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Case 2:17-cv-00467-JDL Document 1 Filed 11/30/17 Page 1 of 35 PageID #: 1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE
 

) 

FEDERAL TRADE COMMISSION and ) 

STATE OF MAINE, ) 

) Case No. 

Plaintiffs, ) 

) 

v. ) COMPLAINT FOR PERMANENT 

) INJUNCTION AND OTHER 

HEALTH RESEARCH LABORATORIES, LLC, ) EQUITABLE RELIEF 

a limited liability company, and ) 

) 

KRAMER DUHON, individually and as an owner ) 

and officer of HEALTH RESEARCH ) 

LABORATORIES, LLC, ) 

) 

Defendants. ) 

__________________________________________) 

Plaintiffs, the Federal Trade Commission (“FTC”) and the State of Maine, for their 

Complaint allege: 

1. The FTC brings this action under Section 13(b) of the Federal Trade Commission 

Act (“FTC Act”), 15 U.S.C. § 53(b), and the Telemarketing and Consumer Fraud and Abuse 

Prevention Act (“Telemarketing Act”), 15 U.S.C. §§ 6101-6108, and the Electronic Fund 

Transfer Act, (“EFTA”), 15 U.S.C. §§ 1693-1693r, to obtain permanent injunctive relief, 

rescission or reformation of contracts, restitution, the refund of monies paid, disgorgement of illgotten monies, and other equitable relief for Defendants’ acts or practices in violation of Sections 

5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52, the FTC’s Trade Regulation Rule 

entitled “Telemarketing Sales Rule” (“TSR”), 16 C.F.R. Part 310, and the EFTA and its 

implementing Regulation E, 12 C.F.R. § 1005.10 (“Reg. E”), in connection with the labeling, 
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advertising, marketing, distribution, and sale of products purported to cause weight loss, treat 

arthritis and relieve joint and back pain, and prevent or mitigate cognitive decline. 

2. The State of Maine brings this action pursuant to the Telemarketing Act, 15 

U.S.C. §§ 6101-6108, and the Maine Unfair Trade Practices Act, 5 M.R.S.A. §§ 205-A through 

214 (“Maine UTPA”), to permanently enjoin and restrain Defendants from engaging in certain 

unlawful unfair and deceptive acts or practices in the conduct of trade or commerce, and to 

obtain relief for Defendants’ acts or practices in violation of the TSR and the Maine UTPA in 

connection with the labeling, advertising, marketing, distribution, and sale of products purported 

to cause weight loss, provide joint pain relief, and prevent or mitigate cognitive decline, such 

relief to include rescission or reformation of contracts, the refund of monies paid, disgorgement, 

restitution, civil penalties, other relief as provided in the Maine UTPA, and other equitable relief. 

JURISDICTION AND VENUE 

3. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337(a), 

and 1345, and 15 U.S.C. §§ 45(a), 53(b), 1693o(c), 6102(c), and 6105(b). 

4. This Court has subject matter jurisdiction over the claims of the State of Maine 

pursuant to 15 U.S.C. § 6103(a) and supplemental jurisdiction over those claims pursuant to 28 

U.S.C. § 1367. 

5. Venue is proper in this district under 28 U.S.C. § 1391(b) and (c), and 15 U.S.C. 

§§ 53(b) and 6103(e). 

PLAINTIFFS 

6. The FTC is an independent agency of the United States Government created by 

statute. 15 U.S.C. §§ 41-58. The FTC enforces Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), 

which prohibits unfair or deceptive acts or practices in or affecting commerce. The FTC also 

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enforces Section 12 of the FTC Act, 15 U.S.C. § 52, which prohibits false advertisements for 

food, drugs, devices, services, or cosmetics in or affecting commerce; the TSR, which prohibits 

deceptive and abusive telemarketing acts or practices; and the EFTA, which regulates the rights, 

liabilities, and responsibilities of participants in electronic fund transfer systems. 

7. The FTC is authorized to initiate federal district court proceedings by its own 

attorneys to enjoin violations of the FTC Act, the TSR, and the EFTA, and to secure such 

equitable relief as may be appropriate in each case, including rescission or reformation of 

contracts, restitution, the refund of monies paid, and the disgorgement of ill-gotten monies. FTC 

Act, 15 U.S.C. § 53(b), TSR, 15 U.S.C. §§ 6102(c), 6105(b), and the EFTA, 15 U.S.C. 

§ 1693o(c). 

8. Plaintiff State of Maine is one of fifty sovereign states of the United States. Janet 

T. Mills is the duly elected and qualified Attorney General acting for Plaintiff State of Maine and 

is authorized to enforce the Maine UTPA pursuant to 5 M.R.S.A. §§ 191 and 209 and the powers 

vested in her by common law. 

9. Pursuant to the authority found in the Telemarketing Act at 15 U.S.C. § 6103(a), 

Plaintiff State of Maine is authorized to initiate federal district court proceedings to enjoin 

telemarketing activities that violate the TSR and, in each such case, to obtain damages, 

restitution and other compensation on behalf of Maine residents, or to obtain such further and 

other relief as the court may deem appropriate. 

DEFENDANTS 

10. Defendant Health Research Laboratories, LLC, (“HRL”), is a Nevada limited 

liability company. At all times material to this Complaint, HRL has identified its principal place 

of business to consumers and businesses as 165 Pleasant Avenue, South Portland, Maine 04106, 

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which is the location of Ship-Right Solutions, a fulfillment and customer service company for 

HRL. HRL’s inbound telemarketing company, NexRep, is also located in Portland, Maine. In 

addition, HRL has used the business address of 1000 E. William Street, Suite 204, Carson City, 

Nevada 89701 and an address in Quebec, Canada to promote its products to Canadian 

consumers. HRL transacts or has transacted business in this district and throughout the United 

States and Canada. At all times material to this Complaint, acting alone or in concert with 

others, HRL has advertised, marketed, distributed, offered for sale, or sold health-related 

products to consumers throughout the United States and Canada. 

11. Defendant Kramer Duhon (“Duhon”) is the President and sole owner of HRL. At 

all times material to this Complaint, acting alone or in concert with others, he has formulated, 

directed, controlled, had the authority to control, or participated in the acts and practices of HRL, 

including the acts and practices set forth in this Complaint. In connection with the matters 

alleged herein, he transacts or has transacted business in this district and throughout the United 

States and Canada. Duhon resides in Texas. 

COMMERCE 

12. At all times material to this Complaint, all of the Defendants have maintained a 

substantial course of trade in or affecting commerce, as “commerce” is defined in Section 4 of 

the FTC Act, 15 U.S.C. § 44, and as “trade and commerce” are defined in Section 206(3) of the 

Maine UTPA, 5 M.R.S.A. § 206(3). 

DEFENDANTS’ BUSINESS ACTIVITIES 

13. Defendants have advertised, labeled, offered for sale, sold, or distributed a variety 

of health-related products, including, but not limited to, BioTherapex Liver Enzyme 

Rejuvenation (“BioTherapex”) and NeuroPlus, from January 1, 2012 to the present. 

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14. BioTherapex consists of a combination of vitamins and minerals, as well as 

bromelain and creatine monohydrate, with a daily serving size of two capsules. Defendants have 

sold bottles of BioTherapex for $39.95 each, plus shipping and handling. Each bottle of 

BioTherapex contains a one-month supply of capsules. Defendants also have sold BioTherapex 

in “Ultra-Intensive,” “Super-Intensive,” and “Mega-Intensive” multi-pack bundles ranging in 

price from $79.95 to $119.95, plus shipping and handling. 

15. NeuroPlus contains a proprietary blend of ingredients including bacopa monniera 

extract, gotu kola powder, blessed thistle herb powder, and gamma aminobutyric acid (GABA), 

with a daily serving size of two liquid capsules. Defendants have sold bottles of NeuroPlus for 

$39.95 each, plus shipping and handling. Each bottle of NeuroPlus contains a one-month supply 

of capsules. Defendants also have sold NeuroPlus in “Silver Deal,” “Gold Deal,” and “Platinum 

Deal” multi-pack bundles ranging in price from $79.95 to $189.95, plus shipping and handling. 

16. Defendants have advertised BioTherapex, NeuroPlus, and other products 

primarily through direct mail brochures to consumers in the United States and Canada. 

Defendants have also advertised and offered their products for sale on their websites, including, 

but not limited to, www.hrlsupplements.com and www.biotherapex.com. 

17. To induce consumers to purchase BioTherapex, NeuroPlus, and other products, 

Defendants have disseminated or caused to be disseminated advertisements and promotional 

materials, including, but not limited to, the attached Exhibits A through D. These advertisements 

contain the following statements and depictions, among others: 

A. BioTherapex direct mail brochure (Exhibit A): 

Rheumatism, Arthritis and Osteoarthritis
 

Excessive accumulation of toxins attacks your joints and invades your muscles. 

This process is responsible for pain. BIOTHERAPEX LIVER REJUVENATION 

detoxifies your body and stops joint pain and trouble. 

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* * * 

If you have one of these ailments, then you must absolutely USE the 

BIOTHERAPEX LIVER REJUVENATION free of charge for 30 days and Help 

Alleviate . . . 

□ Arthritis 

□ Muscle pain 

□ Joint pain . . . 

□ Rheumatism . . . 

* * * 

* * * 

ARTHRITIS/BACK AND JOINT PAIN
 

“My knees and Lower Back had been torturing me for years”.
 

Bending or climbing stairs was a living nightmare . . . There was nothing I could 

do but take painkillers that gave me stomach and acid problems. Since taking 

BIOTHERAPEX LIVER REJUVENATION, my pain has completely gone away. 

I would never have believed that the cause of pain came from my liver. – Jack R. 

(61) 

* * * 

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* * * 

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* * * 

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B. NeuroPlus direct mail brochure (Exhibit B) 

PERIODICAL OF NEW MEMORY FRONTIERS Special Issue 

ADVANCED MEMORY DISCOVERIES Vol 1 Issue 3 

Incredible Memory Boosting / Restoring Secrets Found 

in Himalayas, Mediterranean and Australia 

Now Combined into One Capsule! 

REVERSE MEMORY LOSS 

Men & Women, Even into their 80s and 90s [sic] Report it protects your brain 

 against Alzheimer’s[,] boosts your mood, and sharpens your concentration . . . 

 Medical Discovery #1: 

This Powerful Phytonutrient 

Protects Brain Against 

The Ravages of Alzheimer’s 

& Dementia . . . 

 Medical Discovery #2: 

New Advancement Boosts 

Memory, Attention & 

Rebuilds Brain Power in
 

People Over Fifty . . . 

 Medical Discovery #3: 

New Weaponry in 

War Against Depression, 

Alzheimer’s & Dementia . . . 

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 Medical Discovery #4: 

Nourish You [sic] Brain with 

These Pharmaceutical Grade Ingredients & Have 

 Supercharged Memory & 

Concentration . . . 

* * * 

* * * 

“The research on Gotu kola and water Hyssop is so amazing we knew we had to make it 

available to the public. So we gathered up the team of chemists at HRL and created NeuroPlus 

the leading nutritional supplement for memory, focus and brain longevity.” 

* * * 

“No More Embarrassing Moments With The Family . . .” 

I have a large family. A few years ago, I couldn’t even remember my kids’ names, not to 

mention my grandkids! Then I started taking NeuroPlus. Thank you NeuroPlus!” – P.B., 

Seattle. 

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* * * 

“No more strings around my fingers...no more index cards around the house...” I am an 

old-fashioned person. I used string or ugly index cards to help my memory. Now I use 

NeuroPlus to keep my memory – and my mind – as sharp as a tack!” D.B.C., Texas 

 * * * 

1 Family: 3 Generations; And We All Take NeuroPlus! “I started taking NeuroPlus when I 

noticed I was having more ‘senior moments’ than normal. At 76 my memory has never been 

better. Then my son told me that his Doc wanted to put Sam, my grandchild, on an Rx drug for 

better focus and attention at school. I suggested he use something more natural before resorting 

to prescription drugs. I am glad I did. He’s been taking NeuroPlus and said he has noticed a 

difference in the level of attention he can give to class – and his grades prove it! Now my son, 

my grandson and me – that is 3 generations – take NeuroPlus daily! Thanks! –K.T.W., Nevada

 *** 

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C. BioStem direct mail brochure (Exhibit C) 

* * * 

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D. Betarol direct mail brochure (Exhibit D) 

18. Defendants’ advertisements, including Exhibits A through D, contain consumer 

testimonials and expert endorsements that are fictitious. 

DEFENDANTS’ MARKETING PRACTICES 

19. Consumers can purchase Defendants’ products either by mailing in their order to 

Defendant HRL’s South Portland, Maine address, calling the toll-free numbers printed on 

product brochures, or accessing Defendants’ product websites. 

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20. Direct mail brochures for BioTherapex have offered consumers a “free 60-day 

trial” or a “free 30-day trial.” Defendants encourage consumers to take the free trial “just out of 

curiosity since it’s risk-free; don’t pay a single penny if you’re not thrilled with the results!” 

21. Direct mail brochures for NeuroPlus have offered consumers a “60 day no risk 

free trial,” claiming “The Only Thing You Will Lose Will Be Your ‘Senior’s [sic] Moments.’ 

There are no strings to this 60-day FREE TRIAL OFFER. We send NeuroPlus right to your 

door, so you can feel it work in as little as 60 days.” (Ex. B, pages 8-9). 

22. When consumers call to order the free trial, they are first asked for their contact 

information and their charge card number prior to any discussion about purchasing products. 

Defendants then attempt to switch consumers to a one-year supply, which they represent as their 

most popular option. Defendants typically assure consumers they will have sixty days to try the 

products they are purchasing and that they will receive their money back if they are not satisfied. 

23. In many instances, Defendants fail to disclose, or fail to disclose adequately, to 

consumers that the free trial begins on the date their orders are placed, shortening the trial period. 

In addition, product shipments often take 10-14 business days to arrive, further shortening the 

trial period. As a result, consumers frequently discover that their trial period ended earlier than 

promised. 

24. In many cases, when consumers call to order Defendants’ products, Defendants 

enroll them in an auto-renewal program without disclosing, or adequately disclosing, that they 

are doing so. In other cases, Defendants offer consumers an auto-renewal program with the 

promise of free shipping and the opportunity to customize or discontinue the plan anytime. In 

some cases Defendants enroll consumers in auto-renewal programs after consumers specifically 

request not to be included in the program. Defendants do not tell consumers that these auto15 
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renewal shipments, which begin before the trial period ends, are non-refundable. As a result of 

this, consumers are frequently charged for auto-renewal shipments they do not want. 

25. Defendants typically instruct their customer service agents to refuse customer 

refunds requested more than sixty days after order dates and to deny requests for refunds on 

auto-renewal shipments. Even if consumers call to request refunds within the required time, they 

discover a number of previously undisclosed conditions for receiving refunds, such as not being 

refunded the cost of the initial shipping and handling, that they must call to obtain a return 

merchandise authorization number, that they must bear the cost of returning and tracking all 

opened and unopened merchandise, and that the merchandise must be received by Defendants 

before the end of the trial period. In some cases, consumers who follow all of Defendants’ 

conditions for receiving refunds still do not receive refunds. 

26. Defendants also mail product brochures to Canadian consumers from a Quebec 

address, 7107 Rte. Transcanadienne, #414, St. Laurent, QC H4T 1A2. The brochures display 

this Canadian address, but do not disclose that product prices are in U.S. dollars rather than 

Canadian dollars, or that products are shipped from the United States. When Canadian 

consumers call to purchase products, identifying their Canadian addresses to Defendants prior to 

placing their orders, Defendants do not tell these consumers that Defendants are quoting prices in 

U.S. dollars, not Canadian dollars, and will bill consumers’ charge cards in U.S. dollars. 

Defendants similarly do not warn Canadian consumers that products will be shipped from the 

United States, such that consumers must pay substantial customs duties and import taxes at the 

time of delivery. 

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Defendants’ Offers on Behalf of Third Parties 

27. Once consumers accept Defendants’ primary offer (e.g., BioTherapex or 

NeuroPlus), Defendants’ inbound sales representatives offer consumers “upsells” in the form of 

additional goods and services sold by third parties (“external upsells”). Defendants receive 

commissions when consumers accept free or low-cost trial offers for these additional goods and 

services, which are typically auto-renewal savings club memberships. Defendants promise 

incentives such as rebates, gift cards, and gas vouchers if callers will participate in their buying 

clubs on a trial basis. In numerous instances, Defendants have failed to disclose all material 

terms and conditions for these upsells, including the identity of the third parties providing the 

products or services and clear instructions on how to cancel these offers. 

Failure to Obtain Authenticated Authorization Under Regulation E 

in Advance of Charging Debit Cards 

28. Defendants obtain debit card numbers from many consumers with the intention of 

charging them for auto-renewal plans but fail to obtain consumers’ written or other similarly 

authenticated authorization in advance that describes the terms of the preauthorized transfer in a 

clear and understandable form. 

VIOLATIONS OF THE FTC ACT 

29. Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), prohibits “unfair or deceptive acts 

or practices in or affecting commerce.” 

30. Misrepresentations or deceptive omissions of material fact constitute deceptive 

acts or practices prohibited by Section 5(a) of the FTC Act. 

31. Acts or practices are unfair under Section 5 of the FTC Act if they cause or are 

likely to cause substantial injury to consumers that consumers themselves cannot reasonably 

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avoid and that is not outweighed by countervailing benefits to consumers or competition. 15 

U.S.C. § 45(n). 

32. For purposes of Section 5(a) of the FTC Act, the term “unfair or deceptive acts or 

practices” includes acts or practices involving foreign commerce that involve material conduct 

occurring within the United States. All remedies available to the Commission with respect to 

unfair and deceptive acts or practices shall be available, including restitution to domestic or 

foreign victims. 15 U.S.C. § 45(a)(4). 

33. Section 12 of the FTC Act, 15 U.S.C. § 52, prohibits the dissemination of any 

false advertisement in or affecting commerce for the purpose of inducing, or which is likely to 

induce, the purchase of food, drugs, devices, services, or cosmetics. For the purposes of Section 

12 of the FTC Act, 15 U.S.C. § 52, BioTherapex and NeuroPlus are “drugs,” as defined in 

Section 15(c) of the FTC Act, 15 U.S.C. § 55(c). The term “false advertisement” means an 

advertisement, other than labeling, which is misleading in a material respect. 15 U.S.C. 

§ 55(a)(1). 

COUNT I 

Defendants’ False or Unsubstantiated Claims About BioTherapex 

34. Through the means described in Paragraph 17, including, but not limited to, the 

statements and representations contained in the advertisement attached as Exhibit A, Defendants 

have represented, directly or indirectly, expressly or by implication, that: 

a. BioTherapex treats or cures rheumatism, arthritis, and osteoarthritis; 

b. BioTherapex relieves joint pain, back pain, and muscle pain; 

c. BioTherapex relieves back pain and pain associated with rheumatism and 

arthritis in four weeks; and 

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d.	 BioTherapex causes weight loss without dieting or exercising, including as 

much as twenty-eight pounds in two weeks and eight to thirteen pounds 

per week. 

35. The representations set forth in Paragraph 34 are false or misleading, or were not 

substantiated at the time the representations were made. Therefore, the making of the 

representations set forth in Paragraph 34 constitutes a deceptive act or practice and the making of 

false advertisements, in or affecting commerce, in violation of Sections 5(a) and 12 of the FTC 

Act, 15 U.S.C. §§ 45(a) and 52. 

COUNT II
 

Defendants’ False or Unsubstantiated Claims About NeuroPlus 

36. Through the means described in Paragraph 17, including, but not limited to, the 

statements and depictions contained in the advertisement attached as Exhibit B, Defendants have 

represented, directly or indirectly, expressly or by implication, that: 

a.	 NeuroPlus protects the brain against Alzheimer’s disease and dementia; 

b.	 Neuroplus reverses memory loss; and 

c.	 NeuroPlus improves memory, concentration, and cognitive performance. 

37. The representations set forth in Paragraph 36 are false or misleading, or were not 

substantiated at the time the representations were made. Therefore, the making of the 

representations set forth in Paragraphs 36 of this Complaint constitutes a deceptive act or 

practice and the making of false advertisements, in or affecting commerce, in violation of 

Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52. 

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COUNT III
 

Defendants’ False Claims that NeuroPlus Is Scientifically Proven 

38. Through the means described in Paragraph 17, including, but not limited to, the 

statements and depictions contained in the advertisement attached as Exhibit B, Defendants have 

represented, directly or indirectly, expressly or by implication, that NeuroPlus is scientifically 

proven to: 

a. Protect the brain against Alzheimer’s disease and dementia; 

b. Reverse memory loss; and 

c. Improve memory, concentration, and cognitive performance. 

39. The representations set forth in Paragraph 38 are false or misleading. Therefore, 

the making of the representations set forth in Paragraph 38 of this Complaint constitutes a 

deceptive act or practice and the making of false advertisements, in or affecting commerce, in 

violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 52. 

COUNT IV 

False Proof Claim About BioTherapex 

40. Through the means described in Paragraph 17, Defendants have represented, 

directly or indirectly, expressly or by implication, that the 1200-person clinical study presented 

in Exhibit A proves BioTherapex eliminates or reduces the symptoms associated with 

hypertension, chronic fatigue syndrome, joint and muscle pain, diabetes, depression, obesity, and 

IBS. 

41. The representation set forth in Paragraph 40 is false or misleading because no 

study has been conducted on BioTherapex. Therefore, the making of the representation set forth 

in Paragraph 40 of this Complaint constitutes a deceptive act or practice and the making of false 

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advertisements, in or affecting commerce, in violation of Sections 5(a) and 12 of the FTC Act, 

15 U.S.C. §§ 45(a) and 52. 

COUNT V 

False Advertising Claims Through Consumer and Expert Endorsers 

42. Through the means described in Paragraph 17, Defendants have represented, 

directly or indirectly, expressly or by implication, that the product users depicted in their 

advertising were actual persons who had successfully used Defendants’ products. 

43. Through the means described in Paragraph 17, Defendants have represented, 

directly or indirectly, expressly or by implication, that the experts depicted in their advertising 

were actual medical professionals who recommended using Defendants’ products. 

44. The representations set forth in Paragraphs 42 and 43 are false or misleading 

because the purported product users and experts depicted in Defendants’ advertising were 

fictitious. Therefore, the making of the representations set forth in Paragraphs 42 and 43 of this 

Complaint constitutes a deceptive act or practice and the making of false advertisements, in or 

affecting commerce, in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. §§ 45(a) and 

52. 

COUNT VI 

False Risk-Free Trial Offer 

45. Through the means described in Paragraphs 20 through 25, Defendants have 

represented to consumers, directly or indirectly, expressly or by implication, that they could try 

Defendants’ products, including, but not limited to, BioTherapex and NeuroPlus, risk-free 

without incurring any financial obligation. 

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46. The representation in Paragraph 45 is false or misleading because Defendants 

required consumers to pay: the cost of the initial shipment, which was not refundable; the cost of 

returning both full and empty bottles of the product; the full cost of Defendants’ products, 

including, but not limited to, BioTherapex and NeuroPlus, if consumers did not follow the 

undisclosed or inadequately disclosed return and refund policies described in Paragraph 25; and 

additional charges for inadequately disclosed auto-renewal shipments of Defendants’ products, 

including, but not limited to, BioTherapex and NeuroPlus. 

47. Therefore, the making of the representation set forth in Paragraph 45 constitutes a 

deceptive act or practice, in or affecting commerce, in violation of Section 5(a) of the FTC Act, 

15 U.S.C. § 45(a). 

COUNT VII 

Misrepresentation About the Length of the Trial Offer 

48. Through the means described in Paragraphs 20 through 25, Defendants have 

represented to consumers, directly or indirectly, expressly or by implication, that they could try 

Defendants’ products, including, but not limited to, BioTherapex and NeuroPlus, free for 30 or 

60 days. 

49. The representation in Paragraph 48 is false or misleading. Consumers could not 

try Defendants’ products, including, but not limited to, BioTherapex or NeuroPlus, free for 30 or 

60 days because Defendants calculate the trial period beginning on the date consumers place 

their orders, which, as described in Paragraph 23, is generally 10 to 14 days before consumers 

receive their products. In addition, Defendants require consumers to ensure that Defendants 

receive any returned merchandise before the end of the 30- or 60-day trial period. Therefore, 

consumers have far less time than the promised 30 to 60 days to try the products. 

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50. Therefore, the making of the representation set forth in Paragraph 48 constitutes a 

deceptive act or practice, in or affecting commerce, in violation of Section 5(a) of the FTC Act, 

15 U.S.C. § 45(a). 

COUNT VIII 

Misrepresentation of the Price for Goods Sold 

51. In numerous instances, Defendants have represented to Canadian consumers, 

directly or indirectly, expressly or by implication, that the price for goods sold was the total cost 

delivered. 

52. The representation set forth in Paragraph 51 is false or misleading. The price for 

goods sold was not the total cost delivered. Rather, Defendants’ Canadian consumers are 

required by law to pay substantial customs duties, and the price for goods was advertised only in 

U.S. dollars, rather than in Canadian dollars. 

53. Therefore, the representation set forth in Paragraph 51 constitutes a deceptive act 

or practice, in or affecting commerce, in violation of Section 5(a) of the FTC Act, 15 U.S.C. 

§ 45(a). 

COUNT IX
 

Unfairly Charging Consumers Without Authorization 

54. In numerous instances, Defendants have caused charges to be submitted for 

payment to the credit and debit cards of consumers without the express informed consent of 

those consumers. 

55. Defendants’ acts or practices set forth in Paragraph 54 cause or are likely to cause 

substantial injury to consumers that those consumers cannot reasonably avoid themselves and 

that injury is not outweighed by countervailing benefits to consumers or competition. 

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56. Therefore, Defendants’ acts or practices set forth in Paragraph 54 constitute unfair 

acts or practices, in or affecting commerce, in violation of Section 5 of the FTC Act, 15 U.S.C. 

§§ 45(a) and 45(n). 

THE TELEMARKETING SALES RULE 

57. Congress directed the FTC to prescribe rules prohibiting abusive and deceptive 

telemarketing acts or practices pursuant to the Telemarketing Act, 15 U.S.C. §§ 6101-6108. The 

FTC adopted the original Telemarketing Sales Rule (“TSR”) in 1995, extensively amended it in 

2003, and amended certain provisions thereafter. 16 C.F.R. Part 310. 

58. Defendants are “sellers” and/or “telemarketers” engaged in “telemarketing,” as 

those terms are defined in the TSR, 16 C.F.R. § 310.2(dd), (ff), and (gg). The TSR generally 

exempts “[t]elephone calls initiated by a customer . . . in response to a direct mail solicitation,” 

16 C.F.R. § 310.6(b)(6). However, this exemption does not apply to “any instances of upselling” 

during those telephone calls. § 310.6(b)(6). 

59. “Upselling” is defined by the TSR as “soliciting of the purchase of goods or 

services following an initial transaction during a single telephone call. The upsell is a separate 

telemarketing transaction, not a continuation of the initial transaction.” 16 C.F.R. § 310.2(ee). 

60. The TSR prohibits sellers and telemarketers from failing to disclose truthfully, in 

a clear and conspicuous manner, before a customer consents to pay for goods or services offered, 

the following material information: (a) the total costs to purchase, receive, or use, and the 

quantity of, any goods or services that are the subject of the sales offer; and (b) if the seller or 

telemarketer makes a representation about a refund, cancellation, exchange, or repurchase policy, 

a statement of all material terms and conditions of such policy. 16 C.F.R. § 310.3(a)(1)(i), (iii). 

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61. Additionally, the TSR requires sellers or telemarketers in an internal or external 

upsell to disclose truthfully, promptly, and in a clear and conspicuous manner the following 

information: 

a. The identity of the seller; 

b. That the purpose of the call is to sell goods or services; and 

c. The nature of the goods or services. 

16 C.F.R. § 310.4(d)(1), (2), and (3). 

62. The TSR prohibits sellers and telemarketers from “[c]ausing billing information 

to be submitted for payment, directly or indirectly, without the express informed consent of the 

customer . . . .” 16 C.F.R. § 310.4(a)(7). 

63. Pursuant to Section 3(c) of the Telemarketing Act, 15 U.S.C. § 6102(c), and 

Section 18(d)(3) of the FTC Act, 15 U.S.C. § 57a(d)(3), a violation of the TSR constitutes an 

unfair or deceptive act or practice in or affecting commerce, in violation of Section 5(a) of the 

FTC Act, 15 U.S.C. § 45(a). 

VIOLATIONS OF THE TELEMARKETING SALES RULE 

COUNT X 

Failure to Disclose Material Terms and Conditions of Refund and Cancellation Policy 

Both Plaintiffs
 

64. In numerous instances, in connection with Defendants’ efforts to add external 

upsells of discount buying clubs described in Paragraph 27, and before a customer consents to 

pay for goods or services, Defendants represent they will honor requests for refunds and 

cancellations but fail to disclose truthfully, and in a clear and conspicuous manner, a statement of 

all material terms and conditions of such refund or cancellation policy. 

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65. Defendants’ acts or practices, as described in Paragraph 64, are deceptive 

telemarketing acts or practices that violate the TSR, 16 C.F.R. § 310.3(a)(1)(iii). 

COUNT XI 

Failure to Make Required Oral Disclosures
 

Both Plaintiffs
 

66. In numerous instances, in connection with Defendants’ efforts to externally upsell 

discount buying clubs, as described in Paragraph 27, they fail to disclose promptly and in a clear 

and conspicuous manner to consumers the identity of the third-party seller. 

67. Defendants’ acts or practices, as described in Paragraph 66, are abusive 

telemarketing acts or practices that violate the TSR, 16 C.F.R. § 310.4(d)(1). 

VIOLATIONS OF EFTA AND REGULATION E 

68. Section 907(a) of the Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. 

§ 1693e(a), provides that a “preauthorized electronic fund transfer from a consumer’s account 

may be authorized by the consumer only in writing, and a copy of such authorization shall be 

provided to the consumer when made.” Section 903(10) of EFTA, 15 U.S.C. § 1693a(10), 

provides that the term “preauthorized electronic fund transfer” means “an electronic fund transfer 

authorized in advance to recur at substantially regular intervals.” 

69. Section 1005.10(b) of Regulation E, 12 C.F.R. § 1005.10(b), provides that 

“[p]reauthorized electronic fund transfers from a consumer’s account may be authorized only by 

a writing signed or similarly authenticated by the consumer. The person that obtains the 

authorization shall provide a copy to the consumer.” 

70. Section 1005.10(b) of the Consumer Financial Protection Bureau’s Official Staff 

Commentary to Regulation E, 12 C.F.R. § 1005.10(b), Supp. I, provides that “[t]he authorization 

process should evidence the consumer’s identity and assent to the authorization.” Id. ¶ 10(b), 

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cmt. 5. The Official Staff Commentary further provides that “[a]n authorization is valid if it is 

readily identifiable as such and the terms of the preauthorized transfer are clear and readily 

understandable.” Id. ¶ 10(b), cmt. 6. 

71. Pursuant to Section 917(c) of EFTA, 15 U.S.C. § 1693o(c), every violation of 

EFTA and Regulation E constitutes a violation of the FTC Act, 15 U.S.C. §§ 41 et seq. 

COUNT XII 

EFTA and Regulation E 

72. In numerous instances, Defendants debit consumers’ bank accounts on a recurring 

basis without obtaining a written authorization signed or similarly authenticated from consumers 

for preauthorized electronic fund transfers from their accounts, thereby violating Section 907(a) 

of EFTA, 15 U.S.C. § 1693e(a), and Section 1005.10(b) of Regulation E, 12 C.F.R. § 

1005.10(b). 

73. In numerous instances, Defendants debit consumers’ bank accounts on a recurring 

basis without providing to the consumer a copy of a written authorization signed or similarly 

authenticated by the consumer for preauthorized electronic fund transfers from the consumer’s 

account, thereby violating Section 907(a) of EFTA, 15 U.S.C. § 1693e(a), and Section 

1005.10(b) of Regulation E, 12 C.F.R. § 1005.10(b). 

74. By engaging in violations of EFTA and Regulation E set forth in Paragraphs 72 

and 73, Defendants have engaged in violations of 15 U.S.C. § 1693o(c) and the FTC Act, 15 

U.S.C. §§ 41 et seq. 

VIOLATIONS OF MAINE LAW 

75. The Maine UTPA, § 207, declares unlawful “unfair methods of competition and 

unfair or deceptive acts or practices in the conduct of any trade or commerce.” 

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76. Misrepresentations or deceptive omissions of material fact constitute deceptive 

acts or practices prohibited by Section 207 of the Maine UTPA. 

77. Acts or practices are unfair under Section 207 of the UTPA if they cause or are 

likely to cause substantial injury to consumers that consumers themselves cannot reasonably 

avoid and that is not outweighed by countervailing benefits to consumers or competition. 

78. Section 206 of the Maine UTPA defines “trade” or “commerce” as including “the 

advertising, offering for sale, sale or distribution of any services and any property, tangible or 

intangible, real, personal or mixed, and any other article, commodity or thing of value wherever 

situate, and shall include any trade or commerce directly or indirectly affecting the people of this 

State.” 5 M.R.S.A. § 206. 

79. Chapter 205-A, “Required Disclosures to Consumers,” of Title 10 of Maine’s 

statutes prohibits certain practices related to free trial offers. 10 M.R.S.A. §§ 1210 through 

1210-B. 

80. Section 1210(2) prohibits making free offers unless, at the time of the offer, “the 

seller provides the consumer with clear and conspicuous information regarding the terms of the 

free offer, including any additional financial obligations that may be incurred as a result of 

accepting the free offer.” 10 M.R.S.A. § 1210. 

81. Section 1210-A provides that a violation of Title 10, Chapter 205-A is a violation 

of the Maine UTPA. 

COUNT XIII 

Defendants’ False or Unsubstantiated Claims About BioTherapex 

82. Plaintiff State of Maine incorporates herein by reference all of the allegations 

contained in Paragraph 34 of this Complaint. 

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83. The representations set forth in Paragraph 34 are false or misleading, or were not 

substantiated at the time the representations were made. Therefore, the making of the 

representations set forth in Paragraph 34 constitutes a deceptive act or practice in the conduct of 

trade or commerce, in violation of 5 M.R.S.A. § 207. 

84. Defendants’ conduct, as described herein, has been intentional. 

COUNT XIV 

Defendants’ False or Unsubstantiated Claims About NeuroPlus 

85. Plaintiff State of Maine incorporates herein by reference all of the allegations 

contained in Paragraph 36 of this Complaint. 

86. The representations set forth in Paragraph 36 are false or misleading, or were not 

substantiated at the time the representations were made. Therefore, the making of the 

representations set forth in Paragraph 36 constitutes a deceptive act or practice in the conduct of 

trade or commerce, in violation of 5 M.R.S.A. § 207. 

87. Defendants’ conduct, as described herein, has been intentional. 

COUNT XV 

Defendants’ False Claims that NeuroPlus Is Scientifically Proven 

88. Plaintiff State of Maine incorporates herein by reference all of the allegations 

contained in Paragraph 38 of this Complaint. 

89. The representations set forth in Paragraph 38 are false or misleading. Therefore, 

the making of the representations set forth in Paragraph 38 constitutes a deceptive act or practice 

in the conduct of trade or commerce, in violation of 5 M.R.S.A. § 207. 

90. Defendants’ conduct, as described herein, has been intentional. 

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COUNT XVI 

False Proof Claim About BioTherapex 

91. Plaintiff State of Maine incorporates herein by reference all of the allegations 

contained in Paragraph 40 of this Complaint. 

92. The representation set forth in Paragraph 40 is false or misleading because no 

study has been conducted on BioTherapex. Therefore, the making of the representation set forth 

in Paragraph 40 constitutes a deceptive act or practice in the conduct of trade or commerce, in 

violation of 5 M.R.S.A. § 207. 

93. Defendants’ conduct, as described herein, has been intentional. 

COUNT XVII 

False Advertising Claims Through Consumer and Expert Endorsers 

94. Plaintiff State of Maine incorporates herein by reference all of the allegations 

contained in Paragraphs 42 and 43 of this Complaint. 

95. The representations set forth in Paragraphs 42 and 43 are false or misleading 

because the purported product users and experts depicted in Defendants’ advertising were 

fictitious. Therefore, the making of the representations set forth in Paragraphs 42 and 43 of this 

Complaint constitutes a deceptive act or practice in the conduct of trade or commerce, in 

violation of 5 M.R.S.A. § 207. 

96. The conduct of the Defendants, as described herein, has been intentional. 

COUNT XVIII 

False Risk-Free Trial Offer
 

97. Plaintiff State of Maine incorporates herein by reference all of the allegations 

contained in Paragraph 45 of this Complaint. 

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98. The representation set forth in Paragraph 45 is false or misleading because 

Defendants required consumers to pay: the cost of the initial shipment, which was not 

refundable; the cost of returning both full and empty bottles of the product; the full cost of 

products, including, but not limited to, BioTherapex and NeuroPlus, if consumers did not follow 

the undisclosed or inadequately disclosed return and refund policies described in Paragraph 25; 

and additional charges for inadequately disclosed auto-renewal shipments of the products, 

including, but not limited to, BioTherapex and NeuroPlus. Therefore, the making of the 

representation set forth in Paragraph 45 of this Complaint constitutes a deceptive act or practice 

in the conduct of trade or commerce, in violation of 5 M.R.S.A. § 207 and 10 M.R.S.A. § 1210. 

99. The conduct of the Defendants, as described herein, has been intentional. 

COUNT XIX 

Misrepresentation About the Length of the Trial Offer 

100. Plaintiff State of Maine incorporates herein by reference all of the allegations 

contained in Paragraph 48 of this Complaint. 

101. The representation set forth in Paragraph 48 is false or misleading. Consumers 

could not try Defendants’ products, including, but not limited to, BioTherapex or NeuroPlus, free 

for 30 or 60 days because Defendants calculate the trial period beginning on the date consumers 

place their orders, which, as described in Paragraph 23, is generally 10 to 14 days before 

consumers receive their products. In addition, Defendants require consumers to ensure that 

Defendants receive any returned merchandise before the end of the 30- or 60-day trial period. 

Thus, consumers have far less time than the promised 30 to 60 days to try the products. 

Therefore, the making of the representation set forth in Paragraph 48 constitutes a deceptive act 

or practice in the conduct of trade or commerce, in violation of 5 M.R.S.A. § 207 and 10 

M.R.S.A. § 1210. 

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102. The conduct of Defendants, as described herein, has been intentional. 

COUNT XX 

Misrepresentation of the Price for Goods Sold 

103. Plaintiff State of Maine incorporates herein by reference all of the allegations 

contained in Paragraph 51 of this Complaint. 

104. The representation set forth in Paragraph 51 is false or misleading. The price for 

goods sold was not the total cost delivered. Rather, Defendants’ Canadian consumers are 

required by law to pay substantial customs duties, and the price for goods was advertised only in 

U.S. dollars, rather than in Canadian dollars. Therefore, the making of the representation set 

forth in Paragraph 51 constitutes a deceptive act or practice in the conduct of trade or commerce, 

in violation of 5 M.R.S.A. § 207 and 10 M.R.S.A. § 1210. 

105. The conduct of Defendants, as described herein, has been intentional. 

COUNT XXI 

Unfairly Charging Consumers Without Authorization 

106. Plaintiff State of Maine incorporates herein by reference all of the allegations 

contained in Paragraphs 54 and 55 of this Complaint. 

107. Therefore, Defendants’ acts or practices set forth in Paragraph 54 constitute unfair 

acts or practices in the conduct of trade or commerce by charging the debit and credit cards of 

consumers without the consumers’ express informed consent, in violation of 5 M.R.S.A. § 207 

and 10 M.R.S.A. § 1210. 

108. The conduct of Defendants, as described herein, has been intentional. 

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CONSUMER INJURY 

109. Consumers have suffered and will continue to suffer substantial injury as a result 

of Defendants’ violations of the FTC Act, the TSR, the EFTA, the Maine UTPA, and 10 

M.R.S.A. § 1210. In addition, Defendants have been unjustly enriched as a result of their 

unlawful acts or practices. Absent injunctive relief by this Court, Defendants are likely to 

continue to injure consumers, reap unjust enrichment, and harm the public interest. 

THE COURT’S POWER TO GRANT RELIEF 

110. Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), empowers this Court to grant 

injunctive and such other relief as the Court may deem appropriate to halt and redress violations 

of any provision of law enforced by the FTC, including the Telemarketing Act, the TSR, the 

EFTA, and Reg. E. The Court, in the exercise of its equitable jurisdiction, may award ancillary 

relief, including rescission or reformation of contracts, restitution, the refund of monies paid, and 

the disgorgement of ill-gotten monies, to prevent and remedy any violation of any provision of 

law enforced by the FTC. 

111. Section 4(a) of the Telemarketing Act, 15 U.S.C. § 6103(a), empowers this Court 

to grant injunctive and such other relief as the Court may deem appropriate to halt violations of 

the TSR and to redress injury to consumers, including the award of damages, restitution, or other 

compensation in an action brought by a state. 

112. Pursuant to 28 U.S.C. § 1367, this Court has supplemental jurisdiction to allow 

Plaintiff State of Maine to enforce its state law claims under the Maine Unfair Trade Practices 

Act, 5 M.R.S.A. §§ 205-a through 214, against Defendants in this Court. Section 209 of the 

Maine UTPA empowers this Court to grant injunctive and such other relief, including civil 

penalties for intentional violations, as the Court may deem appropriate to halt and redress 

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violations of any provision of the UTPA enforced by the Maine Attorney General. The Court, in 

the exercise of its equitable jurisdiction, may award ancillary relief, including rescission or 

reformation of contracts, restitution, the refund of monies paid, and the disgorgement of illgotten monies, to prevent and remedy any violation of the UTPA enforced by the Maine 

Attorney General. 

FTC PRAYER FOR RELIEF 

Wherefore, Plaintiff Federal Trade Commission, pursuant to Section 13(b) of the FTC 

Act, 15 U.S.C. § 53(b), Section 6(b) of the Telemarketing Act, 15 U.S.C. § 6105(b), Section 

917(c) of the EFTA, 15 U.S.C. §1693o(c), and the Court’s own equitable powers, requests that 

the Court: 

A.	 Enter a permanent injunction to prevent future violations of the FTC Act, the 

TSR, and the EFTA and its implementing Reg. E by Defendants; 

B.	 Award such relief as the Court finds necessary to redress injury to consumers 

resulting from Defendants’ violations of the FTC Act and the TSR, including, but 

not limited to, rescission or reformation of contracts, restitution, the refund of 

monies paid, and the disgorgement of ill-gotten monies; and 

C.	 Award Plaintiff FTC the costs of bringing this action, as well as such other and 

additional relief as the Court may determine to be just and proper. 

MAINE PRAYER FOR RELIEF 

Wherefore, Plaintiff State of Maine, pursuant to Section 4(a) of the Telemarketing Act, 

15 U.S.C. § 6103(a), Section 209 of the Maine UTPA, 5 M.R.S.A. § 209, and the Court’s own 

equitable powers, requests that the Court: 

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A.	 Enter an order declaring Defendants’ above-described conduct to be in violation 

of the TSR and the Maine UTPA, § 207, and to be intentional violations pursuant 

to the Maine UTPA, § 209; 

B.	 Enter a permanent injunction to prevent future violations of the TSR and the 

Maine UTPA by Defendants; 

C.	 Award such relief as the Court finds necessary to redress injury to consumers 

resulting from Defendants’ violations of the TSR and the Maine UTPA, 

including, but not limited to, rescission or reformation of contracts, restitution, the 

refund of monies paid, and the disgorgement of ill-gotten monies; 

D.	 Adjudge civil penalties of not more than ten thousand dollars ($10,000) for each 

intentional violation of the Maine UTPA pursuant to 5 M.R.S.A. § 209; and 

E.	 Award Plaintiff State of Maine the costs of bringing this action, prejudgment 

interest pursuant to 14 M.R.S.A. § 1602-B, and such other and additional relief as 

the Court may determine to be just and proper. 

 Respectfully submitted, 

 JANET T. MILLS DAVID C. SHONKA 

Acting General Counsel Attorney General, State of Maine 

/s/ Elizabeth K. Nach /s/ Brendan F.X. O’Neil 

 Brendan Elizabeth K. Nach F.X. O’Neil

 Linda J. Conti James A. Prunty 

 Assistant Federal Trade Commission Attorney General 

600 Pennsylvania Avenue, NW Office of the Attorney General 

Washington, D.C. 20580 6 State House Station 

 Augusta, ME 04333 Telephone: 202-326-2611, -2438 

 Telephone: 207-626-8842, -8591 Facsimile: 202-326-3259 

 Facsimile: 207-624-7730 Email: enach@ftc.gov; 

 Email: brendan.oneil@maine.gov; jprunty@ftc.gov 

 linda.conti@maine.gov 

 Attorneys Attorneys for Plaintiff for Plaintiff

 STATE FEDERAL TRADE COMMISSION OF MAINE 
 

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