The MLM Attorney, Kevin Thompson Reports: FTC Responds to Senator Markey’s Letter about Herbalife

MLM LawIn January of 2013, Senator Markey from Massachusetts called upon the FTC to investigate Herbalife. I made three predictions regarding the FTC’s response to Markey’s letter. I predicted: (1) The FTC would respond AFTER Markey’s requested dealing (Feb. 28); (2) the FTC would say nothing about Herbalife’s business model; and (3) the FTC would use this as an opportunity to start a broader conversation to help add clarity to the “gray” in the industry.

Well, there are two ways to look at my predictions regarding the FTC’s response.  I was either 66% wrong or 33% right. I’ll let you decide;)

The FTC’s letter to Markey is below. If you’re reading this via email, click here to read the letter.

The letter is easy to understand and interpret. Basically, the FTC cannot comment about Herbalife (which was the one prediction I got right). This is a quick summary of the letter:

85% of the letter was spent justifying the existence of the agency. I’ve paraphrased this part of the letter: “We’re busy and we’ve had a number of successes recently with respect to pyramid schemes and weight loss claims. While some say we’re dormant, we’re doing our best.”

The remaining 15% contains their response regarding Herbalife. It’s included below. I’ve paraphrased: “Thanks for bringing these concerns to our attention. We’re not able to talk about it. Just FYI, we assess a number of factors before making a decision to take actions. The factors referenced here are nebulous so as not to commit ourselves to anything specific. If consumers are having problems, give them our information.”

I have mixed thoughts about this response. I was hoping for something with more substance…something about their vision for the industry. But alas, we’ll save the discussion for improvements for a later date. At some point, the industry needs some help. The regulators are not able to squish all of the bad guys, which has led to a dirty environment.

With respect to the allegations against Herbalife, Ltd., a number of statutory provisions and the Commission Rules of Practice prevent me from discussing what action, if any, the Commission may take in any particular situation. I can assure you, however, that the information you provided and the concerns you expressed are being carefully considered. In general, in determining whether to take enforcement or other action, the Commission may consider a number of factors, including the nature of the practices at issue; the type of violation alleged; the likelihood of preventing future unlawful conduct and securing redress or other relief; the nature and amount of consumer injury at issue; and the number of consumers affected.

Complaints from consumers can provide valuable information that we frequently use to identify deceptive and unfair practices in the marketplace. Therefore, please encourage your constituents to file their complaints with the FTC, in English or in Spanish, by visiting the FTC’s online Complaint Assistant at or by calling 1-877- FTC-HELP (1-877-382-4357).