advertising for AcaiBerry Power 500, the marketer informed ERSP that it has elected voluntarily and without any admission of lack of truthfulness or substantiation for any claim it has made for AcaiBerry Power 500, to discontinue each of the claims that have appeared on its website and which are cited in ERSP’s Basis of Inquiry.  More specifically, the marketer has discontinued the following claims:

A. Performance Claims
“Flush Pounds and Pounds of Waste and Toxins from your Body!”
“Flush out Excess Pounds!”
“Break up and Remove Harmful Toxins!”
“Have More Energy! Fight Fatigue!”
“Reduce gas & Bloating, while Flattening your Tummy!”
“Extreme Acai Berry can help you look better and feel better by flushing
your body of all that excess waste that is weighing you down. Cleansing
your system will give you increased energy, help you fight fatigue, reduce
water retention, and help you get a firmer flatter midsection.”
“Boost your metabolism and increase your energy levels!”
“Acai Berry Power 500 contains the most powerful and effective ingredients
for internal cleansing available anywhere on the market today! Acai Berry
Power 500 will help you rid your body of all that excess build-up in your
digestive tract and aid in future build-up from occurring.”

B. Establishment Claim
“A University of Florida study published in the Journal of Agriculture and
Food Chemistry on Jan. 12 2006 found that Acai berries triggered a selfdestruct response in up to 86 percent of leukemia cells tested in- vitro.”

C. Celebrity Endorsement Claim
“Gwyneth Paltrow, Courtney Love, Eva and Tony all enjoy the benefits of
Acai Berry. The popularity of Acai Berry is steadily increasing thanks to
many high profile stars in Hollywood. Celebrities are now using Acai Berry
to jumpstart their weight loss plans.” [accompanied by pictures of
Gwyneth Paltrow, Courtney Love, Eva Longoria, and Tony Parker]
In discontinuing these claims, the marketer noted that it has no present intent of making these claims in future advertising although it reserved its right to consider what new claims it may wish to make that are supported by its evidence.

BASIS OF INQUIRY
Direct response advertising for Acaiberry Power 500 dietary supplement,
marketed by Crush, LLC (Crush), came to the attention of the National
Advertising Review Council’s Electronic Retailing Self-Regulation Program
(“ERSP”) pursuant to ERSP’s ongoing monitoring program.  Based on our initial review of online (MySpace, Facebook, and website) advertising for Acai Berry Power 500 the following representative core claims were identified as being communicated for the AcaiBerry 500 dietary
supplement:

1. Performance Claims
“Acai Berry Body Cleanse flush pounds and remove toxins safely.”
“Flush Pounds and Pounds of Waste and Toxins from your Body!”
“Flush out Excess Pounds!”
“Break up and Remove Harmful Toxins!”
“Have More Energy! Fight Fatigue!”
“Reduce gas & Bloating, while Flattening your Tummy!”
“Extreme Acai Berry can help you look better and feel better by flushing your body of all that excess waste that is weighing you down. Cleansing your system will give you increased energy, help you fight fatigue, reduce water retention, and help you get a firmer flatter midsection.”
“Regulate my metabolism” Becky’s Weight Loss
“During my trial period I lost 25 lbs! I continued using both products and lost another 17 lbs. (That’s a total of 42 lbs in 3 months!)” Becky’s Weight Loss
“The New Acai Berry Diet; Lose 25 pounds” [text over picture of actress
Jessica Biel]
“Boost your metabolism and increase your energy levels!”
“Acai Berry Power 500 contains the most powerful and effective ingredients for internal cleansing available anywhere on the market today! Acai Berry Power 500 will help you rid your body of all that excess build-up in your digestive tract and aid in future build-up from occurring.”
“Lose 26lbs in 3 Weeks!; Learn how Lauren Conrad kept off the weight with
little to no work!” [accompanied by picture of celebrities Lauren Conrad
and Audrina Patridge]
“How I lost over 18 pounds in 3 weeks, and how you can too!”

2. Establishment Claims
“A University of Florida study published in the Journal of Agriculture and
Food Chemistry on Jan. 12 2006 found that Acai berries triggered a selfdestruct response in up to 86 percent of leukemia cells tested in- vitro.”
3. Celebrity Endorsement Claims
“Oprahs Acai Berry Diet.”
“Gwyneth Paltrow, Courtney Love, Eva and Tony all enjoy the benefits of
AcaiBerry. The popularity of Acai Berry is steadily increasing thanks to many high profile stars in Hollywood. Celebrities are now using Acai Berry to jumpstart their weight loss plans.” [accompanied by pictures of Gwyneth
Paltrow, Courtney Love, Eva Longoria, and Tony Parker]
“A ‘famous’ dieting solution; I say ‘famous’ because I learned about these two products [from] Oprah. I was surprised to know that tons of celebrities use the same stuff I used to lose 42 lbs.”
“And I trusted Oprah not to have shady doctors on, so I had a feeling this
wasn’t one of those ‘too good to be true’ products.”
“Here are some of the celebrities I found out that are using my method: Heidi Klum”

MARKETER’S POSITION
The marketer first called ERSP’s attention to the fact that several of the alleged “representative core claims” identified in the Basis of Inquiry are not made by Crush, but, instead are being disseminated by third party affiliate advertisers of whom the marketer exercise no control. Crush informed ERSP that it markets its AcaiBerry Power 500 directly only on websites that it owns, operates, and controls, as well as through banner, email and pay per click advertising that is intended to drive traffic to its website. Crush informed ERSP that it strictly controls the content of these advertisements.
Crush explained to ERSP that to drive traffic to its website, it works through an affiliate broker that, in turn, places Crush advertisements with third party “subaffiliates” who then promote the Crush advertisement for the product on websites and in email campaigns of their own design and over which they
exercise complete control (and Crush exercises none). The marketer added that it is in privity with the broker and thus can and does control the advertising for the product which the broker is authorized to place but it has no relationship contractual or otherwise – with the sub-affiliates that receive the advertising. It thus has no prior knowledge of, or power over, the content the sub affiliates create and place on their websites or the tactics they use in order to persuade consumers to click on the product banner and, in so doing, earn payment from the broker for the lead. Crush also stated that when it learns of improper conduct of the sub-affiliates, it demands that the broker halt traffic to its sites from the offending source. Crush noted that it will take whatever action it can directly against the affiliate to cut off the traffic and will consider any recourse it has in dealing with the responsible media vendor, ranging from deduction of payments for “bad traffic” to severing the relationship.

The marketer emphasized that it is not responsible for the independent third
party advertising nor for substantiating the truthfulness of it. It also added that there are no other acai berry products other than AcaiBerry Power 500 that are marketed by Crush or anyone with whom Crush is affiliated.  Notwithstanding its decision to discontinue the aforementioned claims for
AcaiBerry 500, the marketer did provide ERSP with published materials
regarding antioxidant, anti-inflammatory and other health properties of acai
berry. These included recent controlled clinical studies finding a statistically
significant increase in antioxidant capacity attributable to the polyphenols found in acai berry (which the marketer maintained is higher than in most common fruits and vegetables) and increased anti-inflammatory capacity as well.

ADMINISTRATIVELY CLOSED DETERMINATION
The recent proliferation of egregious advertising claims for acai berry products has become an ongoing source of concern for ERSP, particularly (as exemplified in this matter) the practices of third party (i.e., sub affiliate) advertisers who promote acai berry products with email and banner advertising campaigns without the consent and/or knowledge of the product manufacturer. As Crush has demonstrated to ERSP, there is a body of evidence demonstrating some very real nutritional benefits in acai berries, although the extent of these benefits claimed in advertising for a number of acai berry products appears greatly exaggerated.  ERSP is greatly appreciative to Crush, LLC for promptly addressing claims that have been made for which it exercises control and for its willingness to contact its online affiliate brokers when learning of inaccurate claims that are being
communicated regarding its product. Consistent with the representations made by the marketer during this inquiry, ERSP has independently confirmed that the claims at issue pertaining to AcaiBerry Power 500 for which Crush exercises direct editorial control have been discontinued and are no longer being disseminated.

Section 2.2 C (c)(ii)(d) of the ERSP Policy and Procedures provides that if …
during the course of an advertising review proceeding, ERSP determines that the advertising claims that are the subject of the inquiry have been permanently withdrawn from use … and ERSP receives the marketer’s assurance, in writing, that it has no present intention of using the claim(s) at issue in any future electronic national direct response advertising, [ERSP] shall administratively close the case file.”  Pursuant to the marketer’s representation that it has voluntarily withdrawn the claims at issue in the direct response advertising and has no current intentions of disseminating the same claims again, ERSP concluded that it was appropriate and the best use of the program resources to administratively close the matter pursuant to the aforementioned section of the ERSP Policy and Procedures.


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