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Posted on Sun, Jul. 13, 2003 | |
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Diet aid endorsed by DJs was sham, experts say Star-Telegram Staff Writer
The upbeat message would be alluring to any weight-conscious person during the holidays. A rock disc jockey known as "Jeff K" told North Texas listeners he had lost 36 pounds while eating whatever he wished. "I ate so much over Thanksgiving, I still have turkey burps," he said during a December 2000 broadcast on Dallas-based KKMR/93.3 FM, according to the Federal Trade Commission. "Now, I'm ready for Christmas. "So bring it on, Grandma -- the honey-baked ham, the apple pie, the Christmas cookies. I'm not afraid because I've got Body Solutions Evening Weight Loss Formula." The DJ, whose real name is Jeffrey David Kovarsky, was among legions of paid endorsers around the country who pitched Texas-made Body Solutions, which promised: "Lose weight while you sleep." For almost three years, the radio testimonials were difficult to avoid and all but indistinguishable from regular programming. DJs insisted that no one needed to exercise or forsake pizza and doughnuts. Just take the strawberry-flavored formula at night, three hours after eating, they said. But government experts say Body Solutions was a sham, and the company that made it is going out of business. Its quick rise and fall is more than just another tale of a weight-loss product failing to live up to outrageous claims, media watchdogs and federal regulators say. It underscores how commercial radio can be manipulated by a big-spending sponsor with a questionable product. "They picked personalities who had a loyal following -- DJs who, if they asked listeners to stop at the side of the road and honk their horns, they'd do it," said Tom Carter, a Dallas-based FTC lawyer who investigated the case. Christian and Spanish-language stations aired the testimonials, as did those targeting African-American audiences. Well-known personalities at some of the highest-rated stations in North Texas bragged about their weight loss. A New York-area DJ spiced his spiel with folksy Yiddish expressions. Baseball announcers did testimonials. Even Mark Cuban, the billionaire Dallas Mavericks owner, extolled the virtues of Body Solutions. Seamlessly segueing from sports chatter, weather bulletins and traffic reports, the personalities -- eventually 678 voices on 755 stations in 110 U.S. cities -- promised weight loss of as much as 40 pounds a month. An estimated 1.5 million people shelled out $190 million from 1999 through last year for the product, which ranged in price from $39.95 to $60 for a 15-ounce bottle, the FTC said. Body Solutions' creator, a former tabloid photographer named Harry Siskind, 48, earned millions. Today, Siskind's San Antonio enterprise is in a shambles. The FTC spent two years investigating the company and found that the research used to support its advertising claims was "fatally flawed." Customers demanded refunds and filed suit when they couldn't get their money back. Attorneys general in several states, including Texas, began their own investigations. Last year, Siskind's company, Mark Nutritionals, filed for bankruptcy. This spring, the company began to liquidate its assets after Texas health inspectors seized its remaining inventory. Creditors, including the radio networks whose personalities pitched the product, are demanding $37 million in unpaid bills. Lawyers for angry customers are seeking more than $190 million. The state of Texas alone wants $18 million. And attorneys say there's less than $3 million in assets to divide. Siskind, reached at his home in San Antonio, declined to be interviewed, citing the pending lawsuits. Prompted by the Body Solutions incident, the FTC is working on voluntary guidelines to warn the media about advertisements that promise more than the products can deliver. The advisory is expected to be released in several months. But although radio executives said they would welcome such voluntary rules, managers of several North Texas stations said they see nothing unethical about the weight-loss testimonials. The endorsers, they said, sincerely believed in the product. Their real problem with Body Solutions, they said, was financial. "It just left a bad taste in everyone's mouth," said Pete Dits, general manager of WBAP/820 AM, where morning DJ Hal Jay and traffic reporter Laura Houston touted their weight loss. "Extending credit to these people was something a lot of these stations did, and every one of them got burned. They wrote off a lot of money." Celebrities move products What set Body Solutions apart from countless similar products was Siskind's use of a network of trusted local radio voices to peddle it, said Derald "Woody" Johnson, a San Antonio DJ who gave a testimonial of his own before becoming Siskind's $225,000-a-year coordinator of testimonials. "This was Harry Siskind and his wife, Patti, who will be remembered for one of the great advertising success stories," he said. But even Siskind, who created the liquid concoction after buying into a company working on a weight-loss cookie, had reservations about using sales pitches by radio talent. "Quite frankly, I didn't think it would work," Siskind said at a North San Antonio Chamber of Commerce luncheon in March 2001, according to a San Antonio Express-News report. Trial testimonials by a San Antonio radio personality named Eliza Sonneland "launched" Body Solutions in 1999 by quickly netting $3,400 in sales, he told the audience. Even then, there were challenges. "At the outset, Harry had difficulty getting DJs to take his money because they thought it was just another 'snake-oil' product. But it worked, it absolutely worked, for so many thousands of people," said Johnson, who cited the company's research and his own experience. There were no scripts, but the endorsers were given key points to make, Johnson said in a telephone interview from Columbus, Ohio. Numerous DJs and other on-air talent signed up in San Antonio, around the state, then around the nation. More than $1 million a year was spent in the Fort Worth-Dallas market alone, according to an estimate by WBAP's Dits. The FTC estimates that upwards of $65 million was plowed into advertising, 90 percent of it on radio. Siskind's radio blitz was possible because the Federal Communications Commission loosened regulations two decades ago, said Fritz Messere, chairman of the communications department at the State University of New York at Oswego. Stations were no longer obliged to maintain air logs, which ensured a distinction between paid spots and program segments. "The FCC in effect was saying, 'We don't really care what the advertising content is unless you are doing something deceptive,' " said Messere, an FCC assistant commissioner in the mid-1980s. "It sort of gives free license to sales managers to have a pitch integrated into a program." Several area DJs say they're still believers. Rudy Valentine, a rhythm-and-blues DJ known as "Rudy V" on KRNB/105.7 FM, and Justin "The Redneck" Frazell of KPLX/99.5 FM "The Wolf," both maintain that they lost weight by using Body Solutions. Valentine said he dropped 31 pounds, and Frazell reported losing 15. "The only exercise I was doing was a softball game on Sundays for an hour, and I had been doing that before," said Frazell, who began the spots while he was a traffic reporter at KLIF/570 AM and continued them on The Wolf, where he does traffic and hosts a weekend Texas music show. Kovarsky, 38, the DJ known as "Jeff K" on KKMR, which is now KDBN/93.3 FM "The Bone," declined to comment. Johnson said he warned celebrity endorsers that they risked losing the $200 to $300 a month in fees, and their employers thousands more, if the spots made outlandish claims. "We told them that every word out of your mouth must be the truth, or we'd rip the account from their station," Johnson said. Siskind, however, told the FTC that DJ endorsers initially were not required to take Body Solutions. "I told the talent to speak from their heart, not overembellish," Johnson said. "Don't say it cured cancer. I told them to tell stories." Listeners believe The testimonials worked on Judy Pfenninger, a 57-year-old social worker with a Dallas homeless center, the Stew Pot. "They were very convincing," the Garland woman said. The fact that the spots aired on a religious station gave them more credibility, Pfenninger said. KLTY/94.9 FM, a contemporary Christian station in Dallas, confirmed running the spots, but referred questions to its corporate parent in California, which did not respond. Pfenninger spent more than $200 on Body Solutions over four months in 2001. She lost no weight until she stopped taking it and began exercising and eating healthful food, she said. When Ivonne Perez of Grand Prairie complained that she lost no weight while using the product, a Body Solutions telemarketer told her she wasn't following the formula's exact regimen. She had heard of the weight-loss product on a Spanish-language station, KLNO/94.1 FM "Estéreo Latino." A data entry clerk for a Dallas law firm, Perez said the company declined to give her a refund when a second $56 bottle didn't work. Dallas retiree Patricia Quested tried Body Solutions on the recommendation of KVIL/103.7 FM morning show news director Julie DeHarty -- and gained 3 pounds. DeHarty, who now does testimonials for a surgeon who performs laser eye surgery, declined to comment. In his testimony to the FTC, Siskind said he did not offer a money-back guarantee. But the San Antonio Lightning, an alternative weekly newspaper, reported that Siskind issued refunds at one point to get an "unsatisfactory" rating by the Better Business Bureau removed. Something in human nature makes people want to believe extravagant weight-loss claims, said Marion Nestle, chairman of New York University's department of nutrition and author of Food Politics: How the Food Industry Influences Nutrition and Health. "It's a triumph of hope over experience, and the marketers know how to exploit it better than we can imagine," Nestle said. "There's almost always a grain of truth, components and chemicals that raise metabolism, but never enough to burn off weight. "No one wants to do the down and dirty of weight loss because eating less is no fun at all. It's very unattractive as a concept." Pfenninger, Quested and Perez joined many other customers in complaining to state authorities. By then, FTC attorneys in Dallas said they had quietly launched their investigation after hearing the astounding weight-loss claims while commuting. Career change In his former life as a tabloid photographer, the Miami-reared Siskind was the pursuer. And a keen one. He once hid for weeks in bushes outside a rehabilitation clinic to get the first photo of actor Christopher Reeve in a wheelchair, British journalist Graham Dudman, who collaborated with Siskind, told the San Antonio Express-News. Another time, Siskind spent eight hours in a mangrove swamp to catch supermodel Cindy Crawford in the buff for the racy London tabloid, The People, Dudman told the Express-News. In 1993, three reporters said they saw baseball legend Pete Rose punch Siskind in the parking lot of Rose's restaurant in Boca Raton, Fla., according to The Associated Press. Three years earlier, Siskind had made headlines by sneaking into a federal prison yard to photograph Rose, who was serving a five-month sentence for concealing income from the Internal Revenue Service. After stints as photo editor of The Globe and the New York Post, then an attempt to break into television as a producer, Siskind switched occupations when his wife threatened divorce, he said in testimony to the FTC. He also declared personal bankruptcy in New Jersey in 1997, court documents show. Siskind began training people who wanted to build sales operations with the aim of getting rich quickly. But the operations, known as multilevel marketing, "are not what I'd call kosher," he told FTC attorneys in explaining why he was looking for another business. The birth of Body Solutions Enter Roger Buffaloe, a San Antonio entrepreneur who had met Siskind through multilevel marketing events. Buffaloe, who ran a marketing company called Texas D'Lites, approached Siskind to produce a high-fiber weight-loss cookie. When Texas D'Lites began faltering in 1998, Siskind flew to Texas from his New Jersey home to help Buffaloe, according to the Express-News. Siskind took the helm of the company, but it filed for bankruptcy protection at the end of the year, the newspaper said. With his silent partner, New Jersey attorney Edward D'Allesandro Jr., Siskind bought the company's phone system, and the two began selling their own line of weight-loss supplements. Siskind stayed on in San Antonio, he told the FTC, because he heard the South Texas metropolis was the "No. 1 fattest city in the country." "If you are going to try a [diet] product, you want to try it where you at least have a fighting chance," he explained. He named the company Mark Pharmaceuticals after his late brother-in-law, but changed it to the more vague Mark Nutritionals on the advice of his lawyers. He told the FTC he formulated a cocktail of weight-loss ingredients after doing a "lot of reading and talking to a lot of people." The product contained ingredients such as hydrolyzed collagen, fenugreek tea, aloe vera, chromium picolinate, fiber and amino acids. The radio testimonials began building sales. During the second year, millions of dollars started pouring in from people looking for an effortless remedy for their weight problems. In the meantime, Siskind had gone from bankruptcy to the high life. He earned $7 million in 2001, according to financial statements filed with the FTC. Siskind, his wife and his two sons shared two Cadillac DeVilles, two Cadillac Escalade sport utility vehicles, a Ford Thunderbird and a Chevrolet Corvette. The couple invested more than $2 million in a nightclub on San Antonio's famous River Walk. The North San Antonio Chamber of Commerce named a building for Siskind, citing his support and a $150,000 donation. And Siskind enjoyed high-rolling trips to Las Vegas, where he ran up tabs of more than $350,000, according to the financial statements. He paid his wife $500,000 to head Mark Nutritionals' human-resources department. On the airwaves When listeners called to order Body Solutions, staff members in San Antonio would ask for the name of the station that had triggered the purchase, thus determining which endorsers were most effective, Johnson said. Each month, the DJs, sports reporters and traffic reporters sent their recorded spots to Mark Nutritionals, which reviewed them and awarded $500 for the best one, Johnson said. Top spots were shipped back on compact discs to the celebrity endorsers, he said. Kovarsky won for his "turkey burp" spot. Valentine, who was a monthly winner for saying gym workouts weren't necessary, recalls the prize as $1,000. Whatever the amount, the competition turned out to be Siskind's undoing. The two-way traffic of recorded spots showed that Mark Nutritionals issued guidance on how to craft testimonials, the FTC said. "Talk about a revelation," said Carter, the FTC lawyer. "When we got the CDs, I knew we had the case won. They couldn't say it was just some renegades" making false claims. Beginning in 2001, consumer lawsuits seeking class-action status popped up in Florida, Texas, California and Michigan. The Michigan suit also named the endorsers and their stations as defendants. All the consumer cases have been combined into a single class action and brought to San Antonio. But neither the DJs nor their employers are being pursued in court, said Ben Bingham, the attorney now handling the action by consumers. On Dec. 5, 2002, the FTC sued Mark Nutritionals in U.S. District Court in San Antonio, saying that the company falsely claimed that Body Solutions would cause 20 to 40 pounds of weight loss without diet or exercise and that it falsely asserted the results were clinically proven. Siskind and his partner, D'Allesandro, were named as defendants. The same day, Texas Attorney General Greg Abbott sued Mark Nutritionals, Siskind, his wife, his partner and a San Antonio research lab owner in state District Court in Dallas, alleging deceptive trade practices, including making false health claims and running deceptive ads. Illinois and Pennsylvania filed similar suits. In pursuing its case, the FTC hired experts who found that Body Solutions was no more effective than a placebo given to a comparison group. Mark Nutritionals' own studies were either "fatally flawed" or confirmed that the product caused no weight loss, said David Allison, an obesity researcher at the University of Alabama at Birmingham. The Texas company didn't help its case by having its endorser-coach Johnson participate in one of the company's studies. And one satisfied customer cited on the company Web site ("I've lost two dress sizes") was a $30,000-a-year employee and Siskind's stepdaughter, to whom he had given a $137,000 home, the FTC said. Documents also disclosed that Siskind gave the woman and her fiance watches worth $38,700. Moreover, Body Solutions did not contain as much of the active ingredients as the label claimed. But the correct amount wouldn't help in any case. "There is nothing in Evening Formula, in the daily dose provided, that will cause substantial long-term or permanent weight loss," concluded Judith Stern, a Harvard-educated nutrition and obesity expert who is a professor at the University of California at Davis. "There is nothing mysterious about weight loss," Stern said, citing a National Institutes of Health study. "In order to lose weight -- body fat as opposed to body water -- a person has to either decrease their food/calorie intake or increase the amount of calories they burn." Final days Even a turnaround specialist appointed by the bankruptcy court couldn't save Mark Nutritionals. By September, the company had been brought to its knees, not by mounting lawyers' fees to fight consumer suits, but by Siskind's advertising budget, which contributed to losses of $1.5 million a month, said Larry Cochran, 41, the new chief executive. "He refused to listen to anyone," Cochran said. Laying off 100 of the company's 120 employees, slashing advertising and selling both the corporate jet and its building, Cochran said he made the company profitable in 45 days. He toned down the weight-loss claims and moved toward a settlement with the FTC. "The Texas attorney general had a different idea," Cochran said. On Jan. 9, the Texas Department of Health informed Cochran of 82 labeling violations on Body Solutions, carrying a maximum fine of $2.05 million. In February, inspectors confiscated hundreds of thousands of bottles still carrying weight-loss claims deemed false. Abbott, the Texas attorney general, wanted Body Solutions "off the market no matter what," Cochran said. "And the creditors just didn't want to keep spending the money to keep fighting the attorney general." As the case winds down, the FTC says it is trying to get money returned to buyers while working to prevent future schemes. The commission will release voluntary guidelines later this year, cautioning the media to be leery of advertising claims that cannot possibly be true, said Richard Cleland, assistant director of the FTC's advertising practices division in Washington. " 'Lose 10 pounds without diet and exercise,' " Cleland said, "is not going to happen. And the media shouldn't be accepting ads making those claims." Researchers Maryjane O'Halloran, Cathy Belcher and Marcia Melton contributed to this report. Barry Shlachter, (817) 390-7718 bshlachter@star-telegram.com |
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