Oprah Winfrey and Dr. Mehmet Oz Settle in Acai Lawsuit

Salt Lake City-based MonaVie agrees not to use stars' image in advertising.

May 5, 2010, 10:11 AM

May 5, 2010 — -- Television superstars Oprah Winfrey and her medical sidekick Dr. Mehmet Oz have settled with at least three companies in a lawsuit over the use of their images to promote the superfood acai.

Salt Lake City-based MonaVie, the maker of acai-based energy products, announced today that the lawsuit filed by Harpo Inc., the owner of both the "Oprah" and "Dr. Oz" shows, had been amicably resolved.

Another Utah company, 456 Health Systems and a related entity, B67 Nutra Pure Systems, also settled for the unauthorized use of trademarks and images of the television stars.

"I'm encouraged that we are making progress in putting a stop to the false use of my name and Oprah Winfrey's in association with these health supplements," said Oz in a prepared statement today.

"We are sending a powerful message to those who are engaging in these false and deceptive marketing practices that they cannot continue to take advantage of consumers without consequence," he said. "We are pursuing these cases because companies, by falsely using my name and Ms. Winfrey's, are not only deceiving consumers into buying their products but are also potentially posing a health danger to those who believe their false and unproven claims.

"Our lawsuit is making a difference, but the problem still persists, so buyer beware," said Oz. We remain committed to doing what we can to stop these fraudulent marketers."

Marc Rachman, a New York attorney who represents Winfrey, Oz and their companies, told the newspaper that they hoped to reach agreements with others soon.

"It's in Oprah and Dr Oz's benefit to go after these companies because they are trading on their good names," said Alison Southwick, spokesman for the Better Business Bureau (BBB). "It will also hopefully serve as a deterrent and warning to companies that you can't get away with falsely claiming a celebrity endorsement."

Harpo Productions filed 50 lawsuits against companies, including the action against MonaVie, which was filed Aug. 9, 2009, in United States District Court.

MonaVie was accused in the lawsuit of using unapproved distributor websites and social networking sites -- all of which are now shut down or no longer operating.

"We at MonaVie deeply respect Ms. Winfrey, and are pleased that this situation has been agreeably resolved," said Julie Jenkins, spokeswoman for MonaVie. "We were excited to learn that Dr. Mehmet Oz perceived the acai berry to be of potential health benefit; however, at no time did we believe that Dr. Oz or Ms. Winfrey endorsed our product."

Jenkins said the stars' images were never used on MonaVie's corporate website or in its marketing materials. The incidents cited in the lawsuit involved "a handful" of independent contractor Web sites, she said.

MonaVie said it will make every effort to ensure its distributors will not use the unauthorized endorsements of Winfrey and Oz and it will impose steep penalties for violators, including docking their commissions.

Harvested as a deep purple pulp from 60-foot palm trees, acai (pronounced "ah-sigh-ee") is exported and sold in a capsule, powder or juice form at health food stores and online.

Acai products are distributed through such stores as Whole Foods, Wild Oats and Jamba Juice, as well as many conventional grocery chains and the Web.

Dr. Oz Says He Didn't Endorse Acai

Oz, who is also a Columbia University heart surgeon, had frequently mentioned the vitamin-packed berry on his show, but he told ABCNews.com last year that he had never officially endorsed acai.

"Acai is a powerful antioxidant," said Oz, who was in production for his show at press time. "Colorful, dark foods like red wine, pomegranates, concord grapes, blueberries -- they call them brain berries -- are full of nutrients."

As far as those weight-loss properties, Oz said, "I'd be surprised if by itself acai could help."

The BBB warned consumers last year that many companies under scrutiny had used unauthorized images of celebrities to promote their products, claiming falsely that their products can protect one's health and help with weight loss.

The BBB said online sales of acai berry products had mislead consumers, resulting in 10,000 complaints in the last two years.

"The problem was so bad that one company selling these supplements, FWM Laboratories, was actually in the top five for most-complained-about businesses in North America," said Southwick. "In fact, only three companies received more complaints than FWM last year."

"These companies know that people trust Oprah and Dr. Oz and an endorsement from either would be a boon for sales," she said. "Many people in their complaint actually said that they thought they could trust the company because Oprah or Dr Oz endorsed the product."

In a scheme called "negative option" advertising, dozens of companies nationwide offer "free" trials of acai diet products, claiming endorsements from Oprah Winfrey, Rachael Ray and others, but then charge month after month unless the consumer cancels the order, according to the bureau.

"BBB [the Better Business Bureau] can't speak to the restorative or weight loss properties of acai-based products, but we are taking companies to task for their misleading sales and marketing practices," bureau spokesman Steve Cox said at the time.

The endorsements are also misleading, according to the bureau, and some celebrity lawyers have already gone after these online companies.

"Consumers should be aware that Oprah Winfrey is not associated with nor does she endorse any acai berry product or online solicitation of such products. Attorneys for Harpo are pursuing any companies that claim such an affiliation," Don Halcombe, spokesman for Harpo Productions, Winfrey's production company, told ABCNews.com last year.

The so-called "super food" has been praised for its antioxidant properties on television shows and on social networking sites, with some claiming it fights cancer, aging and weight gain.

Today billion-dollar beverage giants, including Coca-Cola Co., PepsiCo Inc. and Anheuser-Busch Cos., are adding the fruit to their beverage lineups, according to The Wall Street Journal. It's also found in products from Stonyfield Farm and Haagen-Dazs. Procter & Gamble Co. recently infused acai into its Herbal Essence shampoos and conditioners.

In November, according to the bureau, more than 1.5 million people searched for the term "acai" on Google. Online ads and Web sites often include a photo of a celebrity -- such as Winfrey -- and falsely claim that she endorses the acai as a weight loss miracle.