Markets Wired

The U.S. Court of Appeals for the Seventh Circuit has upheld a district court ruling requiring marketers of the “Q-Ray Ionized Bracelet” to give up almost $16 million in net profits as part of a maximum $87 million they must pay in refunds to consumers.

In a decision issued on January 3 and written by Chief Judge Frank Easterbrook, the court concluded, “The magistrate judge did not commit a clear error, or abuse his discretion, in concluding that the defendants set out to bilk unsophisticated persons who found themselves in pain from arthritis and other chronic conditions.” The court found that the defendants’ claims about how their product worked, for example, through “ionization” or “enhancing the flow of bio-energy” were “blather.” Judge Easterbrook wrote, “Defendants might as well have said: Beneficent creatures from the 17th Dimension use this bracelet as a beacon to locate people who need pain relief, and whisk them off to their homeworld every night to provide help in ways unknown to our science.”

The FTC filed its case in May 2003, alleging that QT Inc., Q-Ray Company, and Bio-Metal, Inc., located in Illinois, and their owner, Que Te Park, also known as Andrew Q. Park, made false and misleading advertising claims that the Q-Ray bracelet provided immediate and significant pain relief and deceptively advertised their refund policy, in violation of Sections 5 and 12 of the FTC Act. In September 2006, the federal district court in Chicago found in favor of the FTC. In November 2006, the court required the defendants to turn over a minimum of $22.5 million in net profits and up to $87 million in refunds to consumers who bought the bracelets between January 1, 2000 and June 30, 2003, when the bracelet was advertised on infomercials and Internet Web sites, and at trade shows. The district court later reduced the minimum disgorgement amount to $15.9 million, which the appellate court has upheld.

The appellate court rejected the defendants’ argument that the magistrate judge had held the defendants to too high a standard of proof for their purported therapeutic claims about the
bracelet and found that the claims must be based on science. The court found that “proof is what separates an effect new to science from a swindle” and that the defendants “have no proof,” stating that the “tests” the defendants relied on were “bunk.” The court also rejected the defendants’ contention that testimonials could support their claims — the defendants could not show that the testimonialists would not have enjoyed the same pain relief even if they had not worn the bracelet. “That’s why the ‘testimonial’ of someone who keeps elephants off the streets of a large city by snapping his fingers is the basis of a joke rather than proof of cause and effect,” stated the court.

The appellate court also rejected the defendants’ argument that because their bracelet conferred a benefit to consumers through its placebo effect, they were vindicated in making their false therapeutic claims. The court held that the Federal Trade Commission Act “lacks an exception for ‘beneficial deceit’.” The court noted, “Deceit such as the tall tales that defendants told about the Q-Ray Ionized Bracelet will lead some consumers to avoid treatments that cost less and do more . . .”.

The court also found that the defendants deceived consumers who purchased online and received only a 10-day return period when the infomercials promised a 30-day refund and suggested that consumers purchase online. “The disclosure of this shorter period was buried several clicks away in the web site” and did not ameliorate the infomercial time frame upon which “reasonable consumers” could rely, the court stated.

The Q-Ray defendants are currently in Chapter 11 bankruptcy in the United States Bankruptcy Court for the Northern District of Illinois.

Copies of the decision are available from the FTC’s Web site at http://www.ftc.gov and the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, click http://www.ftc.gov/ftc/complaint.shtm or call 1-877-382-4357. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to more than 1,600 civil and criminal law enforcement agencies in the U.S. and abroad. For free information on a variety of consumer topics, click http://ftc.gov/bcp/consumer.shtm.