Roca Labs is the kind of ‘weight loss’ company you might see in late-night infomercials, offering a ‘nutritional supplement’ that purports to keep a consumer feeling full so that they don’t feel the need to eat more. To maximize prospective customers’ impressions that its products work as advertised, Roca Labs requires that those who purchase the product at a ‘discount’ agree not to tell anyone if it doesn’t work for them.
Inevitably, some of Roca Labs’ customers don’t have a positive experience. Some take to websites like PissedConsumer.com — which Roca Labs has now sued — to recount their experience. And, just as inevitably, Roca Labs issues ominous cease and desist notices demanding compliance with their speak-no-evil clause, under threat of lawsuits and attorneys’ fees.
That practice should concern — even alarm — consumers because it operates to silence criticism even where the criticism is completely true. Consumers are, generally speaking, rational: they can evaluate whether or not a negative or positive review is predictive of what they’ll experience should they buy a product or service, particularly where the company itself can respond to and counter criticism. While I’m in no position to weigh the merits of Roca Labs’ products, at least some of what Roca Labs has attempted to silence is likely true.
Roca Labs’ Non-Disparagement Clause: Speak No Evil (Or Anything Slightly Negative)
In order to purchase Roca Labs’ products, prospective customers must fill out a form and be qualified by Roca Labs, which promises that the information “will be kept confidential and will NOT be shared.”
In exchange for a discount, consumers agree to terms which include a non-disparagement clause. These provisions are often found in employment agreements and settlement agreements, where the parties need assurance that they can share sensitive, confidential information, or where they simply want to wash their hands of one-another and avoid further litigation. Outside of this context, they are unusual and controversial. Kleargear’s business famously cratered after it attempted to enforce such a provision in consumer agreements, and similar clauses in vacation home rentals have been criticized. California recently outlawed contracts purporting to waive “the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.” A similar proposal has been introduced in Congress.
Roca’s speak-no-evil clause currently reads:
“You agree that regardless of your outcome, you will not disparage RLN and/or any of our employees, products or services. This means that you will not speak, publish, cause to be published, print, tweet, review, blog or write negatively about RLN, or our products or employees in any way. […]
Should you violate this provision, as determined by RLN in its sole discretion, you will be provided with seventy-two (72) hours to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid. In addition, if requested by RLN, you agree to provide RLN with a notarized affidavit that your disparaging remarks or review contained factually inaccurate material, was incorrect and breached this agreement.”
By these terms, if a customer disparages Roca Labs or its employees, he or she can be compelled to sign an affidavit testifying that the statement was false, even if the criticism was entirely true or consisted entirely of opinion. In fact, a previous iteration of these terms — which Roca is now attempting to enforce — required customers to agree that “any such negative claim will constitute defamation per se.”
Leaving aside the detriment to depriving potential customers of the opportunity to hear positive and negative reviews, this term, taken broadly, could apply to — and dissuade — consumers who have a negative experience from talking to their physician about it. Or, perhaps, the FDA or other regulatory bodies. Indeed, a cease and desist letter from Roca Labs’ “paralegal” characterized this term as requiring that customers “report complaints only to Roca Labs.”
Roca Labs’ terms go even further, requiring customers to ‘like’ Roca Labs on Facebook, follow their Twitter account, and “help promote RLN and our products by sharing your weight loss success with us.” Roca’s customers must agree to let Roca use their “real pictures and video” in advertisements.
These provisions might give a customer pause: even if they’re proud of their accomplishments, do they want to be an advertisement for a company which unabashedly engages in fat-shaming? Do they want to give up their ability to vent if they feel their money was wasted? If not, customers have two options: don’t buy the product, or buy it for at least twice the cost.
Roca Labs: Hear No Evil
How has this played out? Poorly. In attempting to relegate all consumer complaints to their inbox, and not anywhere else, Roca has reaped the Streisand whirlwind.
In addition to at least one lawsuit against a customer, and threats to various critical blogs, the company has taken to threatening the hosts of such websites — even though hosts are indisputably immunized, by virtue of CDA Section 230, for claims resulting from the alleged defamation by their clients.
Roca’s lofty ambitions have lead it to a lawsuit against PissedConsumer.com — a site which has been criticized for ethical issues of its own — which allows customers to gripe about various companies, including Roca Labs. The case itself has become a microcosm of censorious thuggery, with Roca Labs threatening to sue all three witnesses who submitted affidavits in opposition to the company, bizarre (and disproven) claims of celebrity endorsements, a cute affidavit comparing tweets to virii, and a pending, half-coherent motion for an injunction against PissedConsumer posting any “negative” information about the company. (PissedConsumer’s response is here — bonus points if you can spot the Big Lebowski reference.)
Leading up to the lawsuit, replies purporting to be from Roca Labs’ “legal team” were posted on many of the critics’ posts on PissedConsumer.com, demanding that they remove their posts due to a breach of the speak-no-evil clause. Some of these posts purported to be from Sharon King, Roca Labs’ “paralegal.”
Customers’ complaints to the Better Business Bureau often resulted in legal threats and the disclosure of personal information. Responses from Roca Labs repeatedly criticized customers for failing to have read their terms of service — an indication, perhaps, that the contract is one of adhesion, and oppressive terms (like the non-disparagement clause) should not be enforced. One complaint, on July 11, 2013, recounts the company threatening to call the police for “extortion”, apparently because the customer referenced others’ poor reviews and said that she was “certain you do not want videos floating around on the Internet and YouTube, stating these facts.” In response to a March 18, 2013 complaint, Roca posted the IP address of the customer and recounted her application as stating that she was “on Phen Phen” and overweight due to “Snacking all day Junk food High fat food Sweets Can’t stop bad habits[.]”
Flooded with complaints to the BBB, Roca turned its litigious eyes on the Bureau. In response to the tweet of a Better Business Bureau employee defending the BBB against Roca Labs’ claims that the BBB is a “mafia organization”, Roca demanded the employee’s personal address to effectuate legal process — the beginning of a lawsuit:
— Roca Labs (@RocaLabs) September 20, 2014
Roca Labs: Seriously, Stop Talking About Our Doctor
Roca Labs’ website and YouTube channel are saturated with images of attractive men and women wearing lab coats emblazoned with the caduceus — a symbol commonly associated with doctors and medical professionals — leaving the viewer with the impression that these are educated, licensed professionals. This is a product I can trust!
Until yesterday, Roca Labs held out one such doctor — “Dr. Ross” — as its “Director of Medical Team”, hailing from “NJ, USA.” The company rarely identified him by his full name, instead severing his last name to a mere initial. In a “Letter to Your Doctor”, Dr. Ross described himself as “an independent medical consultant” describing the “Roca Labs Formula” to assure his “fellow doctor” as to its benefits. The letter was signed with his full name, followed by “MD” — medical doctor.
Dr. Ross F. also appeared in a (now deleted) promotional video for Roca Labs:
One of the Pissedconsumer.com posts concerns Dr. Ross F, alleging that he had lost his medical license because he had been convicted of possession of child pornography. (I am not providing his full name: while his conduct is reprehensible, the focus should be on current wrongdoers, not past wrongdoers. Perhaps that’s why Roca Labs preferred to drop his last name as well.)
This allegation is corroborated by an Order of Revocation from the New Jersey State Board of Medical Examiners, which incorporates a plea agreement, and an Order for Non Practice of Medicine from the New York State Department of Health. The substance of the agreement was that the Dr. Ross — a pediatrician — surrendered his licenses to practice medicine in New Jersey and New York and was prohibited from seeking a “license to practice medicine in any jurisdiction at any time in the future.”
The New Jersey order also includes prohibitions which “not only bar a licensee from rendering professional services, but also from providing an opinion as to professional practice or its application” and requires “affirmative action to stop advertisements by which his/her eligibility to practice is represented.”
In addition to the advertisements above, there’s also this now-deleted post, under the “ask the doctor” in which Dr. Ross F. recounts his role in the company:
I have reviewed thousands of formal inquiries from the public that request to begin using the Roca Labs Formula for weight loss. […] I review each case individually for medical accuracy. I have been the medical director at Roca Labs for the past year. I was in clinical medical practice for 10 years before moving into pharmaceutical management. I have been involved in the development and ongoing monitoring of the Roca Labs Formula. I work directly with the staff and customers to maintain the highest levels of medical accuracy and safety.
And while it’s unclear whether the feature ever launched, a now-deleted page advertised that the company would soon offer, for thirty-five dollars, online consultations with Dr. Ross to provide “consultation and medical advice.” Another now-deleted post advertised that for a mere $380, the “online medical staff will be at your service with detailed answers and advice 24/7″ — an option known as “be my doctor”, although it’s unclear whether Dr. Ross was employed by Roca at the time.
Although the author of the post on PissedConsumer.com gave no indication that he or she was a customer of the company, a post purporting to be from Roca Labs “paralegal” Sharon King demanded its removal because the complaint “violates the terms and conditions of your purchase and constitutes a breach of contract and possibly defamation.”
Within hours of having emailed Roca Labs for comment, the video of Dr. Ross F. was removed from YouTube and the “letter” was hastily edited to remove his name and photo. Roca, in an email to me, explained that this was not the result of my email, but was all part of the “plan.” Roca Labs never responded when I asked what the “plan” was.
To be sure, the orders of New Jersey and New York explicitly do not require Dr. Ross F. to “affirmatively advise patients or others of the revocation, suspension or surrender” except in response to an inquiry, nor is it entirely clear whether the order prohibits his association and work with Roca Labs. In fact, his precise relationship with the company is entirely unclear: was he merely there to give the appearance that someone whose name is preceded by “Dr.” endorses and gives legitimacy to the company’s “formula”? Or did he have a greater role in the company’s product? If so, did those acts — whatever they were — constitute the practice of medicine? And if there are other doctors — posts on the BBB site by Roca indicate that a doctor reviews qualification forms — what are their qualifications?
Nevertheless, this is the conduct of a company which says that it is “completely transparent” and that “nothing is hidden“: intimidate critics with ominous (and likely baseless) threats of legal action and, when questions are raised, refuse to answer.
Roca Labs: We’re Not Gonna Say Anything, Either
I emailed Roca Labs’ counsel and management seeking answers to questions about the doctor and Roca Labs’ heavy-fisted approach to negative reviews. After its counsel deferred to management, I received a series of emails from Roca Labs, none of which answered any of the questions I posed. Rather, Roca refused to answer questions on the basis that I wasn’t actually a journalist, but instead “Marc Randazza’s writer.” (Randazza represents PissedConsumer.com in Roca’s lawsuit. He’s a friend, and one of few people to have ever said a nice word about me, but I was planning on writing about Roca even before I knew Randazza was involved. Our interests sometimes overlap. Take that for what it’s worth.) After I teased one of their emails on Twitter, Roca’s tone changed: they considered me a “serious journalist” until I tweeted about them. Besides, they said, my questions were a “trap.”
Turning to offense, Roca cited a post on RipoffReport — the same sort of “consumer gripe site” Roca Labs has condemned in its lawsuit — for the proposition that Randazza is a Very Bad Person. That post, as well as other links provided by Roca, was by Crystal Cox.
Roca Labs: Stop Doing Evil
Roca Labs’ red herrings aside, the company has still failed to substantively answer the questions I posed or respond to criticism of its anti-consumer speak-no-evil clause. Roca has engaged in heavy-handed bullying of people who feel ashamed of themselves and looking for an affordable remedy, subjecting them to even more anguish in the prospect of facing an often-confusing legal system. All in the name of silencing critics.
This is the behavior one would expect from snake-oil salesmen. Even if Roca Labs’ products work miracles, should consumers support this type of conduct at any cost?