KABOOM! Federal Judge Was Right When He Ordered Marketers To Pay $48.2 Million In False-Advertising Case Brought By FTC, Appeals Panel Rules; ‘Complete Absence Of Support’ For Most Claims Made About Supreme Greens And Coral Calcium Dietary Supplements

UPDATED 11:44 A.M. EDT (U.S.A.) So, you want to tell customers that your products cure diseases ranging from cancer to Parkinson’s and multiple sclerosis? And when critics and investigators and lawyers begin to ask tough questions, you want to deflect?

And when a federal judge orders you to pay $48.2 million for making deceptive claims, you want to turn to the U.S. Court of Appeals and claim the critics got it all wrong, the FTC got it all wrong, expert witnesses got it all wrong  and the judge who ordered you to pay got it all wrong — and you want the appeals court to believe your claims were “mere puffery and were mollified by disclaimers?”

Get ready to write a big check and return your ill-gotten gains: The U.S. Court of Appeals for the First Circuit has upheld the order to pay issued by U.S. District Judge George O’Toole in a case involving what the FTC described as the “phony health claims” made by marketers of dietary supplements known as “Supreme Greens” and “Coral Calcium.”

Infomercial pitchman Kevin Trudeau hawked the purported benefits of coral-derived calcium on TV, settling the FTC claim for $2 million and a ban from making infomercials for products other than books. The FTC action that led to the appeal by other defendants was brought in 2004.

The ruling by the appeals court upholding the $48.2 million penalty, however, cites passages from an infomercial in which Trudeau asked Robert Barefoot — referred to in court filings as a “purported” expert — questions.

“Barefoot claimed that all diseases are caused by a condition called acidosis,” according to court documents. Here is part of what Barefoot said  (red added):

“Are you getting the minerals? And if you’re not, you will become acidic and you will get one of the major diseases. You can have heart disease, cancer, lupus, fibromyalgia, multiple sclerosis. Name the disease, they’re all caused by acidosis.”

Barefoot then claimed that calcium derived from Okinawan coral cured cancer and helped multiple-sclerosis patients emerge from their wheelchairs.

“[W]e’ve been studying the coral calcium and I can tell you there are tens of millions of people, millions of testimonials. I’ve had 1,000 people tell me how they’ve cured their cancer. I’ve witnessed people get out of wheelchairs with multiple sclerosis just by getting on the coral.”

“Barefoot asserted that coral-derived calcium was an effective cure for these diseases because it renders the body more alkaline, thereby curing acidosis,” according to court filings.

The appeals filing cites infomercial exchanges between Trudeau and Barefoot (bolding added):

Trudeau (host ): Pain, talk about pain. Read in your book if a person has pain, muscle
pain, joint pain –

Barefoot: Yes, yes.

Trudeau: – they take calcium –

Barefoot: Yes.

Trudeau: – their body turns from acid to alkaline, pain goes away.

Barefoot: That’s exactly –

Trudeau: Is that common?

Barefoot: Yes, yes, very common.

Deflections and ambiguities then became part of the case, according to court filings (bolding added):

“Barefoot went on to claim that coral-derived calcium is superior to other sources of calcium because it is 100% bioavailable, meaning that all coral-derived calcium that is ingested is also absorbed into the body.

“To bolster his claims, Barefoot noted that unspecified articles from the Journal of the American Medical Association and the New England Journal of Medicine ‘said that calcium supplements reverse cancer . . . that’s a quote.'”

“The infomercial directed potential customers to call an 800 number, on the other end of which DMC-employed telemarketers would follow a script directing them to tell potential customers that the product Coral Calcium would be 100% absorbed by their bodies and would combat degenerative diseases by rendering an acidic body more alkaline.

“Telemarketers were also directed to tell sick customers that they should take higher doses of Coral Calcium, up to three times the standard dose. During the relevant time period (from January 2002 to July 2003), the Coral Calcium infomercial generated $54,034,394.82 in sales . . .”

In a passage from the appeal documents in which the panel referred to a deposition by Barefoot in the case, the panel raised again the issues of defection and ambiguity (bolding added):

“Indeed, Barefoot’s deposition testimony primarily relies on appeals to generic authority; his standard rhetorical practice is to assert that there are myriad studies that support a given claim, without identifying any specifically,” the appeals panel noted.

It footnoted two examples:

“For example, Barefoot claims that he ‘hired the No. 1 scientist in America . . . and he did a peer-review study all over the world and came up with thousands and thousands of references'”; and that ‘I could load you up where it would take you ten years to get out of this building before you read all the people that say calcium prevents cancer'”; and that “[t]ens of thousands of scientists are saying that [calcium prevents cancer], and I can show you the documents.'”

“For example, when asked about the public availability of these uncountable studies, Barefoot said ‘I have just finished a book called Let’s Cure Humanity, in which I give you 1,000 scientific references. You’re asking for them. I’m giving them to you. I will also give you 100 scientific quotations from the world’s best scientists, and the quotations are startling: reverses PMS, it reverses cancer; that it reverses diabetes . . . ..”

In upholding Judge O’Toole’s findings and the $48.2 million judgment, the appeals panel ruled that he had applied the court’s “equitable authority to fashion an appropriate remedy, ordering the Defendants to cure their customers in a way that their bogus supplements could not.”

O’Toole issued the payment order in August 2009, requiring infomercial pitchman Donald W. Barrett, Robert Maihos and their two companies — Direct Marketing Concepts Inc. and ITV Direct Inc. — to pony up for false advertising.

Read the decision by the appeals panel.

In a settlement with the FTC in 2004, Barefoot agreed not to make deceptive claims. He disputes that he ever did anything wrong in touting the efficacy of coral calcium.

“We have cooperated with the FTC, and have reached a settlement, whereby, even though Barefoot is innocent, he pleads guilty and thereby avoids a very expensive trial, which even if he won, would not compensate him for his losses,” his website notes.