On 6 December 2001, a lawyer for Photolysis HR sent me a letter threatening legal action for making comments critical of certain promotional claims on their website.
December 6, 2001
BY LETTER AND EMAIL
Ms. Andrea James
P.O. Box 13217
Chicago , IL 60613
PERSONAL AND CONFIDENTIAL
NOT FOR PUBLICATION
Re: Our File: IRA 9.0-001
Charge of Defamation, Slander and Libel
Dear Ms. James:
We are counsel to Institute Research Associates, A Medical Group, Inc., and the Institute of Laser Medicine. This correspondence relates to information present on www.hairfacts.com (hereafter “your web site” or “your web pages”), which has just come to our client’s attention. None of the content of this communication should be construed to limit any of the rights of my client to pursue any and all legal remedies for any damages directly or indirectly caused by your improper actions, including Attorney’s fees, compensatory damages, punitive damages, and Court costs. This communication constitutes notice of the improper and illegal content of your web site, and your failure to act immediately to remedy the defects discussed below shall be considered to be evidence of your negligence and intent to harm my client’s interests.
On the web pages present on your web site you have made false, incorrect, and inaccurate statements regarding the Institute of Laser Medicine, PHOTOLYSIS HR®, and Edward Tobinick, M.D.. These false, inaccurate, and misleading statements have caused damage to the professional reputation of my clients, and the continued presence of these statements on your web site will produce further damages. Additionally, these false, inaccurate, and misleading statements have damaged the medical practices of my clients, and their continued presence on your web site will produce further damages.
On your web site you have acknowledged that your web site has “authoritative tone”. This is correct, and makes the false and misleading statements present on your web site even more damaging. Additionally, you have acknowledged that your web site is linked to other more authoritative web sites.
Your mistakes, enumerated elsewhere in this communication, are not excused by your acknowledgment on your web site that: “It contains opinions, sweeping generalizations, and at least one mistake. The author is not a medical doctor, and makes no claim or warranty as to the suitability of the information in this document for application to any particular individual. You, the reader, take sole responsibility for interpretation and application of this information.” In fact, the foregoing constitutes an admission on your part that your web site has mistakes.
You are aware of and have listed four (4) of the United States Patents that have been awarded to Dr. Tobinick in the laser hair removal field. These patents grant Dr. Tobinick the exclusive right to use these patented and unique methods to treat patients, which he has licensed exclusively to the Institute of Laser Medicine. In view of this it is clear that statements that you refer to as “hype” such as “available exclusively at the Institute of Laser Medicine” and “There is not a comparable facility anywhere else in the world” are in fact completely accurate. Thus, your characterization of these and other statements of my clients as “hype” (hyperbole), is false, inaccurate, misleading, and damaging. Further, you have investigated these patents and you therefore are aware of their content which is contrary to the false statements you have made on your web site. Thus, your statements are intentionally false and malicious, and must be removed immediately.
Additionally your web pages include quotations attributed to my client’s web sites which are not currently present on the web sites. Some of these statements were taken from old material, written in 1997, which was long ago updated. Please review the current web sites of my clients and correct these many mistakes.
Your characterization of Dr. Tobinick as a physician/salesman is also false, inaccurate, misleading, and damaging to his reputation and the reputation of his medical practices. Dr. Tobinick is a Professor of Medicine, a physician who has won praise and award for his medical teaching. He is a respected and well known co-author of a highly regarded medical textbook; a medical researcher; a Fellow of the American Academy of Dermatology, a Fellow of the American Society for Laser Medicine and Surgery, and is Board-Certified in two different specialties. Since this information is available on my client’s web sites and through other readily accessible public sources, you must have been aware of my client’s true qualifications. Therefore, your characterization of my client is intentionally false and malicious, and must be removed immediately.
PHOTOLYSIS HR is a registered trademark which refers to the patented and unique methods and techniques used by the Institute of Laser Medicine for laser and pulsed light removal of unwanted hair. The patented and unique techniques of PHOTOLYSIS HR do indeed offer unparalleled clinical advantages. Institute Research Associates, A Medical Group, Inc., stands behind each and every statement made on the web sites of the Institute of Laser Medicine. These statements are true and correct, and there is absolutely no basis for your false assertion that these statements constitute “hype.” In view of your knowledge of the four (4) patents granted covering the PHOTOLYSIS HR techniques, your characterization of PHOTOLYSIS HR is intentionally false and malicious and must be removed immediately.
The statements on your web site are not correct, are not substantiated, and you have no qualifications for making such assertions. You are not a medical doctor, and you have no training in our client’s patented laser techniques. There is no evidence that you are trained in optics, or thermodynamics, or laser physics. The Institute of Laser Medicine has an unmatched record of safety, and has conducted over 30,000 laser treatments. Thus, you have no medical or scientific training to support your false assertions and your false unsubstantiated accusations of “hype.”
In view of the above, we must demand the immediate removal of all false, incorrect and misleading statements regarding methods covered by PHOTOLYSIS HR, Institute of Laser Medicine, Dr. Tobinick, and all other associated entities that are present on your web site, www.hairfacts.com, or any other web pages which you have authored or control. We also demand immediate acknowledgment that you have complied with this demand, including the date and time when this was accomplished.
Further, we note that you are generating revenue from your web site, and you are illegally damaging my client’s business and reputation to generate such revenues. Thus, your motives and practices are questionable at best.
Lastly, in order to reach a satisfactory settlement without litigation, the following information will be necessary:
The date when this information was placed on your web site;
The number of visitors whom you estimate have viewed this information, and your method for calculating same;
Your professional qualifications in science or medicine, if any;
Your affiliation with any medical or electrolysis practice which is in competition with the Institute of Laser Medicine;
Dates of your visits to the Institute of Laser Medicine, if any;
Your source of reliable medical information concerning the Institute of Laser Medicine, if any;
Your willingness to issue a retraction regarding the false information on your web site; and,
Your willingness or unwillingness to enter into settlement discussions regarding your ability to compensate the Institute of Laser Medicine for the above damages and legal fees incurred as a result of your illegal actions.
Failure to promptly reply to this communication will leave my clients with no alternative other than to file suit in Federal Court for injunctive relief to remove the web site, compensatory damages, punitive damages, attorney’s fees, and Court costs. The lawsuit will include claims for intentional and malicious defamation, disparagement, slander, slander per se, and libel per se, among other claims.
Below is my response:
December 10, 2001
Mr. Ezra Sutton
Ezra Sutton, P.A.
900 Route 9
Woodbridge, NJ 07095
VIA CERTIFIED MAIL
I am in receipt of your letter dated December 6, 2001. In it, you take issue with certain statements on my website hairfacts.com about your client Institute Research Associates, A Medical Group, Inc./Institute of Laser Medicine (hereafter ILM). You characterize some of my statements as “improper and illegal,” as well as as “false,” “incorrect,” “inaccurate,” “misleading,” “damaging,” “intentionally false,” “malicious,” “not correct,” and “not substantiated,” among other things. You also threaten me with a SLAPP suit unless I meet several demands.
I strive to present factual data on hairfacts. I will address complaints specified in your letter in the order presented. If after reading my response, you feel I failed to address a specific complaint, please provide a list of any statements which you feel match your characterizations listed above. Please accompany each disputed statement with your corrections, and I will address them as warranted.
ILM makes numerous claims which I characterize as “hype” and which legally constitute puffery, or exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely. It’s not illegal to make these kinds of overblown claims. Puffery that ILM is the “finest facility” offering “unparalleled quality” can’t really be challenged legally. However, claims such as “overwhelming first choice” and “there is not a comparable facility anywhere else in the world” might require substantiation if challenged. I would like to see the data that substantiates claims that Photolysis HR® offers “unparalleled clinical advantages” and that “the skin itself is unaffected.” I suspect these last two move beyond puffery into actionable claims.
Obviously, Dr. Tobinick is a physician and a salesman as I state. He has an M.D. and is clearly involved in the promotion and sale of treatment with his trademarked Photolysis HR® procedure. I’m certain Dr. Tobinick receives considerable revenue from Photolysis HR® treatments sold by himself and employees of ILM.
Although the trademarked Photolysis HR® procedure is indeed “available exclusively at the Institute of Laser Medicine,” multiple-pulse hair removal using light is widely available. As mentioned previously, I am not aware of any comparative published clinical data demonstrating Photolysis HR® has greater safety or efficacy over other methods of multiple-pulsed hair removal using light.
The only ILM quotation appearing on my site that sems to have been removed from the ILM site is that Photolysis HR® has the “ability to treat hair of all colors.” This false and misleading statement appeared on the ILM site at the time I wrote my analysis in October 2001. I will note on my site that this fraudulent claim was removed from the ILM site in November 2001. I will also note that ILM has removed the comparison chart in which it appeared and has replaced the original contents of that page with other promotional material.
Although I am under no obligation to do so, I am voluntarily answering your list of nine questions. The information was placed on my web site in October 2001 in response to a reader inquiry. At the time of this writing, the number of visitors to my ILM analysis page was 666, based on the counter on that page. I have no financial connection with any medical or electrolysis practice which is in competition with ILM. My expert qualifications are in the field of advertising, and I have limited my comments to ILM’s advertising practices. In light of your threats, I will be adding further comments on ILM’s promotional claims of efficacy and use of misleading “before and after” photos. I have not visited ILM. My sources of information are the claims made on ILM promotional websites. I am willing to issue a retraction if warranted, and I am willing to settle any dispute in court if necessary.
Since I have answered your nine questions, I’ve made a list of four questions I would like ILM to supply me or add to their promotional site, so consumers are less likely to be misled:
1. The manufacturer(s) and model(s) of the IPL hair removal device(s) used by ILM
2. The manufacturer(s) and model(s) of the laser hair removal device(s) used by ILM
3. Published clinical data substantiating that Photolysis HR® is safer and more effective than other types of multiple-pulse light-based hair removal treatments.
4. Specific data omitted from misleading labeling on “before and after” photos:
- Patient sex, age, Fitzpatrick skin type, hair color in area treated, device make and model used, fluence(s) used
- Name of practitioner who performed treatment
- Date of first treatment, final treatment, and total number of treatments.
- Amount of permanent hair reduction one year after final treatment: client estimate and physician estimate
- Photo of treated area one year after final treatment
- Statement whether results shown in each photo is typical
I hope I have responded to all of your concerns, and I look forward to ILM’s response to my four questions.