SEATTLE - Attorney General Rob McKenna today announced a $5 million multi-state settlement with the manufacturer of a supposed “male enhancement” pill advertised in TV spots featuring a character named “Smiling Bob.”
Attorneys general in several states and the District of Columbia reached the agreement with Steve Warshak of Cincinnati, Ohio, and his dietary supplement firms Berkeley Premium Nutraceuticals, Lifekey Inc., Boland Naturals Inc., Warner Health Care, and Wagner Nutraceuticals.
The states claim that when consumers made an initial order of a “free” 30-day trial of dietary supplement pills, Berkeley representatives failed to tell them they would automatically receive additional shipments and be billed $39. The company also allegedly often made it difficult for consumers to cancel shipments or get their money back.
“Consumers have the right to know all the terms of a so-called 'free' offer,” Attorney General Rob McKenna said. “They also have a right to know that a product works as advertised.”
The states also allege that Berkeley made unsubstantiated claims about the health benefits and effectiveness of its products.
“Berkeley’s ads resemble those for genuine pharmaceutical drugs, but the company’s products are not regulated by the U.S. Food & Drug Administration,” McKenna said. “This settlement sends a message to supplement manufacturers that any claims about the effectiveness of such products must be supported with scientific evidence and comply with the law. Furthermore, bogus ‘free’ claims will not be tolerated.”
Berkeley will pay the states $2.5 million for investigation and litigation costs. Washington’s share is $25,000. If the defendants fail to pay, they will also owe a civil penalty of $2.5 million to the states.
The company will also pay restitution to consumers who purchased products. Thousands of Washington consumers are believed to have purchased products. The Attorney General’s Office has received 27 written complaints concerning Berkeley.
In the settlement, Berkeley and Steve Warshak deny the states’ allegations but agreed to:
- Stop using the word “free” in advertising unless all the terms and conditions related to the free offer are disclosed to the consumer and comply with state and federal laws.
- Not make any health claims about products that they cannot support with scientific evidence.
- Disclose information about any automatic shipments, memberships, refunds and guarantee procedures prior to a sale.
- Record all telemarketing calls and retain them for one year.
- Provide consumer restitution for all consumers who file complaints with the Attorney General’s office, the Better Business Bureau, or Berkeley within 90 days of the date of the settlement.
- Berkeley’s products include pills purported to address numerous physical ailments, improve memory, reduce the symptoms of menopause, promote weight loss and fight aging. The company is most notably known for its Enyzte supplement, advertised by a grinning man named “Smiling Bob” and said to enhance sexual function.
The companies’ dietary supplements include Altovis, Avlimil, Avlimil Complete, Dromias, Enzyte, Mioplex, Ogoplex, Numovil, Pinadol, Prulato, Rogisen, Rovicid, Suvaril, Nuproxi, and Rudofil.
The following states participated in the settlement: Arkansas, Florida, Missouri, North Carolina, Ohio, Oregon, Pennsylvania, Virginia, Washington, and Wisconsin, as well as the District of Columbia. Other states, including California, Illinois, Kansas, Mississippi, Montana and Vermont, are expected to file similar settlements in their respective state courts soon.
The states’ settlement does not impact a separate federal case involving criminal charges against Berkeley. Several former company executives pled guilty this month to fraud conspiracy charges.
Consumers who purchased supplements from Berkeley companies may request a refund by filing a complaint with the Attorney General’s Office online or by mail. Complaints must be submitted by May 29, 2006.
Consumer who previously filed complaints do not need to resubmit their complaints; they will receive a refund within 60 days.
Refund requests can be made online at www.atg.wa.gov. Click on “File a Complaint.” Consumers can also call 1-800-551-4636 to receive a form by mail.
For more information about refund requests, call 1-800-551-4636.
Media Contacts: Kristin Alexander, Public Information Officer, (206) 464-6432
Doug Walsh, Assistant Attorney General, (253) 593-2256