Respondents argue that Complainant failed to sustain its burden of proof because it failed to introduce any studies, and its expert witness was unaware of any studies, which establish that the combination of amino acids in Dream Away do not contribute to, or cause, weight loss. Expert opinion testimony need not be based on personal knowledge or testing of a specific product or studies proving that a product will not cause, or contribute to, the results represented. The falsity of a representation may be based on an expert's overall knowledge, his opinion as to the probability of something occurring or existing and the informed medical and scientific consensus. In this case, a preponderance of evidence consisting primarily of the opinion of Complainant's expert witness and the consensus of informed medical and scientific opinion establishes that the product Dream Away will not perform as claimed. Certain contrary views expressed by Respondents' witnesses were not shown to represent a consensus of informed medical opinion and did not persuasively rebut the informed medical and scientific consensus and the opinion of Complainant's expert.
Respondents cite various articles which they allege support their position.
The articles relied on by Respondents fail to support the proposition that the ingestion of the amino acids contained in Dream Away causes or aids weight loss. One study relied on by Respondents, referred to as the Isidori study, is supportive of an increase in growth hormone secretion when a combination of relatively small amounts of the amino acids arginine and lysine, which would approximate those in Dream Away, if taken with skim milk after a four hour fast. Thus, the evidence of record is persuasive that the product Dream Away will have no effect on weight or fat loss.