As anyone who follows my blog knows, I have been quite active in warning people against sweepstakes fraud, Nigerian scam letters, and other types of jiggery-pokery, including nutritional scams like the Acai berry, Forskolin, Green Coffee Extract, Garcinia Cambogia, and others – most of which are relentlessly flogged by affiliate marketers including the infamous Dr. Oz.
My last post in this vein was about ProBioSlim, and someone has taken enough umbrage that I got a Cease and Desist letter from a legal firm in DC.
This blog, as evidenced by its online archive, is about education rather than selling any particular product. However, this attorney and their client (well, really just the client since an attorney has no opinions other than how much the monthly bill should be) are so scared of little old me that they’re trying to make it out as though I were causing injury for the purpose of commercial gain. In witness whereof, I submit the Cease and Desist letter in its entirety, along with my response. You decide for yourself.
Here the letter from the law firm, redacted only for some PII:
September 1, 2015
VIA FEDERAL EXPRESS OVERNIGHT
Re: Defamation and Commercial Disparagement: Your Statements at
We are writing on behalf of our client, SmartBiotics, LLC, concerning a recent post you appear to have made at https://playingintheworldgame.wordpress.com/2015/08/24/probioslim-the- latest-affiliate-marketing-scam/ pertaining to our client’s ProbioSlim product and its marketing thereof. A copy of the post at issue is enclosed. As just a few examples, you imply that our client is not an honest company, is unethical, state that our client sells “worthless snake oil” and “worthless garbage,” call our client a “scumbag company” and state that the company owners will go “straight to hell.” Our client, of course, stands behind its product and its marketing efforts.
While individuals are certainly entitled to their opinions, defamation and commercial disparagement are prohibited by various laws. Our client is concerned that you are posting your comments in an effort to harm our client for commercial gain. (Emphasis mine)
Upon brief investigation, it appears that you own OCH Distributing, and at your company website at http://mydistilpuremsm.com/WeightLoss.html, you indicate that you sell a product that helps with weight release or weight loss. A copy of this webpage is enclosed. It also appears that, at this same website, at http://mydistilpuremsm.com/Order.html, you sell products including a book entitled “Releasing Fat.” A copy of this webpage is enclosed. Further at your personal website at http://home.comcast.net/~ccdesan/desantis.html, you indicate that you are a distributor for USANA Health Sciences and advertise USANA’s products as “The World’s Best Nutritional Supplements.” Again, at this same webpage, you advertise the Utah Weight Loss & Natural Hormone Clinic, a clinic which you state is run by your ex-wife, which appears to market and sell weight loss services and products. A copy of this webpage is also enclosed.
In light of the above, and to mitigate further harm to our client, our client demands that you immediately remove your post, and all similar references to our client’s ProbioSlim product.
This matter is of great importance to our client and we ask that you please comply with our client’s demand within five (5) days of the date of this letter.
We recommend that you discuss this matter with your attorneys.
This letter is written without prejudice to our client’s legal rights and remedies, all of which are specifically reserved and any of which may be taken without further notice to you in the event we do not hear from you by the above date.
And here, for your gratuitous edification, is my response:
September 1, 2015
Wow. My first C&D letter in 10 years of doing business. I’m flattered.
Executive summary: I respectfully decline to change a word of my blog. I stand by it.
Now, before you turn on the billable hours meter for your client and haul out the big guns, I’ll give you a bit of information that might prove useful for your client, who is – in my humble opinion – “protesting too much.” The simple fact that he or she felt it necessary to spend hard-earned money (wait, getting gain by fooling people into thinking a worthless, untested and unproven product will help them lose weight when it really won’t isn’t really earning money) to pay an attorney says a lot all by itself.
First of all, my blog is an equal-opportunity disparager. Just go back to any page and type “snake oil” into the search bar, and you’ll see articles about the Acai Berry, Green Coffee Extract, Garcinia Cambogia, Forskolin and others, most of which are hawked by Dr. Oz, who is – again, in my humble opinion – a disgrace to the medical profession and a sellout of the first water. ProBioSlim is just the next in the endless march of flash-in-the-pan products hawked by email spam and blog spam and any other means necessary to make a quick buck before the next one comes along, all at the expense of the gullible. Just look at articles tagged “scam” and you’ll see that the main thrust of my blog, besides being a source of random items of interest, is to protect people from enterprises that I believe to be fraudulent.
Next, let’s look at your letter in detail.
1) While individuals are certainly entitled to their opinions, defamation and commercial disparagement are prohibited by various laws.
Indeed they are. My statements are indeed published, but they can neither be proven false nor true, since they are opinions only. Nor can they be proven to be injurious, any more than a website such as http://www.dietpillswatchdog.com/probioslim/. Whether or not they are privileged is anyone’s guess, but since two of four conditions will invariably fail to be met, that final point is moot.
2) At your company website at http://mydistilpuremsm.com/WeightLoss.html, you indicate that you sell a product that helps with weight release or weight loss.
This is a true statement. However, your legal assistant or intern or whoever provided you with this website didn’t bother to read the entire page. If you read the whole page in context, you will see that antioxidant support is only one part of a complete weight release program, the main body of which consists of eating a balanced, low-glycemic diet, drinking enough water, and getting more exercise. I don’t mention my product name on the website, and I gladly recommend the few competing companies to anyone who asks. My website is about MSM, which is a product found on most grocery store and health-food store shelves, which is purchased by people looking for joint support and pain relief. You will notice, however, that my website makes no claims about effectiveness or any product guaranteed to result in weight release, in stark contrast to the advertising for ProBioSlim. I quote from the relevant web page which you referenced:
Get adequate vitamin support. Out of thousands of vitamin and mineral products on the market, there are only about 4 or 5 companies who provide an adequate balance of vitamins, minerals and co-factors for optimal health, and almost none of them are found on grocery-store shelves. We can provide you with one of them. If you’re interested, contact us. But do your research. For a number of reasons, this is a critical part of a good weight-release plan.
It would also pay you to read this page from my blog:
What I put out there is science-based and is more for education than for the purpose of making a buck.
3) It also appears that, at this same website, at http://mydistilpuremsm.com/Order.html, you sell products including a book entitled “Releasing Fat.”
Also true. In this book, Dr. Ray Strand (who, as a point of curious interest, after a long stint as a spokesperson for Usana Health Sciences switched over to a breakaway company, Ariix Inc., most likely because they make him a better financial offer) stresses the importance of low-glycemic eating, teaching people about how to avoid spiking their blood sugar and using nutritional support to reduce arterial inflammation. It’s a good read, and I recommend it to anyone who wants to release weight. Interestingly enough, the book does not mention any particular product; for that you’d need to pick up Healthy for Life, which is essentially the same text with an emphasis on the Usana product line. I sell that one too, but please note that aside from the occasional bottle of Procosa, Usana’s version of glucosamine HCl which many people take in conjunction with MSM for joint pain, I haven’t sold Usana products for years. Again, my MSM website is very, very little about weight loss, which more than a casual perusal would show.
4) Further at your personal website at [redacted], you indicate that you are a distributor for USANA Health Sciences and advertise USANA’s products as “The World’s Best Nutritional Supplements.” Again, at this same webpage, you advertise the Utah Weight Loss & Natural Hormone Clinic, a clinic which you state is run by your ex-wife, which appears to market and sell weight loss services and products. A copy of this webpage is also enclosed.
Both correct. I still recommend USANA products to anyone who asks because I believe that along with Douglas Laboratories and a few others, they put out high-quality nutritional products that – unlike most of the garbage sold at GNC and other stores (Ref: http://www.washingtonpost.com/news/morning-mix/wp/2015/02/03/gnc-target-wal-mart-walgreens-accused-of-selling-fake-herbals/) – actually contain what they say they do. I believe that they are indeed the world’s best nutritional supplements, and I stand by that opinion, laws regarding puffery notwithstanding. That said, as indicated in No. 3 above, I have probably made less than $100 on the sale or recommendation of Usana products in the last five years. And yes, I have documentation. Hardly a thriving enterprise, and hardly a threat to anyone. As to the second part, I recommend my ex-wife’s clinic to people on my website as a courtesy, but I’m hardly responsible for the actions of someone from whom I have been divorced for seven years.
Lastly, I recommend that you read this page from my website: http://mydistilpuremsm.com/Honesty.html. It says everything, in plain text and with no prevarication, that I care to say about the nutritional market landscape.
Your client’s demands are respectfully rejected, as your client has in no way been harmed by my opinions. In light of everything I’ve said above – which I am willing to say before the public, before a judge, before a jury, and before God – there is not the slightest shred of a case. Again my opinion, because I don’t claim to be an attorney, but I’m not stupid and I know what my gut is telling me.
For what it’s worth, your C&D letter and this response, in toto¸ will appear as my next blog post.
Owner, OCH Distributing
PS: In the interest of ethicality, not a word, not a jot, not a tittle of my blog or my websites will be altered for any reason. I have nothing to hide.
So now we wait. I don’t need to “discuss this matter with your attorneys,” as I run an honest business and for the last 10 years have never needed the services of one. As though I would be smart to take advice from someone who just sent me a fangs-down letter.
I’ll keep you posted.
Edit: 10/5/2017 – Two years and a month later… nothing.
The Old Wolf has spoken.