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Federal Trade Commission v. QT

September 7, 2006

FEDERAL TRADE COMMISSION, PLAINTIFF,
v.
QT, INC., Q-RAY COMPANY, BIO-METAL, INC., QUE TE PARK, A.K.A. ANDREW Q. PARK, AND JUNG JOO PARK, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

"The pain just went away." "Within seconds the pain was gone."

"You don't have to live with pain."

The Q-Ray(r) Ionized Bracelet(r) ("Q-Ray bracelet") achieved tremendous commercial success through a series of 30-minute infomercials. The Federal Trade Commission ("FTC") brings this action claiming Defendants marketed the Q-Ray bracelet in a deceptive and misleading manner by representing that the bracelet provides immediate, significant or complete pain relief and scientific tests prove their pain-relief claims. Defendants deny their advertising was false or misleading. They contend adequate substantiation exists for the advertising claims made in connection with the promotion and sale of the Q-Ray bracelet.

The Court conducted a seven-day bench trial between June 6 and July 11, 2006. The Court has carefully considered the testimony of the witnesses who testified in person and by deposition, the Joint Stipulations of Fact for Trial, the exhibits introduced into evidence, the written submissions of the parties, and the oral arguments of counsel. The counsel on both sides presented the case in a highly professional manner.

The following constitutes the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To the extent certain findings may be deemed conclusions of law, they shall be considered conclusions. Similarly, to the extent matters contained in the conclusions of law may be deemed findings of fact, they also shall be considered findings.

I. NATURE OF THE ACTION

The FTC brings this action under § 13(b) of the Federal Trade Commission Act ("the Act") seeking monetary and injunctive relief for alleged violations of §§ 5 and 12 of the Act.

15 U.S.C. §§ 45(a), 52 and 53(b). The FTC's complaint alleges three violations of the Act by Defendants.

In Count I, the FTC alleges Defendants represented that the Q-Ray bracelet "provides immediate significant or complete relief from various types of pain, including, but not limited to, musculoskeletal pain, sciatic pain, persistent headaches, sinus problems, tendonitis, or injuries." (Comp. ¶ 19). In Count II, the FTC alleges Defendants represented that "tests prove that the [Q-Ray bracelet] relieves pain." (Comp. ¶ 21). The FTC claims these representations were false or Defendants lacked a reasonable basis for these representations in violation of the Act. In Count III, the FTC alleges Defendants falsely represented that QT's 30-day satisfaction guarantee permits "consumers to readily obtain a full refund of the purchase price if they return the [Q-Ray bracelet] within 30 days." (Comp. ¶ 24). The Defendants deny these allegations.

II. ISSUES PRESENTED

The following issues are presented:

1. Whether the FTC has met its burden of proving that QT, Inc.'s advertising was likely to mislead a reasonable consumer in violation of the Act. Yes.

2. Whether the FTC has met its burden of proving that QT, Inc.'s advertising represented, without a sufficient basis, that tests prove that the Q-Ray bracelet relieves pain in violation of the Act. Yes.

3. Whether the FTC has met its burden of proving that the Q-Ray bracelet is a device within the meaning of § 12 of the Act. Yes.

4. Whether the FTC has met its burden of proving that QT's refund policy did not permit consumers to readily obtain a refund of the purchase price. Yes.

5. Whether Que Te Park is personally liable for the violations of the Act. Yes.

6. Whether Jung Joo Park is personally liable for the violations of the Act. No.

7. Whether the Court should order equitable relief in the form of consumer redress, disgorgement and restitution. Yes.

8. Whether the FTC has established a basis for permanent injunctive relief. Yes.

III. PROCEDURAL BACKGROUND

On May 27, 2003, the FTC filed a Complaint for Injunctive and Other Equitable Relief ("Complaint") in this action, naming as defendants QT, Inc., Q-Ray Company, Bio-Metal, Inc., Que Te Park, a.k.a. Andrew Q. Park, and Jung JooPark. Stipulated.*fn1

On May 29, 2003, the Court granted the FTC's motion for an ex parte temporary restraining order and asset freeze. Stipulated; Dkt. 2.

On June 11, 2003, the Court entered a stipulated preliminary injunction with asset transfer restrictions and other equitable relief. Stipulated; Dkt. 34; PX 3.

IV. FINDINGS OF FACT

A. THE PARTIES

1. Plaintiff Federal Trade Commission

The FTC is an independent agency of the United States Government created by statute. 15 U.S.C. §§ 41-58. The FTC enforces Sections 5(a) and 12 of the Act, 15 U.S.C. §§ 45(a) and 52, which prohibit, respectively, unfair or deceptive acts or practices, and false advertisements for food, drugs, devices, services, or cosmetics in or affecting commerce. The FTC is authorized to initiate federal district court proceedings, by its own attorneys, to enjoin violations of the Act and secure such equitable relief as may be appropriate in each case, including consumer redress. 15 U.S.C. § 53(b).

2. Defendant QT, Inc.

Defendant QT, Inc. ("QT") is an Illinois corporation with its principal place of business at 500 W. Algonquin Road, Mt. Prospect, Illinois. It transacts or has transacted business in the Northern District of Illinois and throughout the United States. Since at least 1996, QT has advertised, marketed, and sold the Q-Ray bracelet via U.S. media outlets and identical Internet sites, www.qray.com, www.q-ray.com, and www.bio-ray.com. Stipulated.

3. Defendant Q-Ray Company

Defendant Q-Ray Company ("QRC") is an Illinois corporation with its principal place of business at 500 W. Algonquin Road, Mt. Prospect, Illinois. It transacts or has transacted business in the Northern District of Illinois and throughout the United States through the distribution of the Q-Ray bracelet. Stipulated.

QRC has performed the fulfillment operations of QT, including shipping the Q-Ray bracelet to consumers and receiving returned products from consumers since mid-2002. Stipulated.

4. Defendant Bio-Metal, Inc.

Defendant Bio-Metal, Inc. ("Bio-Metal"), which was formerly known as Bio-Ray International, Inc., is an Illinois corporation with its principal place of business at 500 W. Algonquin Road, Mt. Prospect, Illinois. Stipulated.

5. Defendant Que Te Park

At all relevant times, defendant Que Te Park, also known as Andrew Q. Park ("Que Te Park"), was and is the President of QT, QRC, and Bio-Metal. He resides and/or transacts business in the Northern District of Illinois. Stipulated. He testified at the trial and certain of his deposition excerpts were also introduced as evidence. PX 19.

Que Te Park has been the Chief Executive Officer of QT and QRC since at least 2001. Que Te Park is the sole shareholder of QT and QRC. Stipulated.

6. Defendant Jung Joo Park

Defendant Jung Joo Park is Que Te Park's wife. She resides in the Northern District of Illinois. Stipulated. She testified by means of a deposition. PX 311.

From at least 1987 through June 2003, Jung Joo Park was Secretary of QT. She was listed as Secretary of QT in the company's annual reports to the State of Illinois for the years 1999 through 2002. Jung Joo Park was listed as a Secretary of QT until at least June 2005. From at least 2000 through June 2003, Jung Joo Park was Secretary of QRC. She was listed as Secretary of QRC in the company's annual reports to the State of Illinois for the years 1999 through 2002. Jung Joo Park, as Secretary of those entities, had signatory authority for eight of the ten QT and QRC corporate bank accounts. Stipulated.

Jung Joo Park worked full-time at QT from 2001 through at least August of 2004. She has worked for QT for a total of 15 years. Stipulated. For her $98,000 salary, Jung Joo Park looks after the office when Que Te Park is out of the country. She also helps any place around the office that needs a hand and has no set position. T. 606-07. Jung Joo Park assists QT in areas that are short-staffed, and sometimes, for example, goes to the factory to help with assembly and shipping and handling. Stipulated.

Jung Joo Park assists with employee relations at QT, and she consults with Korean-speaking employees regarding internal conflicts among those employees. Stipulated.

Jung Joo Park was not involved in the marketing of the Q-Ray bracelet. She was not involved in the creation, review, media placement, or production of any of the Q-Ray bracelet infomercials. She had no authority over the customer service department policies. PX 311 at 21-4.

B. FACT WITNESSES

1. Charles Park

Que Te Park's and Jung Joo Park's son, Charles Park, has been employed by QT since approximately 2002 and has served as an executive vice-president since May or June of 2003. He oversees the activities of the vice-presidents of operations, finance, marketing, and sales. He currently reports to Que Te Park. Before that, he was vice-president in charge of information technology and some administrative areas, including some parts of operations and some parts of finances. Stipulated. Charles Park testified at the trial.

2. Crystal Holloway

Crystal Holloway ("Holloway") has been employed by QT as a senior customer service manager since February, 2003. She testified by means of a deposition. PX 312.

3. Elizabeth Ann Ciprian

Elizabeth Ann Ciprian ("Ciprian") was employed at QT from 1990 to 2003. From 1999 to 2003, she was the sales and marketing manager. T. 190-91, 202. She testified at the trial.

4. DeAnn Trapp

DeAnn Trapp ("Trapp") was a graduate student at Northern Illinois University in 2001 and 2002 when she performed two studies involving the Q-Ray bracelet. Her married name is now DeAnn Petitgout. She testified at the trial.

5. Dr. Robert Bratton

Dr. Robert Bratton ("Dr. Bratton") is employed by the Mayo Clinic in the Department of Family Medicine and as an Associate Professor at the Mayo College of Medicine in Jacksonville, Florida. He conducted a clinical trial of the Q-Ray bracelet, which resulted in a published study. PX 280. He testified by means of two depositions. DX 42-3.

6. Linda Hall

Linda Hall ("Hall") is employed at the Mayo Clinic in Jacksonville, Florida. She was a clinical research coordinator who assisted Dr. Bratton in the Q-Ray bracelet study. She testified by means of a deposition. DX 44.

C. EXPERT WITNESSES

Six expert witnesses testified at the trial:

1. Dr. Marc C. Hochberg - FTC Expert

Dr. Marc C. Hochberg ("Dr. Hochberg") is a Professor of Medicine, Professor of Epidemiology & Preventive Medicine, and Head of the Division of Rheumatology & Clinical Immunology at the University of Maryland School of Medicine. Stipulated; PX 293 (Dr. Hochberg's CV). Dr. Hochberg testified as an expert in the fields of: (a) rheumatic diseases, including arthritis and other musculoskeletal disorders; (b) clinical testing related to prevention and treatment of rheumatic diseases; and (c) pain due to rheumatic disease. Stipulated.

2. John P. Wikswo, Jr., Ph.D. - FTC Expert

Dr. John P. Wikswo, Jr. ("Dr. Wikswo") is a Professor of Biomedical Engineering, Professor of Molecular Physiology and Biophysics, Professor of Physics, and Director of the Vanderbilt Institute for Integrative Biosystems Research and Education at Vanderbilt University. Dr. Wikswo testified as an expert in biological physics, biomedical engineering, and electromagnetism. Stipulated; PX 294 (Dr. Wikswo's CV).

3. Michael Feldstein, Ph.D. - Defendants' Expert

Dr. Michael Feldstein ("Dr. Feldstein") has a Ph.D. in statistics from the State University of New York at Buffalo and is the Vice-President for Clinical Services at Medical Device Consultants, Inc. His responsibilities as Vice-President include running the department of clinical services, which seeks to design, conduct, and manage clinical trials for clients. DX 19 (Dr. Feldstein's CV). He testified as an expert in the area of statistics and biostatistics and the conduct of clinical trials. T. 673-79.

4. William A. Tiller, Ph.D. - Defendants' Expert

Dr. William A. Tiller ("Dr. Tiller") is Professor Emeritus from Stanford University in the fields of applied science and materials science. DX 20 (Dr. Tiller's CV). Dr. Tiller testified as an expert in materials science.

5. Dr. Brian Olshansky - Defendants' Expert

Dr. Brian Olshansky ("Dr. Olshansky") is a Professor of Medicine and the director of Cardiac Electrophysiology at the University of Iowa Hospitals. DX 18 (Dr. Olshansky's CV). He testified as an expert in the fields of electrophysiology, complementary and alternative medicine, and the placebo effect.

6. Frank Yurasek, Ph.D. - Defendants' Expert

Dr. Frank Yurasek ("Dr. Yurasek") holds a Masters degree and Ph.D. in Oriental Medicine. DX 21 (Dr. Yurasek's CV). He testified as an expert in the area of eastern Asian and Traditional Chinese Medicine. T. 919, 922-23.

D. OTHER PARK-RELATED FAMILY MEMBERS AND BUSINESSES

1. James Park

Que Te Park's and Jung Joo Park's son, James Park, has worked full-time at QT in creative design since 2000 or 2001 and was listed as a Director of QT, Inc. on the company's 2002 annual report to the State of Illinois. Stipulated.

2. Ion-Ray

Ion-Ray is a Canadian corporation that distributes the Q-Ray bracelet in Canada. Charles Park is an officer, director, and shareholder of Ion-Ray. The other shareholders of Ion-Ray are James Park and Nina Park, Jung Joo Park's children. Ion-Ray received at least $4 million in start-up funding from QT, Inc. Stipulated.

E. THE Q-RAY BRACELET

The Q-Ray bracelet is a C-shaped bracelet with screw caps that is manufactured in Spain by Bio-Ray S.A. PX 55 (brochure); T. 346. The bracelet comes in four sizes: x-small, small, medium and large. PX 55. The bracelet is made in six styles at different price points:

Natural Titan Finish, Standard Silver Plated, Standard Gold Plated, Deluxe Silver Finish, Deluxe Combo and Deluxe Gold Plated. PX 55.

Que Te Park first saw the bracelet in the Barcelona, Spain airport in 1994. It was being sold by Bio-Ray, S.A. as the Bio-Ray bracelet. He purchased the bracelet and he believes it helped relieve his lower back pain. He also purchased one for his wife to relieve her migraines. T. 353-54.

Beginning in 1996, QT began selling the bracelet on a mostly wholesale basis in the United States under the Q-Ray name. QT began selling directly to consumers by means of infomercials in 2000. T. 327.

None of the experts analyzed the composition of the Q-Ray bracelet. Que Te Park represented to the Mayo Clinic that the bracelet is 85% copper and 15% zinc. T. 364-65; PX 180. Although the bracelet is composed of more than 50% copper, Que Te Park acknowledged that the infomercials say the Q-Ray bracelet is not copper. T. 368-69. Que Te Park testified that all of the different compositions of the bracelet and different metal plating used in the various styles do not affect the performance of the Q-Ray bracelet in any way. Each bracelet works the same through ionization. PX 19 at 251:7-252:2.

According to Que Te Park, the Q-Ray bracelet is unique because of the ionization. He testified in his deposition that when he uses the term "ionizing" with respect to the Q-Ray Bracelet's ionizing process, he is referring to a high-voltage process that changes metal conductivity. PX 19 at 252:10-253:1. He testified that it makes the metal more conductive, with less resistance. PX 19 at 253:3-8.

Que Te Park does not know how much electric charge is delivered to the Q-Ray bracelet. Although he has seen a figure of 150,000 volts put out on a technical information sheet by the factory, he does not believe that figure because if it were a secret, the factory would not disclose it. PX 19 at 263:4-264:7; 255:25-257:7.

Que Te Park testified during the trial, however, that he picked the term 'ionized' because "ionized is very simple, very easy to remember." T. 355. Moreover, despite trademarking the term "ionized, " he has no definition for the term and now claims he did not intend to convey to consumers the notion that the Q-Ray bracelet is electrically charged. T. 358-59. He selected the name ionized because the Polaroid Company prevented him from using the name "polarized." T. 360. Que Te Park then testified that the manufacturer called the process that is applied to the bracelets "polarization," meaning that the bracelets are electrically charged and that he uses the term "ionization" to mean "polarization." T. 359-60.

Que Te Park has no idea what the polarization process is supposed to do to the bracelet. Polarization, however, is a shorthand Que Te Park uses to say the bracelet is electrically charged. T. 360. Que Te Park testified that he needs more studies and cannot say that the Q-Ray bracelet affects ions within the body. PX 19 at 246:16-22.

QT does not confirm through independent testing that each bracelet it receives from Bio-Ray S.A., the manufacturer in Spain, is actually ionized. PX 7 at No. 283; PX 8 at No. 360.

QT does not have any tests or studies to prove that the Q-Ray bracelet actually discharges ions. T. 379.

Que Te Park testified that "ionization" has no scientific meaning. He has no idea what the phrase "ionization performance," which appears in his consumer brochures, means. T. 371-72. His testimony on ionization was contradictory and full of obfuscation. He was lacking in credibility. He is a clever marketer but a poor witness.

Que Te Park made up the theory that the bracelet works like acupuncture or Eastern medicine. He has no testing or studies to support his theory. T. 379. He testified that anyone can find the theory on Google. T. 376-79.

There was no scientific evidence presented that the Q-Ray bracelet actually receives, retains, or emits an electrical charge or has any properties different from any other bracelet made from the same metals. The Q-Ray bracelet was marketed as an "ionized bracelet" as part of a scheme devised by Que Te Park and the corporate defendants (hereafter collectively referred to as "Defendants") to defraud consumers out of millions of dollars by preying on their desire to find a simple solution to alleviate their physical pain.

F. ADVERTISING AND SALE OF THE Q-RAY BRACELET

1. Advertising Scope

Since at least September 2000, QT, QRC, and/or Bio-Metal advertised, promoted, offered for sale, sold, and distributed the Q-Ray bracelet to the public nationally, using advertisements in print media, the Internet, and on cable television stations such as the Golf Channel, the Learning Channel, USA Network, and the Discovery Channel. T. 327-29; PX 4 at ¶ 12.; PX 7 at No. 27; PX 8 at No. 29. Stipulated as to QT, Inc. only.

QT also has dealers, which are mostly stores, and Internet distributors. The company does not give its dealers advertisements, but asks them to refer to QT's website. QT monitors its distributors' claims. PX 19 at 59:12-61:6.

To induce consumers to purchase Q-Ray bracelets, QT, QRC, and/or Bio-Metal have disseminated or caused to be disseminated at least four different television infomercials, Internet advertisements on www.qray.com, www.q-ray.com and www.bio-ray.com, and a product brochure. The advertisements disseminated include Exhibits A, C, and D to the Complaint. PX 4 ¶ 13; PX 7 at Nos. 58, 61. Stipulated as to QT, Inc. only.

Infomercials for the Q-Ray bracelet aired 42,213 times between April 14, 2001 and June 29, 2003. Short spot television advertisements for the Q-Ray bracelet aired approximately 10,147 times between March 11, 2002 and September 8, 2003. Stipulated.

The first infomercial ("Prime Time infomercial") ran from August 2000 through May 2001. The second infomercial ("Onyx infomercial") ran from June 2001 through October 2001. The third infomercial ("Warren infomercial") ran from November 2001 through April 2002. The fourth infomercial, which is Exhibit A to the Plaintiff's complaint ("Complaint infomercial"), aired from May 2002 through June 2003. Stipulated.

2. Development of the Advertising

QT employed Ciprian between October 1990 and July 2003 and she served as QT's sales and marketing manager from at least 1999 to July 2003. Stipulated. As sales and marketing manager, it was part of Ciprian's job to help create advertisements for the Q-Ray bracelet and market the product. She reported to Que Te Park for approval of the advertisements. T. 201.

Prior to filming the infomercials, the production companies prepared scripts for only the infomercial hosts and voiceovers. Except for the script for the first infomercial, QT reviewed those scripts prior to filming. Stipulated. Ciprian was responsible for verifying the accuracy of the testimonials. T. 221.

QT hired Prime Time Sports to create the Prime Time infomercial in approximately January or February 2000. The first production of the infomercial was tested in August 2000. QT, including Ciprian and Que Te Park, gave Prime Time Sports basic product information that was included in the infomercial. Que Te Park was present during portions of the filming of the Prime Time infomercial. He watched the interview between the host, Mitch Laurence, and Dr. Jeremy Cole. Stipulated.

A lawsuit was filed against QT in approximately December of 2000, about three months after the first infomercial started airing. Because of this lawsuit in California, the Onyx infomercial was created as a re-edited version of the Prime Time infomercial. Stipulated.

After the first infomercial, QT's VP of Marketing or VP for Television Media was generally responsible for creating television advertisements. Loren Skagen and Gene Semmelhack held that position. T. 397-98. Skagen worked together with the infomercial producers to write the scripts for the Warren and Complaint infomercials. PX 19 at 61:21-63:10, 83:7-17, and 86:9-19.

Starting at least with the Warren infomercial, Que Te Park received a report from the vice-president of marketing regarding the creation of the infomercials. Before the film was shot, Que Te Park looked at scripts and corrected things, required that certain language not be used, or required the use of more disclaimers. He also sometimes reviewed semi-finished versions of the infomercial before they were sent to legal counsel. Stipulated.

QT was involved with creating a website for the Q-Ray bracelet. QT believed that television infomercials would increase website sales. Prior to infomercials, QT had modest revenues from its website sales. Those sales increased in September 2000 after the first infomercial began airing. Stipulated.

QT was involved with creating brochures and print advertisements for the Q-Ray bracelet. Plaintiff's Exhibit 55 is a true and correct copy of the brochure that advertised the Q-Ray bracelet. Stipulated.

QT registered the phrase, "NATURAL PAIN RELIEF" as a trademark. QT filed for the trademark on or about March 25, 1999, and the trademark was registered on or about June 18, 2002. Stipulated. QT also trademarked the term "ionized bracelet." T. 335.

Que Te Park exercised final approval authority over QT's television, print, and radio advertisements and brochures before these advertisements and brochures were disseminated.

He also had final approval of advertising copy on the website for the Q-Ray bracelet. PX 8 at Nos. 44-46; T. 337, 385-86.

G. DEFENDANTS' ADVERTISING FOR THE Q-RAY BRACELET CONVEYED THE CLAIM TO THE CONSUMER THAT THE Q-RAY BRACELET PROVIDES IMMEDIATE, SIGNIFICANT OR COMPLETE PAIN RELIEF

Defendants' four infomercials that aired between 2000 and 2003 convey, expressly or by implication, the net impression that the Q-Ray bracelet provides immediate, significant or complete relief from various types of pain, including but not limited to, musculoskeletal pain, sciatic pain, persistent headaches, sinus problems, tendinitis, or injuries. PX 39 and PX 40 (Complaint); PX 46 and PX 47 (Primetime); PX 48 and PX 49 (Onyx); PX 50 and PX 51(Warren Group)*fn2 . These claims are material, false, and were relied upon by consumers in making their purchases of the Q-Ray bracelet.

1. Complaint infomercial (PX 39 and PX 40)

The Complaint infomercial presents apparently satisfied users of the Q-Ray bracelet in order to convey the message that the Q-Ray bracelet provides immediate, significant or complete relief from pain. The Complaint infomercial begins with an unidentified female stating, "I got tingly all over and the pain is gone." PX. 40 at 3:17-18.*fn3 Then, following a narrator's introduction of the Q-Ray bracelet, an unidentified female states that "And I felt this tingly throughout my body and all of a sudden -- I didn't feel the pain anymore." PX 40 at 5:4-8.*fn4 This testimonial is accompanied by the onscreen, written statement "I didn't feel the pain anymore." PX 40 at 5:6. This is immediately followed by Howard Wyckoff stating "I came up here, put [the Q-Ray bracelet] on my wrist, and immediately my shoulder -- I have movement . . . the pain really just went away." PX 40 at 5:12-19.*fn5 This testimonial is accompanied by the onscreen, written statement "the pain just went away." PX 40 at 5:17.

The message that the Q-Ray bracelet provides immediate relief from pain is repeatedly reinforced by the infomercial. The announcer then states that the Q-Ray bracelet is "designed to help the body restore its normal equilibrium the natural way, to reduce pain . . . ." PX 40 at 6:16-18. This is immediately followed by an unidentified male who confirms the narrator's assertion by saying, "My back has been bothering me probably for the last -- I'd say for about the last four or five years. . . . And when he put this [the Q-Ray bracelet] on me, it was almost -- within 10 or 15 seconds, the pain was gone." PX 40 at 6:25 - 7:6. This is further reinforced by the onscreen, written statement, "within seconds the pain was gone." The Complaint infomercial explicitly conveys the message that the Q-Ray bracelet provides immediate relief from back pain.

The immediacy of the pain relief provided by the Q-Ray bracelet is continually reaffirmed. Thus, testimonialist Sheila Thompson states that she "wore it last night and in 24 hours all my pains disappeared from my arm, my hip and my shoulder." PX 40 at 9:12-14.*fn6 Immediately thereafter, Allen Brown states that "[i]t was amazing to me that it worked that quickly." PX 40 at 9:15-16. This was further reinforced by Sandra Kohler's statement that "[i]t's just been over an hourand I don't have any pain," which is trailed by the following colloquy between unidentified female and male testimonialists: "The pain is gone." "The pain is gone?" "Yes." "Right away?" "Yeah, immediately." "Yeah." "It is better." "Better right away." PX 40 at 9:19 - 10:3. These statements clearly communicate and reinforce the immediacy of the pain relief provided by the Q-Ray bracelet.

The infomercial further promotes the efficacy of the Q-Ray bracelet at relieving pain when testimonialist Ken Bruhn relates his observation of various satisfied users:

What I'm amazed at is person after person in line has reported, you know, my pain is gone, my pain is gone. I've never heard anybody and watching this for an hour, I've never seen anybody say, gee, that doesn't help me at all. There's not been one negative response. I don't know how you could beat that.

PX 40 at 10:25 - 11:5. The types of pain the Q-Ray bracelet relieves are then expressly stated by the host, John Early ("Early"):

Time and time again people are telling us their Q-Ray bracelet works wonders to relieve the aches and pains they live with every day. Not just from persistentheadaches, but joint stiffness, injuries, even back pain.

PX 40 at 11:8-12.

The infomercial further reinforces the message of significant or complete pain relief of all types when Early states that "[p]eople who wear a Q-Ray ionized bracelet tell us it's so effective because Q-Ray delivers lasting relief for their pain and discomfort throughout their entire body." PX 40 at 12:19-22. Moreover, the immediate nature of this relief is then reaffirmed when a testimonialist, Noel Bishop states, "Actually, the first night I put it on, I woke up the next morning, I was -- felt great. I've loved it ever since." PX 40 at 13:4-6.

The infomercial repeatedly drives home the same message of immediate, significant or complete relief from pain. Audra Wallace's testimonial states:

The worst thing is the pain in my legs, the soreness, it feels like needles going through my body. He put the bracelet on me and right away I felt the -- like almost a clear sensation in my stomach and then it went to my knees and then it just worked its way up my body.

PX 40 at 13:12-17.*fn7 While Audra Wallace was speaking, the following message appears on the screen: "You don't have to live with pain." PX 40 at 13:22. Thereafter, Early sums up this message: "If you're fed up living with pain and discomfort every day, if you've become convinced you'll live with pain the rest of you're life, don't believe it." PX 40 at 13:23 -14:1.

The message of immediate, significant or complete pain relief from wearing the QRay bracelet is continually reinforced through user testimonials and statements by the announcer. Thus, the following testimonials were used: Allen Brown, who states, "He put this [Q-Ray bracelet] on me. It was almost within 10 or 15 seconds the pain was gone"; an unidentified male, who states, "I put the bracelet on and the pain went away, almost entirely. It just feels so much better"; and Lonnie Everett, who says, "The pain's not there, the stiffness is not there, I have more movement. It's really surprising. It's just been a matter of 15 minutes."*fn8 PX 40 at 14:9-20.

A male announcer then reinforces the message of significant pain relief following the purchase of the Q-Ray bracelet:

If you are one of millions of people suffering from back pain, sciatic pain, persistent headaches, sinus problems, tendinitis, joint dysfunction or injuries, if you've become convinced you will live with pain and discomfort for the rest of your life, don't believe it . . . . Introducing Q-Ray, the original ionized bracelet, made with an exclusive proprietary ionization process that we believe helps restore your body to its -- normal equilibrium the natural way, to reduce pain and increase energy.

PX 40 at 15:7 to 16:5. Again, the vast array of pain is represented to be significantly reduced by the Q-Ray bracelet. This soliloquy is accompanied by the onscreen, written statements, "Reduce Pain" and "People who wear a Q-Ray ionized bracelet tell us they are free from aches and pains!" PX 40 at 15:25, 16:4-5. These representations are followed by directions on how to order the Q-Ray bracelet.

During the 30-minute infomercial, the Q-Ray bracelet's purported significant and immediate efficacy for pain relief is constantly repeated. Thus, testimonialist Bill Wheeler relates how "[h]e cornered me and put a [Q-Ray] bracelet on me for my lower back pain. It's gone." Sandra Wheeler follows up by saying, "It's unbelievable. I have [my Q-Ray bracelet] too, because we both have been back pain sufferers for a long time and I've carried this [pain] in my lower back and it's just a part of my life." Mr. Wheeler then asks about this long time back pain, "Gone?" Mrs. Wheeler replies, "It's gone." PX 40 at 23:18-23. Again, these statements represent that the Q-Ray bracelet will provide immediate, significant or complete pain relief.

Still other testimonialists help convey the same claim. Bill Kleiman states that "[a]s soon as I put the bracelet on, the pain throughout my entire body disappeared." He further informs the viewer that "ever since I put that bracelet on, it's been two years now, I have not had that pain return." PX 40 at 25:7-8, 18-20.*fn9 The latter statement is bolstered by the onscreen, written statement, "After wearing a Q-Ray ionized Bracelet - 'I haven't had the pain return in 2 years.'" PX 40 at 25:16-17.

Similarly, the infomercial presents testimonialist Jeff Brodsky saying that "I put it on and I walked around this show and I came back to the booth an hour later to tell these people that I was pain-free," and an unidentified female states, "My back, I walked in here with pain in my back. I walked in here with pain in my back. It's gone." PX 40 at 26:10-16.

Thereafter, the host, Early, asserts that "[i]f someone close to you is suffering from pain and discomfort day after day, give them a Q-Ray bracelet of their own. They'll absolutely love you for it." Then, the off-screen announcer, as he introduces the ordering procedures, states, "If you or someone you know still suffers from neck aches, back pain, soreness in arms, wrist, knees or feet -- . . . call the number on your screen right now to order your personal Q-Ray ionized bracelet." PX 40 at 28:16-18, 29:1-2. The infomercial then offers yet more testimonials, with an unidentified male stating that "[s]ince I've put it on five minutes ago, I don't have any problem. The pain is gone. It's amazing." This statement is accompanied by the onscreen, written statement, "The pain is gone." PX 40 at 34:22 to 35:2.

Next, the infomercial presents additional testimonials and a brief discourse from Early. First, an unidentified female states that "this is the first time I haven't had pain in my elbow for three months and I'm able to move my wrist and my arm without any pain at all," which is accompanied by the onscreen, written statement, "I haven't had pain for 3 months." Then, Robert Stock says, "We put the Q-Ray on and I went like this (the video depicts him rotating his head and neck to the right), there was no pain, it was amazing. The bracelet had to do it." Ed Willis then says, "I mean, it worked immediately. It went away. Just put it on, just try it. You've got nothing to lose but pain."*fn10 Testimonialist Bill Kleiman returns to say, "I was initially very skeptical of this whole thing. But when I first put that bracelet on, it took the pain away and skepticism went away with the pain." PX 40 at 37:6-16, 38:10-17. The host, Early, then interjects and provides yet another opportunity for the viewer to order the Q-Ray bracelet:

Nobody wants to live with pain and discomfort for the rest of their life. Please don't let skepticism keep you from taking this opportunity right now to dramatically improve the way your body feels. Try your Q-Ray ionized bracelet and experience how much better you can feel starting the very first day, the very first minute you try it on, absolutely risk-free.

PX. 40 at 38:21 to 39:7. Again, these testimonials and assertions from the announcer and host reinforce the claim that the Q-Ray bracelet provides immediate, significant or complete pain relief.

As the infomercial plays to completion, more testimonials and host claims appear. Thus, Bud Kling, after discussing his history of wrist pain, says, "When I put this [Q-Ray] bracelet on and I tried to use it, I could force my wrist in every direction possible and I've experienced no pain whatsoever. PX 40 at 41:6-11.*fn11

Then another testimonialist, Paul Seery, states:

I've had total knee replacements in both of my knees. I had a total of seven major operations. I was experiencing a great deal of difficulty walking. I was on a cane all of the time. I put the [Q-Ray] bracelet on and everything changed. It was as thought a miracle of sorts happened. The pain went away.

I wear it all the time and it works for me.

His statement was reinforced by the onscreen, written statement, "The pain went away - It works for me." PX 40 at 42:4-14.*fn12 The infomercial host, Early, then elaborates about The bracelet's purported efficacy:

Imagine what it must feel like to be able to throw away your cane forever.

Folks, if you're suffering from nagging pain or maybe your body just doesn't work the way it used to, pick up the phone, right now, and start wearing the QRay ionized bracelet for 30 days absolutely risk-free.

PX 40 at 42:16-21. These statements reinforce the clear message that the Q-Ray bracelet immediately provides significant or complete pain relief; indeed, pain relief so significant it allowed an individual with double knee replacements to "throw away [his] cane forever."

The host, Early, also states, near the end of the infomercial, that "if you're someone who suffers from persistent pain in your back, sinuses, headaches, even tendinitis, you need to pick up the phone and order your Q-Ray right now and experience for yourself the amazing improvements that Q-Ray ionized bracelet can make in your life." PX 40 at 45:14-19.

The infomercial continues with more consumer testimonials and one last sales pitch from the host. Testimonialist Howard Wyckoff states that "I'm almost speechless. I mean, it really -- the pain really just went away. I got complete movement in my shoulder and it's not in any pain." PX 40 at 46:22-25.*fn13 An unidentified female then says, "I've had tendinitis in my elbow and bursitis in my shoulder for about three years. Playing golf is a struggle and all the time and it works for me." PX 51 at 16:17 - 17:3. He is also quoted as saying, "The first day I was here. . . I could barely walk. . . Today [after wearing the Q-Ray bracelet]. . . I have walked the length of this building up and down two-and-a-half times and I am comfortable." PX 49 at 30:3-18.

I wear a brace on my arm. And it's gone. It really works." PX 40 at 43:14-17. Early then reappears to conclude, "If you don't begin to feel relief from your aches and pains immediately and if you don't continue to improve, to feel healthier and stronger with each new day, just send your Q-Ray back to us for a full refund of your purchase price." PX 40 at 47:11-15. The combination of the testimonials describing complete pain relief achieved with the Q-Ray bracelet and the host's assertions of immediate pain relief adds to the clear message that the Q-Ray bracelet provides immediate, significant or complete pain relief.

The infomercial concludes with additional consumer testimonials from Bill Kleiman stating that "when you put [the Q-Ray bracelet] on and you realize the benefit of this bracelet, I don't think there's enough money in the world to talk about when it comes to relieving the pain in your body," and an unidentified male who states, "You just put it on, just try it. You've got nothing to lose but pain." PX 40 at 48:4-7, 49:9-10.*fn14 These testimonials give the viewer one last reinforcement of the message that the Q-Ray bracelet provides immediate, significant or complete relief from various types of pain.*fn15

Defendants QT, QRC, Bio-Ray, and Que Te Park admit that Exhibit 40, through the use of consumer testimonials, makes the claim that the Q-Ray bracelet reduces pain. PX 7 at No. 78; PX 8 at No. 95. Defendants' sprinkling of several inconspicuous disclaimers In small print for a couple of seconds stating, "Individual results may vary," does not alter the strong net impression conveyed by the prolific use of consumer testimonials and the sales pitch by the host. See PX 40.

2. Prime Time infomercial (PX 46 and PX 47)

The Prime Time infomercial conveys the message that the Q-Ray bracelet immediately relieves pain. Many of the testimonials above appeared in Defendants' previous versions of the infomercials, either word-for-word or in similar testimonials. See, e.g., nn. 2-14, supra. In some instances in those earlier infomercials, additional strong claims and testimonials about relief from severe pain were also presented. For example, a testimonial from Audra Wallza, a woman suffering from ovarian cancer and undergoing painful chemotherapy treatments, was prominently featured in the first infomercial for the Q-Ray bracelet. Her tearful testimonial also appears in previous versions of the Q-Ray infomercial and convey the claim of relief from severe pain. She states, "I'm suffering from ovarian cancer. I've had one ovary removed and I'm currently going through chemotherapy. I've had my fifth treatment and, I can deal with the nausea, but the worst thing is the pain in my legs, the soreness, it feels like needles going through my body. . . . there's just some mornings I just can't even get out of bed." PX 47 at 8:20 - 9:14 and 3:9-14.*fn16 Driving home the message of Q-Ray's purported efficacy in relieving severe pain, she further states, "I didn't think it was going to be this powerful and I -- it kind of just brought tears to my eyes because I'm just amazed and in disbelief. I'm just excited that, you know, my life is normal again." PX 47 at 25:19-23.

Setting the stage about the impact of pain, the statements "Over 100 million Americans suffer from pain every year," and "Over 93 million work days are missed each year due to pain" appear on screen while a man identified as a pharmacist, Steve Hospodavis, states, "Chronic pain, the impact that it would have on a person's life can be devastating. They can go from taking merely aspirin or Tylenol all the way up to morphines and codeines -- and a variety of stronger products." PX 47 at 3:15-4:7.

The host of this version of the infomercial, Mitch Laurence ("Laurence"), immediately follows the pharmacist and informs viewers, "If you or someone you know is one of over 100 million Americans that suffer with pain, this may be one of the most important programs you'll ever watch. . . What you're going to see and hear are people who have been trying to cope with that pain and how an amazing new non-medical device called the Q-Ray Ionized Bracelet has changed their lives." PX 47 at 4:10-22.

Throughout the infomercial, an off-screen announcer tells viewers, "If you or someone you know is one of over 100 million Americans who suffer from pain. . .you're not alone. . . . Now, an incredible non-medical device called the Q-Ray Ionized Bracelet is changing the lives of people all over the world. The Q-Ray Ionized Bracelet is a non-medical device designed to allow excess positive ions to leave our bodies, thereby helping the body return to its normal electrical balance naturally, resulting in decreased pain. . ." PX 47 at 9:18 -10:10.

A variety of testimonials are given throughout the program in order to convey the message that the Q-Ray bracelet produces immediate pain relief. For example, Kerin Holder-Krohn states, "I have been having chronic sinus pressure for about -- problems for the last three or four years, and really bad over the last year. Constant pain, constant pressure in my face. And back pain that I didn't mention. And so, it wasn't very long after I put this on that I felt an immediate change in the facial pressure, in the pain in my face. It's amazing." PX 47 at 26:21-27:3.

Que Te Park, identified onscreen as "Andrew Park, President/Founder, Q-Ray," also appears in the first version of the infomercial to praise the Q-Ray bracelet's purported efficacy and quick relief. He states, "It's natural forces, natural power, natural energy. At the same time, when your body is balanced naturally, your pain also removed at the same time, almost technically in a second because we are talking body electricity. . . the speed of electricity. Very quick." PX 47 at 26:7-18.

Defendants QT, QRC, Bio-Ray, and Que Te Park admit that Exhibit 47, through the use of consumer testimonials, makes the claim that the Q-Ray bracelet reduces pain. PX 7 at No. 66; PX 8 at No. 83. Moreover, Defendants did not attempt to disclaim the overall impression of these testimonials. This infomercial is devoid of any disclaimer such as, "Results not typical." See PX 46.

3. Onyx infomercial (PX 48 and PX 49)

The Onyx infomercial conveys the message that the Q-Ray bracelet provides immediate pain relief. In the Onyx version of the infomercial, a male announcer states, "The Q-Ray Ionized Bracelet is designed to restore the body to its normal electrical balance naturally, thereby reducing pain and increasing energy." PX 49 at 24:23-25:1.

The Onyx infomercial host states, "Over 3,000 years ago, people began to study the effects of electrical current within our body and develop treatments like acupuncture, tai chi, chi gong and others to help relieve pain and restore energy. These ancient insights have led to a greater understanding of how electricity works in the body and have inspired one very innovative product. The Q-Ray Ionized Bracelet is designed to restore the body to its normal electrical balance the natural way, thereby reducing pain and increasing energy." Stipulated.

The host introduces Dr. Jeremy Cole, who states that "approximately a year ago, a good friend of mine approached me and showed me his Q-Ray bracelet. He had some back pain. He put the bracelet on, the back pain went away immediately. So, I ordered a bracelet for myself. When the bracelet arrived, I put it on and within a few moments my back pain was quite better. In fact, it disappeared. . . . I used it selectively on some patients who had chronic bursitis, some tendinitis. There were some patients that I used it on who had some low back pain and arthritis, and I was absolutely amazed at the response." This discussion is accompanied by the onscreen, written statement, "Natural Pain Relief; www.Qray.com." Id. at 16:15-16.

The Onyx infomercial includes the following testimonial from LPGA Touring Professional Colleen Walker: "I suffered from tendinitis for one solid year in both my elbows. . . . A friend introduced the Q-Ray bracelet to me and said, try this, it will help you. . . . I have been without my pain for three years now." The Onyx infomercial host further states, "When you've tried everything to reduce your pain and nothing works, a new, all-natural alternative with literally thousands of success stories is a very exciting discovery." Stipulated.

Defendants QT, QRC, Bio-Ray, and Que Te Park admit that Exhibit 49, through the use of consumer testimonials, makes the claim that the Q-Ray bracelet reduces pain. PX 7 at No. 70; PX 8 at No. 87. Moreover, Defendants did not disclaim the overall impression of these testimonials. This infomercial is devoid of any disclaimer such as, "Results not typical." See PX 46.

4. Warren infomercial (PX 50 and PX 51)

The Warren infomercial communicates the message that the Q-Ray bracelet provides immediate pain relief. The infomercial emphasizes the great impact a Q-Ray bracelet can have on daily living. For instance, Linda Meredith states, "I have six [horses], and it's a very time-consuming passionate hobby. I woke up one morning and there was like this catch in my hip and . . . I'm limping -- I mean, just really limping, and it was to the point where I couldn't even pull myself into the saddle because it was my left hip and that's the foot that you put in the stirrup. . . I can't imagine not being able to ride them. . . I was just really, really getting depressed about it and I saw the Q-Ray commercial and so I thought, oh, what the heck, I'll send for the thing. I put it on, click, there I was on my feet." PX 51 at 8:15-9:4.

The infomercial host further stresses the pain relief benefits from wearing the Q-Ray bracelet stating "Linda is living life to its fullest, something she says she was unable to do before receiving her Q-Ray Ionized Bracelet. Imagine doing what you love for so many years and then having to quit due to pain and suffering. Don't let pain beat you. If you suffer from daily life pain, you need to try the Q-Ray Ionized Bracelet." PX 51 at 10:9-15.

The claim of fast-acting pain relief is reiterated throughout the infomercial. An off-screen announcer states, "Millions of people suffer daily life pain often preventing a full and meaningful life. . . Not anymore," while onscreen, the text, "Daily Life Pain? Q-Ray," appears. The announcer continues, "Introducing Q-Ray, the world's original ionized bracelet. People around the globe, young and old, have felt the immediate impact, including . . . reduction in their daily life pain." PX 51 at 12:12-25, 21:5-8, and 25:25 - 26:5. Later, the off-screen announcer states, "If you'd like to have your life back, free of daily life pain. . . then you need to do what millions of people around the globe do, try Q-Ray." PX 51 at 13:21-24, 21:15-18, and 26:14-17. The host states that "the Q-Ray Ionized Bracelet makes an instant impact, but has lasting results." PX 51 at 17:6-7. Leland Ferris, identified as having been in a car accident, states, "They told me I'd never -- most likely I'd never walk again. Though I started using a cane, it just hurt real bad. I didn't do much. . . I just was in so much pain all the time, it hurt to move. . . as soon as I got the bracelet on . . . I started feeling better and it just got better and better. It's given me a lot more sense of freedom, you know, when you go from staying in your house for almost 24 hours a day and not wanting to do anything and then going and wanting to get out and do everything, just to see what you could do without pain." PX 51 at 23:10-22.

Defendants QT, QRC, Bio-Ray, and Que Te Park admit that Exhibit 51, through the use of consumer testimonials, makes the claim that the Q-Ray bracelet reduces pain. PX 7 at No. 74 and PX 8 at No. 91. Moreover, Defendants did not disclaim the overall impression of these testimonials. This infomercial is devoid of any disclaimer such as, "Results not typical." See PX 46.

None of the four infomercials contain elements that contradict or eliminate this pain-relief claim. The onscreen statement, "Individual results may vary," shown in conjunction with some of the testimonials in the Complaint infomercial (PX 39 and PX 40) is inconspicuous and thus insufficient to negate the impression that consumers can achieve similar pain relief. Notably, none of the earlier infomercials even display this purported disclaimer. PX 46-51.

Each of the four versions of the infomercial for the Q-Ray bracelet that aired between 2000 and June 2003 conveys the clear message that the Q-Ray bracelet provides fast relief from significant, severe, and/or chronic pain from a variety of conditions. The infomercials reinforce this message by means of testimonials, statements by the announcer, onscreen messages and the failure to provide any meaningful disclaimers. These infomercials are designed to ...


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