[Federal Register Volume 79, Number 182 (Friday, September 19, 2014)]
[Notices]
[Pages 56375-56377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22388]
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
[File No. 122 3287]
John Matthew Dwyer III; Analysis To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
-----------------------------------------------------------------------
SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices. The attached Analysis to Aid Public Comment describes both
the allegations in the draft complaint and the terms of the consent
order--embodied in the consent agreement--that would settle these
allegations.
DATES: Comments must be received on or before October 14, 2014.
ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/healthylifedwyerconsent online or on
paper, by following the instructions in the Request for Comment part of
the SUPPLEMENTARY INFORMATION section below. Write ``In the Matter of
John Matthew Dwyer III, a/k/a Matthew Dwyer; File No. 122 3287'' on
your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/healthylifedwyerconsent by following the
instructions on the web-based form. If you prefer to file your comment
on paper, mail your comment to the following address: Federal Trade
[[Page 56376]]
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the
following address: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex
D), Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: Elizabeth Nach, Bureau of Consumer
Protection, (202-326-2611), 600 Pennsylvania Avenue NW., Washington, DC
20580.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34,
notice is hereby given that the above-captioned consent agreement
containing consent order to cease and desist, having been filed with
and accepted, subject to final approval, by the Commission, has been
placed on the public record for a period of thirty (30) days. The
following Analysis to Aid Public Comment describes the terms of the
consent agreement, and the allegations in the complaint. An electronic
copy of the full text of the consent agreement package can be obtained
from the FTC Home Page (for September 11, 2014), on the World Wide Web,
at http://www.ftc.gov/os/actions.shtm.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before October 14,
2014. Write ``In the Matter of John Matthew Dwyer III, a/k/a Matthew
Dwyer; File No. 122 3287'' on your comment. Your comment--including
your name and your state--will be placed on the public record of this
proceeding, including, to the extent practicable, on the public
Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a
matter of discretion, the Commission tries to remove individuals' home
contact information from comments before placing them on the Commission
Web site.
Because your comment will be made public, you are solely
responsible for making sure that your comment does not include any
sensitive personal information, like anyone's Social Security number,
date of birth, driver's license number or other state identification
number or foreign country equivalent, passport number, financial
account number, or credit or debit card number. You are also solely
responsible for making sure that your comment does not include any
sensitive health information, like medical records or other
individually identifiable health information. In addition, do not
include any ``[t]rade secret or any commercial or financial information
which . . . is privileged or confidential,'' as discussed in Section
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR
4.10(a)(2). In particular, do not include competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential
treatment, you must file it in paper form, with a request for
confidential treatment, and you have to follow the procedure explained
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept
confidential only if the FTC General Counsel, in his or her sole
discretion, grants your request in accordance with the law and the
public interest.
---------------------------------------------------------------------------
\1\ In particular, the written request for confidential
treatment that accompanies the comment must include the factual and
legal basis for the request, and must identify the specific portions
of the comment to be withheld from the public record. See FTC Rule
4.9(c), 16 CFR 4.9(c).
---------------------------------------------------------------------------
Postal mail addressed to the Commission is subject to delay due to
heightened security screening. As a result, we encourage you to submit
your comments online. To make sure that the Commission considers your
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/healthylifedwyerconsent by following the instructions on the web-
based form. If this Notice appears at http://www.regulations.gov/#!home, you also may file a comment through that Web site.
If you file your comment on paper, write ``In the Matter of John
Matthew Dwyer III, a/k/a Matthew Dwyer; File No. 122 3287'' on your
comment and on the envelope, and mail your comment to the following
address: Federal Trade Commission, Office of the Secretary, 600
Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580,
or deliver your comment to the following address: Federal Trade
Commission, Office of the Secretary, Constitution Center, 400 7th
Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If
possible, submit your paper comment to the Commission by courier or
overnight service.
Visit the Commission Web site at http://www.ftc.gov to read this
Notice and the news release describing it. The FTC Act and other laws
that the Commission administers permit the collection of public
comments to consider and use in this proceeding as appropriate. The
Commission will consider all timely and responsive public comments that
it receives on or before October 14, 2014. You can find more
information, including routine uses permitted by the Privacy Act, in
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission (``FTC'' or ``Commission'') has
accepted, subject to final approval, an agreement containing a consent
order from John Matthew Dwyer III, a/k/a Matthew Dwyer (``Dwyer'').
The proposed consent order (``proposed order'') has been placed on
the public record for thirty (30) days for receipt of comments by
interested persons. Comments received during this period will become
part of the public record. After thirty (30) days, the Commission will
again review the agreement and the comments received, and will decide
whether it should withdraw from the agreement or make final the
agreement's proposed order.
This matter involves advertising for HealthyLife Sciences, LLC's
Healthe Trim line of weight loss dietary supplements (``Healthe
Trim''). The complaint alleges that Dwyer, a co-founder of HealthyLife
Sciences, LLC, and former chief executive officer and spokesman for
Healthe Trim, violated Sections 5(a) and 12 of the Federal Trade
Commission Act by making false or unsubstantiated representations that
Healthe Trim would cause rapid and substantial weight loss, including
as much as 35, 130, and 165 pounds. Dwyer also claimed that users would
lose weight without dieting, and that Healthe Trim would burn fat,
increase metabolism, and suppress appetite. The complaint also alleges
that Dwyer violated Sections 5(a) and 12 by falsely representing that
Healthe Trim is clinically proven to cause weight loss.
The proposed order includes injunctive relief that prohibits these
alleged violations and fences in similar and related violations. For
purposes of the order, ``Covered Product'' means any dietary
supplement, food, or drug.
Part I of the proposed order bans Dwyer from manufacturing,
marketing, or distributing any weight-loss product or program, or
assisting others in any of the foregoing.
Part II of the proposed order prohibits any representation about
the health benefits, performance, or efficacy of any Covered Product,
unless it is non-misleading and supported by competent and reliable
scientific evidence that is sufficient in quality and quantity based on
standards generally accepted in the relevant scientific fields, when
[[Page 56377]]
considered in light of the entire body of relevant and reliable
scientific evidence, to substantiate that the representation is true.
For purposes of this Part, competent and reliable scientific evidence
is defined as tests, analyses, research, or studies that have been
conducted by qualified persons in an objective manner and are generally
accepted in the profession to yield accurate and reliable results. When
that evidence consists of human clinical tests or studies, Dwyer must
maintain all underlying or supporting data and documents that experts
in the field generally would accept as relevant to an assessment of
such testing.
Part III of the proposed order prohibits Dwyer from misrepresenting
the existence, contents, validity, results, conclusions, or
interpretations of any test, study, or research in connection with the
manufacturing, labeling, advertising, promotion, offering for sale, and
sale or distribution of any Covered Product.
Part IV provides a safe harbor for representations permitted under
any tentative final or final standard promulgated by the Food and Drug
Administration (``FDA''), any new drug application approved by the FDA,
or FDA regulations pursuant to the Nutrition Labeling and Education Act
of 1990 or the FDA Modernization Act of 1997.
Triggered when the human clinical testing requirement in Part II
applies, Part V of the proposed order requires Dwyer to secure and
preserve all underlying or supporting data and documents generally
accepted by experts in the field as relevant to an assessment of the
test, such as protocols, instructions, participant-specific data,
statistical analyses, and contracts with the test's researchers. There
is an exception for a ``Reliably Reported'' test, defined as a test
published in a peer-reviewed journal that was not conducted,
controlled, or sponsored by Dwyer, his affiliates, or others in the
manufacturing or supply chain. Also, the published report must provide
sufficient information about the test for experts in the relevant field
to assess the reliability of the results.
Parts VI through IX of the proposed order require Dwyer to: Deliver
a copy of the order to principals, officers, directors, and other
employees having responsibilities with respect to the subject matter of
the order; notify the Commission of changes in employment that might
affect compliance obligations under the order; and file compliance
reports with the Commission.
Part X provides that the order will terminate after twenty (20)
years, with certain exceptions.
The purpose of this analysis is to facilitate public comment on the
proposed order, and it is not intended to constitute an official
interpretation of the complaint or proposed order, or to modify the
proposed order's terms in any way.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2014-22388 Filed 9-18-14; 8:45 am]
BILLING CODE 6750-01-P