Herbalife - Weight Loss Shake Program

Herbalife International is an American multi-level marketing company that develops, markets and sells nutrition, weight management and skin-care products globally. The company was founded in 1980, and it employs around 7,400 people worldwide. Herbalife reported net sales of US$3.825 billion in 2014, a 21% decrease over 2013, and net income of $477.19 million, a 16% increase over 2011. It incorporated in the Cayman Islands, and its corporate headquarters is in Cayman Islands.

The company distributes its products in 91 countries (as of November 2013) through a network of approximately 3.2 million independent distributors, some of whom earn profit on product sales and additional commission from a multi-level marketing (MLM) compensation structure.

The company has been criticized by, among others, hedge fund manager Bill Ackman of Pershing Square Capital, who claimed that Herbalife operates a "sophisticated pyramid scheme" after taking a $1-billion short position in Herbalife stock. The company denies the allegations. As of March 2014, Herbalife has been under investigation by the U.S. Federal Trade Commission. Federal prosecutors are investigating whether contractors Pershing Square hired to push their case made false statements to regulators.

History

In February 1980, Mark Hughes began selling the original Herbalife weight management product from the trunk of his car. Hughes often stated that the genesis of his product and program stemmed from the weight loss concerns of his mother Joanne, whose premature death he attributed to an eating disorder and an unhealthy approach to weight loss (though, according to an article from Los Angeles Times, this depiction of the story is not accurate ). His stated goal was to change the nutritional habits of the world.

His first product was a protein shake designed to help people manage their weight. He structured his company using a direct-selling, multi-level marketing model.

In 1985, the California Attorney General sued the company for making inflated claims about the efficacy of its products. The company settled the suit for $850,000 without admitting wrongdoing. In 1986, Herbalife became a publicly traded company on the NASDAQ, and in 1996 Herbalife reached US$1 billion in annual sales.

Mark Hughes died at age 44 on May 20, 2000. The Los Angeles County Coroner autopsy results ruled that the entrepreneur had died of an accidental overdose of alcohol and doxepin, an anti-depressant. The company continued to grow after his death and in 2002 was acquired for US$685 million by J.H. Whitney & Company and Golden Gate Capital, which took the company private again.

In April 2003, Michael O. Johnson joined Herbalife as CEO following a 17-year career with The Walt Disney Company, most recently as president of Walt Disney International. On December 16, 2004, the company had an initial public offering on the NYSE of 14,500,000 common shares at $14 per share. 2004 net sales were reported as $1.3 billion.

On April 9, 2013, the company's long-time auditor, KPMG, resigned after the KPMG executive who oversaw Herbalife audits admitted to providing insider information to a golfing friend about at least five companies, including Herbalife and Skechers. The company hired PricewaterhouseCoopers as its auditor on May 21, 2013.

On May 7, 2014, the company announced that it entered into a deal with Bank of America Merrill Lynch to repurchase $266 million of its stock.

Products

Herbalife's products include protein shakes; protein snacks; nutrition, energy and fitness supplements; and personal care products. The Formula 1 protein shake, a soy-based meal-replacement shake, is the company's number one product and was one of the first products it sold. Other products include products for heart health, digestive health, skin care, and the new 24 sports line released in 2011. Some products are vegetarian, kosher, allergen free or halal, and Herbalife provides testimonials and advice from health professionals as part of their product marketing.

According to the 2009 Form 10-K, many of Herbalife's weight management, nutritional and personal care products are manufactured by third-party manufacturing companies, with the exception of products distributed in and sourced from China, where they have their own manufacturing facility, and several products are produced in its manufacturing facility in Lake Forest, California (renovated in 2011). Herbalife is modifying its recently acquired manufacturing facility in order to increase capability and capacity; after completion of these modifications, it expects to increase self manufacturing. In June 2013, Herbalife announced the opening of a plant in Winston-Salem, North Carolina, in a facility previously occupied by Dell; the facility was expected to open in 2014 and employ 500 people.

In October 2010, Herbalife held a groundbreaking ceremony in Changsha, Hunan Province, China, for a botanical extraction facility for its inner and outer nutrition products. The new facility opened in early 2013. It purchases botanicals directly from farms in Hunan province, China, and other regions; performs extraction and other conversion processes; and then sends the processed raw materials directly to Herbalife's manufacturing facilities in Suzhou, China, and Lake Forest, California, or to its third-party manufacturers throughout the world. The new extraction plant produces botanical extracts, including teas, guarana, chamomile, broccoli and bilberry, for use in many of the company's products.

The specialists of the German Society for Nutrition (German: de:Deutsche Gesellschaft für Ernährung) concluded that the use of Herbalife products alone does not solve weight problems. In independent studies made by the German magazine Konsument (Zeitschrift Ökotest 11/2003), the products of Herbalife were found to be among the most expensive "healthy eating" products.

Adverse effects

Some of the original Herbalife weight loss products contained the active ingredient Ma Huang or Sida cordifolia, two herbs containing ephedra, an appetite suppressant. Herbalife stopped using ephedrine in its products in 2002 after several U.S. states banned supplements containing botanical sources of ephedrine alkaloids. The U.S. Food and Drug Administration banned supplements containing ephedra in 2004.

Barry Minkow

In May 2008, the now-defunct Fraud Discovery Institute, which claimed to be a consumer watchdog organization, reported that laboratory test results of Herbalife products showed lead levels in excess of limits established by law in California under Proposition 65. The Fraud Discovery Institute was founded by Barry Minkow. Herbalife responded by stating its products met federal FDA requirements and claimed that they had commissioned independent laboratory tests showing that the products did not exceed Proposition 65 limits. According to court documents, Herbalife settled with Minkow and paid him US$300,000. In August 2008, Minkow retracted all accusations against Herbalife and removed any mention of the company from his web site.

On May 10, 2008, a suit was filed on behalf of a woman who developed lead-related liver complaints that she claimed were a reaction to a combination of Herbalife products. The suit was filed by lawyer Christopher Grell, cofounder of the Dietary Supplement Safety Committee and an ally of Barry Minkow. On June 17, 2008, the suit was expanded to add distributors who had supplied the woman with the Herbalife products, with Grell launching a website to offer persons who believe they were harmed by Herbalife products the chance of redress.

Herbalife and liver disease inquiries

In 2004, Israel's Health Minister began an investigation into Herbalife's products after four persons using Herbalife's products were found to have liver problems.

Herbalife was accused of selling products containing toxic ingredients such as Qua-qua, Kompri, and Kraska. The products were sent to Bio-Medical Research Design LTD (B.R.D), to a private U.S. laboratory, and to Israel's Forensic research laboratory. A study of the cases funded by the Israeli Ministry of Health concluded that a causative relationship is suggested by the evidence, which included the temporal association between exposure to Herbalife products and the development of liver injury, the negative evaluation of other potential causes of liver injury, the normalization of liver function when Herbalife products were discontinued, and the return of liver injury symptoms in three patients who resumed using Herbalife products after recovery. Herbalife withdrew one product, which was only marketed in Israel, but not all of the Israeli patients had consumed this specific Herbalife product. Herbalife's SEC 10-Q filings state that the Israeli Ministry of Health did not establish a causal relationship between the product and liver ailments. The Israeli Ministry of Health advises individuals with compromised liver function to avoid dietary supplements. In 2009, an Israeli woman sued Herbalife International and Herbalife Israel, claiming that her liver damage resulted from the use of Herbalife products.

Scientific studies in 2007 by doctors at the University Hospital of Bern in Switzerland and the Liver Unit of the Hadassah-Hebrew University Medical Center in Israel found an association between consumption of Herbalife products and hepatitis. In response, the Spanish Ministry of Health issued an alert asking for caution in consuming Herbalife products. Herbalife stated they were cooperating fully with Spanish authorities, and after investigation, the agency determined no action was required and removed the alert.

Hospitals in Israel, Spain, Switzerland, Iceland, Argentina and the United States had reported liver damage in a number of patients, some of whom had used Herbalife products. Some patients recovered after they had stopped taking the products, while in others the disease continued, and two patients died. Several authors considered it plausible that Herbalife products were the cause of the observed liver disease. Herbalife employees claim there is no definitive proof that Herbalife products cause hepatotoxicity or other liver problems.

In January 2009, the Scientific Committee of the Spanish Agency for Food Safety and Nutrition (AESAN) reached the same conclusion. After reviewing cases implicating Herbalife products in Spain, Switzerland, Israel, Finland, France, Italy, Iceland and Portugal, the 12-member scientific panel issued a report concluding: "The analyses of these cases and information regarding their circumstances have not allowed us to establish a causal relationship" between liver anomalies and Herbalife's dietary supplements. The panel attributed the cases to metabolic changes from overzealous and unsupervised dieting. However, neither a 2005 American Association for the Study of the Liver position paper on the management of acute liver failure nor a 2013 review in the New England Journal of Medicine lists "overzealous dieting" among the recognized causes of acute liver failure.

A July 2013 peer-reviewed study published in the World Journal of Hepatology reexamined known cases of hepatoxicity that had previously been linked to consumption of Herbalife products and concluded that using "the liver specific Council for International Organizations of Medical Sciences scale, causality was probable in 1 case, unlikely and excluded in the other cases. Thus, causality levels were much lower than hitherto proposed." In a separate review published less than a year earlier, the same author described the relationship between Herbalife products and reported hepatoxicity cases as "highly probable".

Business model

Herbalife is a multi-level marketing (sometimes called MLM or network marketing) company. In addition to profits from product sales, Herbalife distributors can earn additional commissions from sales by other distributors they recruited, called their downline distributors. Supporters of MLM contend this is a fair compensation system, while critics contend that it is similar to a pyramid scheme. Critics also argue that the company does not make enough effort to curb abuses by individual distributors, though Herbalife has consistently denied such allegations. Herbalife is a member of the Direct Selling Association in most countries in which it operates.

In its filings with the U.S. Securities and Exchange Commission (SEC), company management note problems with inappropriate business practices in the past, their subsequent long-lasting effects and the need to avoid any repetition. Company management considers the number and retention of distributors a key parameter and tracks it closely in financial reports. By January of each year, sales leaders are required to requalify. In February of each year, they remove from the rank of sales leaders those individuals who did not satisfy the sales leader qualification requirements during the preceding 12 months. For the latest 12-month requalification period ending January 2011, approximately 48.9 percent of the eligible sales leaders requalified, reflecting an improvement from 43 percent in 2009. The company was cited as one of the most profitable companies in Los Angeles County.

A 2004 settlement resolved a class action suit on behalf of 8,700 former and current distributors who accused the company and distributors of "essentially running a pyramid scheme." A total of $6 million was to be paid out, with defendants not admitting guilt.

In a California class action suit (Minton v. Herbalife International, et al.) filed on February 17, 2005, the plaintiff challenged "the marketing practices of certain Herbalife International independent distributors and Herbalife International under various state laws prohibiting "endless chain schemes", insufficient disclosure in assisted marketing plans, unfair and deceptive business practices, and fraud and deceit".

In a West Virginia class action suit (Mey v. Herbalife International, Inc., et al.) filed on July 16, 2003, the plaintiffs allege that some

telemarketing practices of certain Herbalife International distributors violate the Telephone Consumer Protection Act, or TCPA, and seeks to hold Herbalife International vicariously liable for the practices of these distributors. More specifically, the plaintiffs' complaint alleges that several of Herbalife International's distributors used pre-recorded telephone messages and autodialers to contact prospective customers in violation of the TCPA's prohibition of such practices

Herbalife management insisted they have meritorious defenses in both cases and that, in the West Virginia case, any such distributor actions also went against Herbalife's own policies. Management also contends that any adverse legal outcomes Herbalife might suffer would not significantly affect their financial condition, particularly since they have already set aside an amount that they "believe represents the likely outcome of the resolution of these disputes". The case was resolved with Herbalife and its distributors paying $7 million into a fund for class members part of the suit. Herbalife International did not acknowledge wrongdoing or admit culpability for the actions of its distributors.

As of April 2008, a series of commercials featuring a large red animated fox advertising home-based business opportunities has been running on American television. The advertisements typically feature testimonials from actors playing individuals who have made sums of money between US$5,000 and US$15,000 per month as a result of participating in an undescribed business program. The advertisements direct viewers to a website that allows them to purchase a "success kit". The kit also provides no information about how the business opportunity works.

These advertisements have been found to be run by independent Herbalife distributors, as a method of recruiting new downline distributors. While it is not illegal, critics of this type of advertising prefer advertisers to be up-front about their company associations.

Pyramid scheme allegations

On December 3, 2013, a Belgian appeals court overturned a November 2011 ruling by the Commercial Court in Brussels, Belgium that Herbalife was an illegal pyramid scheme.

Herbalife responded to the original Belgium decision by stating

Herbalife believes the judgment contains factual errors and is based on misinterpretations of the law and its direct-selling sales model. Herbalife remains committed to its multi-level direct-selling sales model and is confident that, with clarifications in certain aspects of its business, there will be no doubt as to its compliance with all applicable Belgian laws.

The company filed an appeal on March 8, 2012. In response to the ruling being overturned, Herbalife said in a statement that it welcomed

the judgment by a Belgian Appeal Court that states the company's sales model is in full compliance with Belgian law. This judgment overturns a previous ruling by the lower court, in response to claims brought by Belgian consumer organization Test-Aankoop, that Herbalife was operating a pyramid scheme. Herbalife always believed that the first judgment contained factual errors and was based on misinterpretations of its direct-selling sales method, and was confident that the original judgment would be overturned on appeal.

Short sales

On May 1, 2012, a well-known short seller David Einhorn asked pointed questions about the company's business and sales models during the Q1 earnings call, setting off suspicions that Einhorn had a short position. These suspicions were proved correct in January 2013 when at an investor meeting Einhorn revealed that he had profited through a short position against the company. Einhorn said the short had been closed before the end of 2012.

On December 20, 2012, Bill Ackman (of Pershing Square Capital) presented a series of arguments outlining why his firm believed that Herbalife operates a "sophisticated pyramid scheme". Ackman has alleged after a year-long investigation that the majority of distributors lose money, that the chance of making the testimonial-implied headline income is approximately one in five thousand, and that the company materially overstates its distributors' retail sales and understates their recruiting rewards, to the point that he concludes it is a pyramid scheme.

Ackman claimed that Herbalife distributors "primarily obtain their monetary benefits from recruitment rather than the sale of goods and services to consumers." His firm estimates that, since 1980, the scheme has led to more than $3.5 billion of total net losses suffered by those at the bottom of the Herbalife chain. He said on CNBC that millions of low income people around the world, hoping to become millionaires, are being duped with this scheme, and if they knew that the probability is less than 1% of making a hundred thousand dollars, what Herbalife calls the "millionaires team", no one would sign up for it.

Herbalife responded to Ackman's 2012 presentation saying it

was a malicious attack on Herbalife's business model based largely on outdated, distorted and inaccurate information. Herbalife operates with the highest ethical and quality standards, and our management and our board are constantly reviewing our business practices and products. Herbalife also hires independent, outside experts to ensure our operations are in full compliance with laws and regulations. Herbalife is not an illegal pyramid scheme.

Herbalife also countered that Ackman based his accusations on a misunderstanding of the company's distributor base. At an investor conference in January 2012, the company released results of a Nielsen Research International survey showing 73 percent of Herbalife distributors never intended to make money by reselling the product. Instead, they wanted to buy products at a discount for personal use. To make the distinction clearer, the company announced on its June 2013 earnings call that it would begin referring to these discount buyers as "members" rather than "distributors."

According to a number of financial commentators, Ackman bet roughly $1 billion against the company; soon after remarks to the press, the price of the stock decreased such that Ackman would have made $300 million if he had closed his short position then. Ackman stated that he will donate all of his profits from the trade to charity, taking the financial incentive out of the equation. A few months after Ackman's initial comments, billionaire investor Carl Icahn refuted Ackman's comment in a very public spat on national TV. Shortly thereafter, Icahn bought shares of Herbalife Intl. As Icahn continued to buy up HLF shares, the stock price continued to show strength. By May 2013, Icahn owned 16.5% of the company. That number had declined to 6.4 by November 2013. Investor George Soros and Post Foods CEO William Stiritz also bought large shares of Herbalife. Ackman acknowledged losing $400-500 million on his short position in November 2013. By November 2014, Soros had sold 2.8 million shares, 60% of his stake, while Perry Capitol had purchased 1.6 million shares.

By December 2, 2014 stock prices had fallen nearly 50% to $42.08 from their January 8 high of $83.48. On 17 December 2014 Pershing Square Capital released a 2005 video of a Herbalife training conference in which Stephan Gratziani, a member of Herbalife's Chairman's Club sales team, was recorded telling an audience of high-level distributors "We sell people on a dream business that they can make it, yet deep down inside we know that most of them aren't going to," along with other statements that Pershing described as implying that the business model was not sustainable. According to an unnamed source speaking to the New York Post, the video had previously been subpoenaed by federal investigators. In an interview with Bloomberg, Ackman predicted that the company would experience an "implosion" in 2015 or early 2016, citing federal scrutiny and debt.

FTC investigation

Based on information from a Freedom of Information Act (FOIA) request, the New York Post reported on February 4, 2013, that HerbaLife is subject to a pending probe from the Federal Trade Commission (FTC). The FTC released 729 pages containing 192 complaints received over a 7-year period in regards to the New York Post's FOIA request. After reviewing the now-public complaints, which the FTC put on its website, Ackman told the New York Post: "I have a lot more confidence in our government's regulators than those who own the stock." The FTC stated that the wording it used in its response to the FOIA request was incorrect; the FTC could not confirm or deny an investigation into Herbalife.

In March 2014, the FTC opened an investigation into Herbalife. Consumer groups and members in Congress, from both houses, wanted a civil investigation demand by the FTC. Herbalife responded to the probe by saying it "welcomes the inquiry given the tremendous amount of misinformation in the marketplace, and will co-operate fully with the FTC. We are confident that Herbalife is in compliance with all applicable laws and regulations." The investigation process that is required for "pyramid schemes" take 12 to 18 months.

Sports sponsorships

Herbalife sponsors a number of athletes, sports teams and sporting events internationally, including:

• 2012 World Football Challenge
• Sergey Konyushok (Broke 7 Guinness Records at Strongman competitions)
• Herbalife Triathlon Los Angeles
• AYSO (the American Youth Soccer Organization)
• Los Angeles Galaxy soccer team
• IndyCar drivers Townsend Bell and E.J. Viso in the 2010 Indy 500
• Pumas from Mexico
• Club San Luis from Mexico
• Santos FC, Official Nutrition Advisor
• FC Spartak Moscow, Official Sponsor
• CA Lanús, Official Sponsor

• Virat Kohli
• Saina Nehwal
• MC Mary Kom
• Belgium national football team
• Club Maccabi Haifa, Israeli Football club
• Botafogo de Futebol e Regatas football club
• Universidad San Martín from Perú
• Velo Club LaGrange (Herbalife LaGrange Cycling Team)
• Lyngby Boldklub from Denmark
• Academica Coimbra man's professional football team
• R?za Kayaalp
• Lionel Messi
• Cristiano Ronaldo
• Hammarby IF, Swedish football club.
• 2014 Ironman 70.3 Pucón, Chile

Array

See also

• Direct selling

Array

References

External links

• Company profile by MarketWatch
• Herbalife Ltd.'s financial reports - Corporate disclosure and financial reports filed with the U.S. Securities and Exchange Commission
• Herbalife Ltd. (HLF) company's profile - Yahoo Finance

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