In April 2017, the U.S. Federal Trade Commission announced that the marketers of the NutriMost Ultimate Fat Loss System had agreed to settle FTC concerns that their program had been marketed deceptively. NutriMost has greatly modified its program and business practices, but it may be instructive to look at what happened before the FTC became involved.

Background History The NutriMost Ultimate Fat Loss System was developed by Ray Wisniewski, D.C., a chiropractor who practices in Pittsburgh, Pennsylvania [1]. He began franchising it in 2014 and, by January 2016, the program was available through more than 160 clinics, most of which were operated by chiropractors. For at least two years, the NutriMost Web site claimed that the Ultimate Fat Loss program was “designed to help keep your hormones in the very narrow Ultimate Fat Burning Zone” and that “The typical results are 25 to 45 pounds of fat loss in a mere 40 Days!” [2] The site also claimed that the program (a) “virtually melts away” fat, (b) targets difficult-to-lose fat areas, and (c) does not require exercise, strenuous dieting, or radical changes in life style [3]. These claims were preposterous.

For several years, the NutriMost System was centered around use of a ZYTO device. ZYTO systems use a hand cradle (pictured to the right) that relays low-voltage signals to and from a computer that runs proprietary software that recommends products. Their manufacturer, the ZYTO Corporation of Orem, Utah, states that the software “sends stimuli to the body using digital signatures that represent actual things” and interprets fluctuations in skin resistance that indicate “the body’s degree of preference for the items being assessed.” [4] I do not believe that skin resistance and the other data generated by the ZYTO have any practical health significance [5]. For several years, the NutriMost System was centered around use of a ZYTO device. ZYTO systems use a hand cradle (pictured to the right) that relays low-voltage signals to and from a computer that runs proprietary software that recommends products. Their manufacturer, the ZYTO Corporation of Orem, Utah, states that the software “sends stimuli to the body using digital signatures that represent actual things” and interprets fluctuations in skin resistance that indicate “the body’s degree of preference for the items being assessed.” [4] I do not believe that skin resistance and the other data generated by the ZYTO have any practical health significance [5].

ZYTO’s hand cradle has FDA 510(k) clearance for the purpose of measuring galvanic skin response (the skin’s resistance to the passage of electrical current). [65] However, the computer component of the ZYTO system that “interprets” the measurements is not cleared or approved for diagnosing anything, identifying “toxins,” preparing medications, or providing data relevant to weight-reduction. Nor, as far as I can tell, have the claims made for it ever been supported by a scientific study published in a recognized journal [7]. In May 2015, the FDA warned ZYTO Corporation that it was illegal to promote its ZYTO hand cradle for use in diagnosing a disease or condition or predicting biological responses to a wide range of virtual stimuli including drugs and nutritional supplements [8].

In promoting NutriMost, Wisniewski, who called himself “the Weight Loss Answerman,” claimed that excess weight is caused by the accumulation of “toxins” in body fat and that the ZYTO prepared and imprinted “energetic resonant frequencies” into customized formulas that “tell your body’s cells “how to more effectively detoxify.” The recommendations were embodied in a colorful report given to the patient, which stated:

Utilizing the latest developments in cellular biocommunication technology we are able to “listen” to the body—to determine what supplements and the exact amount of each supplement that the body has a biological preference for which tremendously aids our decision making to attain the best results for long lasting and permanent targeted fat loss.

Here’s how it works; Using the most advanced technology with the NRF (NutriMost Resonant Frequency) biocommunication technology, the computer sends a signal to the body in the form of a virtual stimulus, your body responds with very subtle changes in the electrical properties of your skin and the hand cradle measures these changes and sends that information back to the computer; it’s like the computer’s asking your body a question and your body’s answering. . . .

Utilizing NRF Technology and the NutriMost Ultimate Fat Loss scan we now have the technology to assess the factors of fat burning, fat storage and fat metabolism. Including the organs involved, the hormones, neurotransmitters, vitamins, minerals, toxins, heavy metals, parasites, bacteria, viruses, mycoplasma, candida or biotoxins.

Our goal with this scan is to create a personalized and customized plan that will address your body’s top organ stressors as well as finding the best products to balance those biological stressors. All weight gain involves imbalances within the body’s organs and hormones. To have lasting and permanent weight loss we must correct these organ and hormonal imbalances. The NutriMost Ultimate Fat Loss Scan has been programmed to help give your body the nutritional tools that it needs to overcome these specific imbalances and to promote bringing the body into a very narrow hormonal range for optimum fat burning.

. . . . We expect to not only bring your body into the optimum fat burning zone but also balance and correct both the organ and hormonal stressors allowing us to go beyond weight loss and help you to actively create a lifetime of health [9].

These concepts are nonsensical. Obesity is not caused by toxins or infectious agents. Cells do not have “resonant frequencies.” And ZYTO cannot “imprint” frequencies into products or “assess” anything related to obesity or body health. After the FDA warning letter was issued, I noticed that many of the NutriMost clinic Web sites stopped mentioning the ZYTO by name but instead said that the program relied on “Comprehensive Electro-Impedance Resonant Frequency Technology” or “CERF Technology.”

Before the FTC settlement, more than 60 people contacted me about their experience with a NutriMost practitioner. They reported that the program cost about $2,000 and included:

The ZYTO scan. The scan reports I have seen identified (a) “top 5 out of range organs affecting fat loss,” (b) “weight loss/fat loss product balancers,” (c) “signatures for the detoxification formula,” (d) “resonant frequencies in your energetic hormonal formula,” (e) “top 7 vertebral stressors,” (f) a “positive belief change affirmation,” and (g) “preferred foods.” Such data have no science-based significance.

A 96-page manual that contained theoretical explanations, detailed instructions, and recipes.

A very-low-calorie “food plan” that supposedly caused the body to get into a “near perfect and exact fat burning state.” The NutriMost manual claimed that hunger would not occur because “appetite will naturally be suppressed by the 2000 up to 7000 calories of fat you will be burning dues to the weight loss program.” The typical recommended caloric would be 500 to 800 calories per day with very little carbohydrate.

Weight-loss formulas prepared with the help of the ZYTO device. To ensure their potency, the directions said to “sucuss” them by tapping the bottle on the heel of the hand 8-10 times in rapid succession. The bottle marked “H 14” was said to have been customized for one of the patients who complained to me.

The sales process typically began with a radio ad, a newspaper ad (see example to the right), or a lecture that invited people to undergo a free or low-priced evaluation. Although many of the ads referred to the “technology” of the ZYTO scan, the device was not mentioned and the initial consultation was centered around being weighed on a scale said to determine the person’s percentage of body fat and “metabolic age.” In reports I have seen, the “metabolic age” number was much higher than the person’s actual age. Several people told me that they were very frightened when told that their metabolism was “like that of a 90-year-old.” The ZYTO scan did not take place until after the full (nonrefundable) program is purchased. Most people who contacted me reported that during the sales process, they were not told that the calorie content of the diet was extremely low.

Practitioners typically offered a “discount” to patients who paid the full amount in advance and signed a contract which said that no refunds would be given. Some contracts I have seen included provisions intended to protect the clinic owners from complaints. They said (paraphrased):

NutriMost does not provide any medical advice, medical treatment, or diagnosis.

The health information and materials given to the customer are provided with no warranty that they are fit to use. NutriMost does not assume responsibility for any errors.

The information provided is “not necessarily based on scientific or reliable tests or studies.”

No product offered or recommended by NutriMost is intended to treat any medical condition.

NutriMost will not be liable for any type of damages the customer many incur by using the information, advice, services or products provided.

The customer agrees not to post any statements criticizing NutriMost through any online medium and agrees that any violation of this provision would make the customer liable for $35,990 in liquidated damages.

The customer agrees to waive any rights under any law that would limit the waiver of any such rights.

I doubt that most people who signed such contracts understood what they were signing.

The NutriMost manual claimed that men typically lose between 35 to 45 or more pounds in 40 days, while women tend to lose 27 to 32, that the system “ALWAYS works,” and that loss of 20 pounds is guaranteed. However, the “guarantee” was not a refund. The only thing available to those who fail was another 40-day cycle of the program—provided that they had kept all of their appointments, kept a diary, “followed the system and did not cheat and could show that.” The NutriMost contract stated that those who stopped the program in less than 40 days because they felt ill or because it didn’t work for them would not be eligible for a refund. However, several people have told me that their money was refunded after they threatened to complain to the chiropractor’s licensing board, their state attorney general, and/or the Better Business Bureau and, if necessary, to file a lawsuit. To get a refund, some clinics required patients to sign a “release of claims and non-disparagement agreement” that prohibited them from discussing their experience unless compelled to do so by a subpoena, regulation, or court order. The agreements I have seen included a 2015 copyright notice from NutriMost Doctor’s LLC. In 2016, many NutriMost sites reworded the guarantee this way:

Although results may vary, those who follow the program typically have a very high success rate. NutriMost guarantees at least 20 pounds of weight loss by the end of your entire program. If you do not lose at least 20 pounds, you will have your program extended until the total weight loss reaches 20 pounds, with all associated costs paid by your NutriMost office. If within 90 days, you have not reached at least 20 pounds of weight loss while on the program, your NutriMost office will refund any amount from the cost of the program which you as the client deem to be fair up to the entire cost of the program.

It seemed logical to me that people who were unable to follow the program (for health reasons, for example) would still be eligible for a refund. When asked, I advised callers who believed that they had been misled that if no immediate refund was offered, it might be practical to file suit under their state’s unfair and deceptive acts and practices laws [10], many of which enable plaintiffs to collect triple damages (or a substantial penalty) plus attorney fees.

In 2016, I noticed that more than 60 NutriMost Web sites had content that is identical except for the details about the individual clinic. Most have also had “before and after” pictures of the same six individuals who were said to have lost from 27 to 47 pounds on the program. I assume from this that the licensing arrangements included a pre-designed site that could be individually customized and that the six people were not clients of the clinics that displayed their testimonials. Searching with Google I found that at least 40 of these clinics contained this statement:

Although Dr. Ray has been traditionally trained as a Doctor of Chiropractic, he presents and offers NutriMost services as member only services under his Pastoral Medicine License # L29076049. Dr. Ray is a Christian who believes that God created this body with an amazing healing power and that there is nothing outside the body, that is as powerful as the power that God put inside the body. Pastoral Medicine is the Professional Blend of Scriptural Health Wisdom and Understanding along with Leading Edge Science. The NutriMost services are pastoral health services and should not be confused with state regulated services.

I do not believe that “licenses” issued by the Pastoral Medical Association (PMA) confer any legal right to practice a health profession [11]. I also believe that any service offered by licensed health professionals should be subject to regulation by their licensing boards, but only a few boards have addressed this issue. Some have ruled that PMA “licensing” does not convey the right to practice a licensed profession, but others have decided that if PMA-related activities are carried out as a separate business, they will not intervene. Regardless of what licensing boards decide, I believe that state attorneys general have jurisdiction under state consumer protection laws.

Curiously, at least 17 of the chiropractors who operated NutriMost clinics that utilized ZYTO testing have been subjected to regulatory action at some point in their career and least six are no longer licensed as chiropractors [12].

In December 2016, the NutriMost Web site stated that more than 125,000 clients had used the program during the previous three years. I also noticed that the site and nearly all of the franchisee sites no longer mentioned the ZYTO or its technology. Since that time, NutriMost has removed ZYTO testing from its program, stopped using “no-refund” contracts, toned down its weight-loss claims, and raised the caloric level of its recommended diet. Wisniewski has also stopped referring to his PMA “license” and asked NutriMost franchisees to do the same.

In 2016, I was able to obtain a working ZYTO device and tested myself 43 times in ten days. The software differed from the program used by NutriMost but was close enough that the results were relevant. Sixteen of the tests were “basic” scans that purported to detect problems with 20 body organs. These scans reported an average of 11 problematic organs, but the organs specified and the supposedly corrective products varied considerably from one test to another. I also took 12 food-category tests and 15 individual-food assessments. As with the basic scans, the individual-food scores were wildly inconsistent, with many foods scoring “positive” (recommended) on one test and “negative” (not recommended) on another administered a few minutes later. My basic scan results were so inconsistent that they could not possibly be clinically meaningful. In addition to being inconsistent, my food-category biosurveys recommended excluding so many foods that the resultant diets could be extremely unhealthful. These findings confirmed that the claim that ZYTO devices can provide useful information is preposterous [13].

Government Actions

In 2016, shortly after NutriMost decided to stop using its ZYTO program, the Federal Trade Commission contacted the company to express concerns about the claims and other advertising practices that had been associated with its use. Without admitting fault, NutriMost signed a settlement order under which NutriMost:

Is barred from making deceptive claims or providing franchisees with the means to deceive consumers.

Is barred from making weight-loss claims unless they are supported by competent scientific evidence.

Must not represent that users do not have to follow a restricted diet.

Must not require buyers to sign a contract barring them from making negative statements about the NutriMost system.

If using a diet of less than 800 calories a day, must disclose this fact during the sales process.

The agreement also called for payment of $2 million to cover refunds to consumers who bought the system directly from the NutriMost clinics operated by Wisniewski (not from the clinics operated by others). [14-16] In 2019, the FTC mailed checks for $560.64 to 3,483 people who had bought the NutriMost program between October 1, 2012 and August 9, 2016.

In 2017, the California Board of Chiropractic Examiners accused Cynthia Benkert, D.C. and Carlos Seals, D.C of a long list of improper acts in connection with operation of their clinic, NutriMost SoCal. The document noted that in addition to making fraudulent claims about ZYTO testing and the NutriMost System, both chiropractors had represented themselves as “licensed” by the Pastoral Medical Association, which was “not recognized by any regulatory agency as a legitimate governance body.” [17] About ten days later, Benkert voluntarily surrendered her chiropractic license, but she continues to do business as PuraVida Wellness.

In 2017, the Indiana Attorney General and the Indiana Board of Chiropractic Examiners charged Peggy Grabinski-Solano, D.C. with false advertising and failing to practice accordance with the body of scientific systematized knowledge related to the healing arts. The case was settled with agreements under which she was assessed $5,000, placed on indefinite probation, and required to (a) take 24 hours of continuing education, (b) perform 50 hours of community service, (c) pay refunds totaling $4,290 to two patients who had complained to the board, and (d) make full or partial refunds to 142 patients seen between July 1, 2016 and June 11, 2018 who request them [18,19].

Better Business Bureau Reports

For more than two years, the Better Business Bureau of Pittsburgh gave NutriMost LLC an “F” rating based on “advertising issues” and the company’s failure to respond to seven complaints. In January 2013, the BBB asked Wisniewski to substantiate a long list of claims on his Weight Loss Answer Man Web site, including the “25-45 pounds in 45 days” claim mentioned above. The BBB report noted that he did not reply [20].

About a year before the FTC settlement, NutriMost began transforming the company from one that was essentially Wisniewski and his chiropractic staff to a more developed company with structured departments and additional personnel. The expanded team modified the dietary program, eliminated ZYTO testing, abandoned business practices that had been criticized, and entered a formal partnership with the national BBB that included review of future ads. In response to these changes, the BBB revised its rating to A.

In July 2017, the main BBB site listed about 80 other NutriMost businesses under separate names. Of these, 14 had “F” ratings and several reports noted that the advertising claims violated the BBB Code of Advertising,

Similar Clinics

Three companies in New York and New Jersey have used NutriMost’s name and/or sales materials:

A chain of clinics in the New York City metropolitan area is making claims that are nearly identical to those of NutriMost. The proprietors appear to use a ZYTO device in the same way but also tests hair and saliva samples as part of its evaluation. Its Web site calls the system “Nuvo Fat Loss.” The proprietor is Arthur Tourovets, D.C.

In 2014, Howard Werfel, D.C., a New Jersey chiropractor who had licensed the NutriMost system for his office, began offering a similar program through outlets in several states under the name “40 Day Reset.” NutriMost LLC responded with a lawsuit accusing Werfel of trademark infringement, unfair competition, and several other wrongs. ZYTO Technologies was also named as a defendant [21]. An attachment to the complaint indicates that NutriMost’s licensing fee was an initial $24,999 (with a 10% discount for full advance payment) plus a monthly licensing fee of $599 [22].

In December 2015, NutriMost LLC sued Healthy Living Nutrition, Inc., for using NutriMost’s basic video and some of its promotional words on the Web site cantlosediet.com [23].

Since 2014, Ray Omid, D.C. of Jericho, New York, has offered the “LightenUp Ultimate Fat Loss System” with claims and methods that sound nearly identical to those that NutriMost used in 2015.

Other Legal Actions

In 2015, Nutri/Systems, IPHC Inc., filed an opposition to trademark registration of the word NutriMost, asserting that use of the word “nutri” in association with goods or services closely related to those of Nutri/System could cause confusion resulting in damage to Nutri/System. The opposition was withdrawn when NutriMost modified the description of the services associated with its proposed mark [24].

In 2016, NutriMost sued three chiropractors and their associated clinics in Idaho, Indiana, and Michigan for breach of contract after they stopped paying fees called for in their franchise agreements [25].

NutriMost itself was sued by Patrick St. Germain, D.C., who purchased what he believed to be the exclusive right to market in portions of Florida. The suit charges that Wisniewski and NutriMost Doctors LLC improperly enabled another chiropractor to open clinics in the same region [26]. The purchase agreement included licensing fees of $50,000 up front for the first four clinics, $15,997 for each of four more offices when opened, and $5,000 per month plus 3% of the monthly sales related to weight loss at all but one of St. Germain’s facilities [27]. For at least two years, he has done business as Burn Fat Orlando with no mention of either NutriMost or Zyto on his clinic Web site. However, when I phoned on August 25, 2017, I was told that ZYTO scanning was still used.

Previous Wisniewski Promotions

Wisniewski, who graduated from Palmer Chiropractic College in 1982, has marketed himself enthuiastically throughout his career. In 1992, in a chiropractic newspaper ad, he and a colleague stated that they each had been serving more than 1,200 patients per week and that chiropractors who attended their seminars would learn “how to get and process over 50 new patients in one day with just one doctor” and “how to make in the 7-digit range with 15% overhead.” [28]

In 2008, Wisniewski’s “Nutrition Answer Man” Web site stated:

Dr. Ray Wisniewski, the Health Care Answer Man, has tirelessly and relentlessly served his community for the past 25 years. He has performed nearly one million office visits, and has seen and helped nearly every condition imaginable. This has allowed him to develop a high level of skill, experience, and competence, and has resulted in the office becoming one of the largest Chiropractic offices in the country. . . .

Over the past 25 years, Dr. Ray has repeatedly challenged himself to improve his art and skills by taking and presening seminars. He passionately researches information so he can provide his staff and patients with the most current and accurate health methods available. He constantly upgrades his office to utlize the most advanced state-of-the-art technological equipment for optimum results. His staff is educated, caring and the most capable assistance in the health field. . . .

He is considered one of the top nutritional consultants and alternative healers in the country, and is certified in QRA (Quantum Reflex Analysis), which has been called the medicine of the 21st century [29]

Quantum Reflex Analysis is an applied kinesiology variant whose proponents claim that “imbalances” throughout the body can be diagnosed by testing muscle strength and corrected by ingesting dietary supplements needed to “restore balance.” [30]

Wisniewski’s Nutrition Answer Man Web site, which also described him as “One of America’s Premier Doctors,” contained many statements that I believe were absurd:

Lowering cholesterol naturally, the NutriMost way, is one of the easiest things to do. Especially when we consider that when it is done artificially with medication it can increase your chance of dying.

For high blood pressure: “Medications are dangerous and do not correct the problem—they merely cover it up. . . . The most effective way to begin healing any condition is to first correct any interferences of the nervous system [with specific spinal adjustments]”

If you want to be healthy, do our 6 Essentials of Health: (1) balance the pH (using a NutriMost product), (2) detoxify your body, (3) balance all hormones & nutrients in the body as well as water and oxygen, (4) restore and rejuvenate homeostatis of all body systems, (5) eliminate chronic infections, and (6) most important—balance the nervous system!!

“Another thing that you can do to assure your best health would be to utilize the Superfood Trio every single day. This assures that you have every single vitamin, mineral, nutrient, trace element, synergist, co-factors, active transporters, and essential fatty acids that you require. This is the ultimate insurance, and it is all grade 10, free of any excipients or toxic tag-along’s. This is best of the best nutrition.”

Ascorbic acid is not vitamin C [31].

From 2008 through 2011, Wisniewski’s NutriMost site stated:

As your Healthcare Professional, we use the most advanced testing to specifically determine your precise supplement and nutrient needs based upon your unique biochemistry. This now makes Nutrition & Wellness, evidence based. As you will see below, these invaluable tests can give a precise evaluation of your body to help unlock the solution to your health issues, allowing you to reach a level of health that you may not have experienced in a very long time [32].

The site also offered “vitamins customized for you” via a “Home Vitamin Analysis Test,” the details of which were not posted on the site. [33]

From 2011 through 2014, Wisniewski’s EZ PracticeGrowth.com Web site offered an “Automatic Robotic New Patient Income Generating Machine” that was promised to “bring in New Patients and sell products over the Internet all on autopilot.” The system, which cost $3,800, contained videos, PowerPoint presentations. a patient communication system, a media distribution system, an “explosive” practice-building course, a service that answered patients’ questions, the chiropractor’s own store and Web site, and turnkey programs for diabetes, lupus, scleroderma, myasthenia gravis, multiple sclerosis, candida, biotoxins, lymes disease [sic], auto-immune conditions and weight loss [34].

Wisniewski no longer promotes any of the above systems and the Web sites associated with them are no longer online.

The Bottom Line

Diets that are very low in calories are not much different from total starvation and are dangerous. The FTC has determined that the claim that a product “safely enables consumers to lose more than 3 pounds a week for more than 4 weeks” cannot be true because that rate of loss can result in gallstones and other health complications [35]. Limiting calories to 500 to 800 per day can cause people to lose about 3 pounds of fat per week if they can actually do it, but NutriMost claimed that more than twice this rate was possible.

It is clear that the ZYTO device, the weight-loss formulas, the dietary strategies, and the NutriMost Ultimate Fat Loss System as a whole could not work as advertised. In 2017, NutriMost redesigned its approach along more standard lines, raised the caloric content of its diet program, abandoned use of the ZYTO device, advised clinic operators to stop using abusive contracts, and promised the FTC that any future weight loss and health claims would be supported with competent and reliable scientific evidence.

NutriMost’s current program begins with an analysis called “NutriMost Intelligence,” in which the client receives diet and supplement recommendations based on the answers to questions in an iPad app. A NutriMost official told me that the company plans to conduct an appropriate study of its revised program, but I do not know the details of the program or the proposed study. Whether NutriMost can demonstrate that its program is effective and worth its high cost remains to be seen.

Despite the FTC action, some clinics run by former NutriMost providers still appear to be using programs based on ZYTO testing. If you would like to share your experience with NutriMost or with other weight-loss clinics that still use ZYTO testing, please e-mail me a brief summary of what happened and include your phone number.

References