In response to more than 350 complaints lodged by Texas consumers, the Consumer Protection Division of Texas Attorney General Greg Abbott’s office sought relief from Judge Bonnie Sudderth of the 352nd District Court of Tarrant County, to enjoin Texas DTPA violations by a dietary supplement distributor regarding the sale of an acai berry supplement called Acai Berry Maxx. The Attorney General sought a permanent injunction against what his office described as ongoing deceptive trade practices and requested up to $250,000 in civil penalties to be assessed against the vendor for each separate violation.
The lawsuit primarily focused on a website advertisement which offered a “free trial” sample of the product, which the Attorney General contended was not, in fact, free. In addition, the Attorney General argued that the advertisement itself was deceptive. In large print, Acai Berry Maxx was advertised as the “#1 Recommended Super Food” which would “reduce the risk of heart disease, Alzheimer’s disease, cancer and premature aging.” Yet, the advertisement also contained language in fine print stating that the product was “not intended to diagnose, treat, cure or prevent any disease.”
As a part of the sales pitch, online consumers were given four minutes, during which time they were told they could take advantage of a “no obligation,” “free trial offer,” but after which time the offer would expire. During those four minutes, customers were required to provide a credit card number and agree to three single-spaced pages of various “terms and conditions” in order to receive the “free trial offer.” The consumer’s credit cards were immediately billed $5.95 for shipping and handling fees, and by agreeing to the terms and conditions, the consumer enrolled in a “continuity plan” which included monthly shipments of the acai berry product for a total of $85.90 per month. (These monthly purchases would be automatically billed to the consumer’s credit card unless the subscription was cancelled within 14 days of the initial order.)
Numerous consumer complaints were filed with the Attorney General’s Office and the Better Business Bureau as a result of the advertisements and the offer, including allegations that consumers didn’t receive the actual trial sample until after the time had passed to cancel the monthly subscription. Other consumers reported that when they attempted to cancel the subscription, their calls to the telephone numbers provided were not answered and their emails to the web addresses provided were not responded to.
Almost immediately upon the filing of the lawsuit, the parties announced to Judge Sudderth that they had agreed to settle the case. The settlement provided that the distributor would stop selling the acai berry product in the State of Texas and would not sell it at any time in the future. In addition, the vendor also agreed to refund all money requested by former customers and to maintain a customer service website to process and fulfill consumer refund requests for a period of at least six months after the order had been signed.
Judge Sudderth quickly signed an order setting forth the terms of the agreement and permanently enjoining the vendor from making any further false or misleading claims. Specifically, the order required the vendor to cease claiming that the acai berry product would diagnose, cure, mitigate or prevent diseases and to remove from its website purported success stories about celebrities Brad Pitt and Rachel Ray’s alleged use of the product. Finally, the distributor was ordered by Judge Sudderth to pay $200,000 to the Texas Attorney General’s Office as a civil penalty for the deceptive trade practices.
(The Attorney General agreed not to attempt to collect the fine as long as the vendor complied with all other terms of the order, including the permanent injunction against selling acai berry products in the future.)