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What sort of copyright notice do I put on an ebook I purchased with private label rights?

Friday, May 11, 2012

Hi Jack,

I have recently purchased an ebook with private label rights and have significantly edited it.

I have looked all over the internet but I have not found a clear answer regarding claiming copyright.

I would like to put my own name (or rather the pen name I’m using) as the copyright but most people are saying that it has to be extremely edited before you can do that. Apart from that I nothing much else is said.

The main reason I have for doing it is to make people think twice before trying to sell it on ebay for example. I know that I would have little chance of prosecuting should someone actually do that. And of course if they themselves bought the same PLR as me then they can do pretty much what they want.

At least would I be allowed to add some type of copyright notice to the ebook even if it’s not my own name?

What sort of copyright notice could I put on it?

Many Thanks

Daniel

========

Dan, I’ll tell you what I’d do.  This is not legal opinion.  Just one author to another.

You’re sort of in a rock and a hard place legal-wise.  You, of course, do not have the right to sell the private label book “as is” unless you have an agreement with the author.  If you do have an agreement, then things become easy.

On the other hand, “private label” could mean it was not copyrighted properly and is in public domain and if you can make a case for this, you’re off the hook completely.

If “private label” means that you commissioned it, then the work is yours, no matter who wrote it for you.  Make sure you have the documentation that the work was commissioned and the writer has no claims.  This can be as simple as a couple of lines.

But . . . what I fear is that you “severely edited” a book copyrighted by a third party.  Whether you’ve met the test of a truly novel (new) work can sometimes take “12 men good and true” to figure out.  We do NOT want to go this way.

So here’s what I’d do — and I’m not going to say which one I’d choose because I don’t know all your circumstances.

Strategy #1:  Place his copyright notice on your book AND your copyright notice on your book.  Clearly both of you have claim to certain portions of the book.  This solves YOUR problem of someone stealing it from you.  It does NOT solve the problem that you may have “stolen” portions from the original author.  That leads to

Strategy #2:  Contact the author.  Explain that you have “severely edited his book” and believe that it qualifies as a novel work under copyright law even though it somewhat resembles his work.  Tell him you’ve no intention of getting into a pissing contest with him and would like his permission to use those portions of his book that were NOT “severely edited” and that you will give him joint copyright ownership on the new book.  To entice him to say ”yes” you might suggest that you have no idea if the new book will be a winner or not, but if sales go over 500 per year, you’ll pay him a royalty of $1/book — or something along those lines that make sense.

The problem with strategy #2 is that he might say “no” and then you are faced with publishing part of his book without his approval under ONLY your copyright or not publishing it at all.  I’m guessing which one you’d choose.

The advantage of just doing it under your name is that the onus is on him to prove you stole a significant portion of his book.  That means HE has to act first and start spending money first.  This would argue for NOT notifying him or asking his permission.  Just doing it and see what happens.  If you do it this way, set aside 10% of sales as potential royalty to settle any disputes and another 10% for potential legal fees.  Naturally, I might suggest you stay away from a title anything like his, logos anything like his and make sure the first fifty pages and not like his and NONE of the chapters headings are like this.  In other words, in the surface the book should look entirely different.  That means it won’t stand out as a knock-off.

Last advice, for what it’s worth:  find a neutral intermediary; present both books; pay them a small fee to read them and give their opinion on whether yours is novel enough to be considered derived from, but not a knock-off, of the original book.  If the answer, hopefully, is “it’s different enough,” put the letter in a file and publish under your own penname and copyright. It would be my contention that you are then operating under good faith that it’s different enough not to be plagiarism and thus copyright violation. Does that mean you won’t be sued?  No.  But at least you look like you did your best not to knock if off.

I’m sorry this puts the ball back in your court, but you have at least the options as I see them and the expenses and risks in all.

Good luck
Jack

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The SOPA and PIPA legislation is serious and is NOT your friend.

Tuesday, January 17, 2012

Members of ILC:

The SOPA and PIPA legislation is serious and is NOT your friend.

Please take a second to read about what Wikipedia says:

http://wikimediafoundation.org/wiki/English_Wikipedia_anti-SOPA_blackout

It is blacking out English Wikipedia for 24 hours starting Wednesday January 18th.

It’s bad enough that we sat quietly as the National Defense Authorization Act slipped quietly into law.

But you’re in the internet business.  SOPA and PIPA could affect your livelihood.

And as an individual it could affect your ability to gather information.

It’s worth a few seconds.

Jack Campitelli

Filed in Messages to Members | | Comments Off

New Domain Extensions – could be interesting……

Friday, January 13, 2012

ILC Members –

Keep your eyes open for new expansion of internet addresses: way beyond .com/.net/.org/.tv etc.  The expansion is imminent.  And the release may come without much warning.  http://www.semissourian.com/story/1803124.html

One, this may be a time to grab an domain name closer to your business name.  However, be sure you don’t have close completion in a .com.  For instance, if you sell vitamins and the .com is car dealer, then you might want grab a new domain address when they’re released.  Someone typing in .com without thinking is not going to find your competition and will re-type your new address when they get the car dealer.  Obviously, if the current .com is in the same space as you, then you don’t want to send sales to him because someone mistakenly types in .com instead of your new dot suffix.

Two, if you already own your .com you may want to grab the same name in a different dot something.  Hopefully the most sought after, so that someone else doesn’t play off your well-placed domain name and try to leapfrog you in search engine rankings.

Next.

There is still time to derail SOPA.  If it matters to you, and it should, write your representatives.

Next.

Based on its dominance of internet searches, the FTC and the European Commission are investigate Google, again, for skewing searches toward areas that they profit from.  One never knows what’s really behind these investigations, but you might find the competition to Googe in your business area and make sure you do a bit of search engine optimization on other search engines.

http://www.google.com/hostednews/ap/article/ALeqM5ioulqXfbF8-Fiu1xVYA_algZVNDQ?docId=f9299864491e44ca84c003fe8f8f6e05

To your continued success

Jack Campitelli, J.D.

Filed in A Little Something Extra from Jack, Messages to Members | | Comments Off

FTC on a roll . . .

Friday, January 13, 2012

The FTC (which is the junk yard dog for the FDA) recently settled a case against a Phoenix-based health products promoter that sold a Acai berry weight loss system and a colon cleanse product.  The interesting aspect of this case was that the consent decree was to stop selling the products using a “negative option” feature which they described as a small/no buy-in price and then continuing billing and auto-ships.  As many of you know, auto-ships automatically ship re-fill products weekly/monthly and show up as a recurrent bill on your credit/debit card.  And, as many of you know, this is a very nasty monster to stop if you decide you don’t want this any more.  Oftentimes requiring you to cancel your credit card to stop the billing.  The FDA is not fond of these products, so finding a way to slow the stream using a challenge to marketing strategy is clever.  Take heed.

Naturally, as ILC promotes, please be careful with any health claims — of which weight loss is a big area of inquiry.  There is nothing wrong with selling Acai berries and nothing wrong with selling the herbs etc for a “colon cleanse.”  It’s the attendant “benefit claims” that cause problems.

Next.

STILL TIME TO SAVE THE INTERNET (AS WE KNOW IT)

Congress is facing the specter of the Stop Online Privacy Act legislation when it returns from its holiday recess.  Of course, most of us are already long back at work.  But I digress.  This legislation bodes nothing good for those of us who use the internet for our livelihood.  It puts too much power in the hands of companies with vested interests that may not align with ours or the Constitution.  In my opinion it needs to be defeated soundly.  If you’re politically active, please write your Congressman/Senator.

Here’s a recent story on it:

http://techland.time.com/2012/01/09/at-the-top-of-congresss-new-year-agenda-regulate-the-net/

Filed in A Little Something Extra from Jack, Messages to Members | | Comments Off

Requirements for alternative media

Tuesday, November 29, 2011

Q: What are the requirements for disclaimers, terms of use, purchase agreements, and privacy policy on a mobile websites.

Thank you for your time and help.

Kevin R.

A: Kevin –

The FTC has claimed jurisdiction over ALL the new interfaces between the ”website”/facebook promoter and a viewer — whether commercial or not.

When using other folk’s software/interfaces/apps, such as facebook or youtube, the big guys have a privacy policy that you can probably hide behind.  So does ebay.

However . . . you are always encouraged to provide a link to your OWN privacy policy that protects YOU.  Remember, Facebook doesn’t care about protecting YOUR use, its lawyers care about protecting Facebook.  So, on the one hand the Facebook privacy policy may meet the FTC standard.  But it may not protect YOUR activities.

As for purchase agreements, again you have three choices: the unwritten one that state and federal laws and caselaw write for you; the one the big company “forces” you to use; and one tailored to fit your needs and to protect YOU.  It’s customary to use the big guys’.  However, you’re got your own brain.  If theirs will not protect you, then figure out how to insert yours.

As far as disclaimers, there is NOTHING that can protect you from your failure to disclose or disclaim within your copy.  Please learn to write copy that contains what I call “in-line” disclosures or disclaimers.  This is a big deal with the FTC.  There are tons of examples in the material you bought from ILC that will help you do this humorously — but nonetheless effectively enough to protect you.  I mean if you say in your copy that your testimonial was given by your brother in law in return for a six-pack of beer, but he actually uses the product and swears by it — in fact he swears all the time anyway, then you’ve hopefully gotten a laugh from someone and you have SO complied with all disclaimer and disclosure regs that no one would waste a second challenging you.

Filed in Alternative Media, FTC | | Comments Off

Requesting Jack’s Help

Thursday, July 29, 2010

Jack,

I got your email address from the Internet Compliance package that I bought and was wondering if you are available to spend a couple of hours reviewing the changes/additions that I have made to the form. I’ve basically kept the format you provided and added some provisions that I saw elsewhere and thought may be necessary. My website is close to launch and I wanted to make sure everything is in place by then.

Please let me know if you would be able to do that, how much it would cost and when can we start.

Best Regards,

Marie

==============================

Marie,

Here’s my dilemma about reviewing your copy and advising you.

I can do it as an “knowledgeable person” but I cannot do it as your lawyer.  I am licensed in Mississippi where I don’t suppose you live and other than that I work through other lawyers that would seriously increase your tab.

A second issue is that I can’t really “know” your business as well or better than you — therefore I’m apt to send you off in the wrong direction inadvertently.

Meaning I can’t really take responsibility for the advice I give you if it proves stupid.

Having said that, I like to help folks set up their sites well.

So, let’s start like this:

Write me a short synopsis of your web business plan: what you’re going to sell, and your anticipated audience and perhaps how you’re going to drive traffic to your site.

Then send me the docs you want me to look at.  In Word, with “tracking” on.  So you’d go to Word where you have the various agreements you downloaded, turn on tracking which is under the Tools drop down menu as “Track Changes” — you want to check “highlight changes as you type” box and then go ahead and make the changes you want to make.

If you have already made your changes, please highlight the changes some way…. Word highlighter tool, change the text color…something so that they are obvious.

Send them to me.  I’ll take a quick look.  If it’s a ten minute job or less, then it’s free.  If I can see we need a conference, I’ll have ILC support collect a fee and then we’ll do a Skype conference call or something, but I’ll have the docs in my hand and we can make changes on the fly.  If you want me to take a look at sale copy and disclaimers, then it will probably take longer.

Again, I’m NOT a substitute for a real FTC lawyer which you should probably have.  But if you can find one, I think you’d find them “expensive”.   So with the understanding that this would be a stop-gap measure until you could find and afford real counsel, we can proceed.

Regards

Jack

===============


Jack,

Thanks for your thoughts on my request for legal representation to review my forms. Even though I’m not located in your state, aren’t the Terms of Use governed by the FTC and thus would be based on federal law? I would imagine since you’re preparing the course and selling it all over the US, it would be the same thing to customize it for my website. Also, the reason why I’m saying this is because my business will not be a local business (I’m in Texas) but a social networking-type of site that would be national (and even potentially international). I would much rather retain you as my attorney, so as to maintain client-attorney confidentiality and feel comfortable with the legal advice.

Please let me know if we can proceed on these terms and I’ll pay a retainer to ILC when necessary.

Thanks
Marie
=========================

Marie –

You make a good point and technically problems that arise might be federal problems.  Unfortunately the practice of law these days is a bit more complicated.  Since your residency is in Texas, it is equally likely that problems could come at you from Texas state agencies, including the state attorney general.  I am not conversant with the nuances of law in Texas nor am I licensed to practice there.  You see, Texas is entitled to enforce federal law from Texas if it chooses and consumer litigation would undoubted arise there.

As I write in many places in ILC, a lawyer’s first job is to protect himself and I don’t want to give any judicial body in Texas the idea that I am trying to practice law there.  If you have FTC problems, you might well retain the services of an FTC lawyer that is not from Texas.  But THAT lawyer would in turn hire a Texas lawyer and work under his license.  Yes, that would mean double billing.  It’s the way it is.

So, I’ll offer two courses of action for you:

One, I will give you an informal opinion of your project and your documents at no charge.  Unless it is extensive, then I would charge but only as a knowledgeable person, not your lawyer.

Two, if you hire a local lawyer to represent you and your local lawyer hires me to be “of counsel” to his firm, then I would feel comfortable working with you on this project.  Whom you hire or what you pay for his services is of no importance to me, just so long as I am retained by a Texas lawyer.  You then have attorney-client confidentiality that embraces my opinions.

Thanks

Jack

Filed in Forms Questions, Requesting Help Directly from Jack | | Comments (1)

Question on re-writing material in the first person and selling it.

Wednesday, July 21, 2010

Hi:

I was referred to your site by The Cxxxxxx/Exxxxxx. They have included three products for me to resell including a weight loss program, an investment guide, and a book on how to combat breast cancer.

While I have no doubt the books are of worth to folks, I am instructed to rewrite the copy from a first person perspective as if I am the author. This troubles me.

Does purchasing resell rights of a work give you the right to claim authorship? Or would putting the disclaimer area notice that I am not the author but instead believe it to be of worth and am selling it under license from The Cxxxxxx/Exxxxxxx.com  be the way to go?

Best regards and thanks in advance for a swift reply,

Tim S.

——————————

Wow!  I almost don’t want to wade into this one.

First, the easy answer:  You need to find out who owns the rights to the “copy” provided to you.  If it’s Cxxxxxxx, then your purchase price (including the instructions) clearly includes the right to do anything you want with the copy.  If Cxxxxxx is NOT the copyright or licensee of the copy then you should enquire of them who is and make sure you have permission.  If Cxxxxx is a licensee rather than the owner of the copy, then if you’re the careful type, you’d ask if the license is transferable or assignable (to you, and that it is included in your purchase).

Second, the harder answer.  If you write or re-write the copy provided to you (with implied permission to do so) you’ve got to base your “first person” writing on SOMETHING.  Reading the material on the weight loss program or the investment guide is probably enough for you to base your sales letter on it — if you disclose that fact.  But you understand that it’s a “stretch” in the sense that YOU are making what I assume are “results claims” and you have no basis in fact for making those claims.  They are, at best, third hand.  Maybe 200th hand.  It’s the internet.

Third, as we look at your three “re-writes” I want you to imagine yourself in the witness stand in front of jury defending what you wrote.  “And, how, Tim, did you form this opinion in your sales copy?”  “Well, I read about the program and thought I’d sell it.”  “I understand that, Tim, but it appears that these are YOUR opinions in your sales copy.  Did you actually have these results and experiences yourself?”  “No.”  “So you when you made it appear that you DID have those results and experiences, can you see where a buyer could have been mislead?”  “Yes.”’  “So you are admitting that the person who lost money on YOUR investment advice probably is due some damages?”  At which time your lawyer will start shouting “Objection, your honor, counsel is calling for a conclusion of the witness that is solely reserved for this court and jury to make.”  Well, the jury just got the message, no matter what the judge finds.

1. Weight loss program: look, either you’ve used it successfully and can sing its praises in first person, or you haven’t.  If you haven’t, you had better be a clever copywriter because you’ve got to base your opinion on SOMETHING.  Basing your sales letter on the claims of a third person (whoever that is) is alright but you are charged with determining to your satisfaction that the person who originally made the claims actually has data for results etc.  And you should have access to some raw data as the basis of your sales letter claims.  I think you know this or you would not have written.

2.  Investment guide.  Again, you’d better have a read and know the basis of the claims or the provenance of the data. Hell, I would not make a suggestion to any living human being about how to “invest” in anything right now.  AND YET THE WORLD IS CLAMMORING FOR SUCH ADVICE.  This is a hot topic.  Just make sure if you make this seem like YOUR ideas that you know what you’re talking about.

3.  Breast cancer:  The nuclear bomb.  This is going to be tougher.  You’re not a researcher as far as I know.  You’re not a physician.  You’re not a victim of breast cancer.  If you’ve read my FDA Report, you know the danger zone you’re heading in to.  There are ways to write this that are probably ok.  The question, again, is what is the basis of YOUR claims?  Sit in front of the jury again with the spouse of the woman who just died after follow the advice in YOUR book.

So . . . I think you answered your own question.  The most conservative plan is to do your homework on all reports and write copy based on your own evaluations.  The next best would be to post the data / copy / claims as you got it from Cash Code with the disclaimer that you are a reseller. Clearly this is not as strong a sales pitch but it is true and I can sleep better at night having said this.

However, my last bit of advice is to do some due diligence on each report so you can evaluate the information for yourself.  Keep notes on why you think the information is correct and who says so and what your references (footnotes) are.  I’m talking credible research and reports by professionals.  This becomes your “journal” of how you came to make your ethical decision to re-sell someone’s product.

Now imagine yourself in front of a jury.  “And what is that book in your hand, Tim?”  “It’s a journal of how I did my research to determine that the claims in the reports were credible.”  “Your honor, at this time I would like at this time to introduce into evidence copies of Tim’s research journal.

The journal was made before he introduced the reports into commerce.”

The jury would now be VERY sympathetic that you tried to be responsible.

Last — first person copy writing is a powerful tool.  Frankly, I think it’s pushing the margins here.  Besides my ILC guide I sell other people’s books at www.AscoliBooks.com  (we have an affiliate program).  I do not write copy or press releases for other people’s stuff in “first person”.  I write them as a publisher would.  And YOU are, in effect, republishing an e-book/report.  If you’re going to do any copy writing, I’d keep within those bounds.  And if the copy Cxxxxxxxx gave you was written BY or FOR the author of the book, with permission and authorization, then that sales copy is tantamount to the author’s words.  And the claims are the author’s, not yours.  Therefore, you can present it cleverly and enticingly but disclaiming your own participation in the claims themselves.  I would probably say something like:

“This promo was approved by the author of the book.  I didn’t write it.  The claims made in it seem credible to me and that’s why I’m offering it to you.  But you folks are adults and these books may affect your finances or your health.

You owe it to yourself to check it out carefully.  If you don’t like it, that’s what refunds are for.  Yours in success, Tim.”

Jack

Disclaimer: The author is a lawyer, but not your lawyer.  While he thinks this information is correct, it’s up to you as adults to verify it to your own satisfaction and/or seek legal counsel where you live.

Filed in Marketing, Reseller / Affiliate | | Comments (1)

Domain Name Cost Savers and Strategies

Friday, July 2, 2010

A lot of non-U.S. members are joining ILC.  I’m very pleased and want to please you in turn.

It’s our family experience that domain names from “abroad” are expensive compared to a good .com from the U.S.  We still use domain names from other countries for some situations.  But, in general, we like to get them cheap.

There are a couple of MARKETING rules.

Always get a .com.  Never a .net or .org.  Or .com.uk.

Unless your local domain name registration is less than USD$10 per year, then try shopping in the U.S.

Go to www.GoDaddy.com .  It works.  And it’s cheap.  We’re an affiliate. I think we get five cents if you sign up so feel free to shop around.  The reason we tell you about them is that we own about 200 domain names and find them good and cost effective.

In addition they offer the “privacy option” that I really recommend.

Of course, if you can find the name you want in a .com.sing but not a .com from the U.S. then go for it.

We also have a rule, that the FIRST thing we do when thinking of new venture names is to buy the new name.

RULE:  NEVER EVER “CHECK TO SEE IF A NAME IS AVAILABLE” UNLESS YOU’RE STANDING BUY TO PURCHASE IT THAT INSTANT.

Domain name registrars have a nasty habit of telling you it’s available.  Then, when you check back in an hour to buy it, you’ll find it’s “taken”.  All that’s happened is that the bastards tied it up — that’s their business.  And now you may have to pay more to get it.

It’s not uncommon for us to spend $100 to tie up 10 names “on the fly” and then decide which one we want to use later.

We also tie up similar names to it’s hard for someone to compete with us based on a similar name.

We do NOT buy the .net or .com until the venture is starting to get real traction, then we tie them up, too, again to stop competition.

Jack

Filed in A Little Something Extra from Jack | | Comments Off

Question about the Terms of Use in connection with Jurisdiction

Friday, July 2, 2010

July 1, 2010

Hello Jack,

Thanks for the recent update. Also I would like to say how much I am enjoying the Internet Law Compliance materials.

I have a quick question about the Terms of Use in connection with  Jurisdiction.

I hope it wont take long to answer.

I am based in the UK and plan to sell in the US. There is a part of the Jurisdiction section that refers to “federal court”. For your convenience I have reproduced the Jurisdiction section below:-

“If any matter concerning this purchase shall be brought before a court of law, pre- or post-arbitration, Viewer, visitor, member, subscriber or customer agrees to that the sole and proper jurisdiction to be the state and city declared in the contact information of the web owner unless otherwise here specified.  PLACE FOR ADDING CITY COUNTY AND STATE.  In the event that litigation is in a federal court, the proper court shall be the closest federal court to the Seller’s address.”

In the UK we have county courts for civil claims. Could I replace the sentence

“In the event that litigation is in a federal court, the proper court shall be the closest federal court to the Seller’s address.”

with

“In the event that litigation is in a federal court, the proper court shall be the closest UK county court to the Seller’s address.”

Regards

Mike F

ANSWER:

Mike –

Thank heavens this is an easy question.   For both of us.

As the seller, YOU, in your purchase agreement, which is a contract, choose the jurisdiction where you want to handle disputes.

Clearly, you want this to be near you.  That solves 99% of all problems for sales to other countries, including the U.S.

For UK folks, you have some version of our American Arbitration Association.

I can’t remember the name, but it’s there.  I’ve helped someone there a few years ago.  You want to mandate someone use this service — NOT THE COURTS.

Arbitration is usually very fair but it costs a lot to get started — that’s good since the plaintiff is paying to file it.  Like three thousand pounds, maybe.  That’s a lot of grudge someone has to have before they’re laying down THAT kind of money.  Whereas courts are cheap to file in — which you want to avoid.

However, in case the Arbitration clause “blows a gasket” as we say, you need to name the jurisdiction near you that YOU want to make someone come to that’s easy for you.  If the plaintiff is from OUTSIDE the UK, then you probably need a court that handles “international” matters as opposed to a local court.  If you want to add another impediment, name that court in your purchase agreement and all other agreements.

Use this same “set up” in User Agreement, Privacy Policy, and Purchase Agreement.

However, merely specifying the jurisdiction where the plaintiff must litigate is a big problem solver for you.  So just add your city/county where you want litigation brought.  Again you write this so that this is a backup if some clever lawyer gets around the Arbitration provision.  99% chance that they won’t.

A simple set up like this eliminates almost all litigation because it’s just too hard.

Arbitration is expensive.

They must come to you.

If they get around Arbitration, they have to use a court near you.

End of all but the “worst luck in the world” kind of problems.

So . . . forget the phrases in the docs.  Add your own.  Look on the internet and find the name of the arbitration association you want to use and insert it.  Then add a court near YOUR locality “in the event that a court of proper jurisdiction finds that Arbitration is not appropriate in this instance”.

Last, Mike: never let trouble get anywhere near this stage.  Give them their money back asap if someone screams.  It’s the best legal advice there is.

Forget fairness and justice.  No one has enough time or money for litigation.

Regards

Jack

Filed in Arbitration, Forms Questions, NON USA Website, Terms of Use | | Comments Off

Does Hypnosis CD = Medical Equipment??

Friday, July 2, 2010

QUESTION:

Hi,

I recently purchased your ILC package. I am in the UK and am selling a hypnosis CD For giving up smoking. I am wondering if I can claim (On my website) that it is NOT medical equiptment. According to the FDA website:

“http://www.fda.gov/ICECI/ComplianceManuals/CompliancePolicyGuidanceManual/ucm073898.htm”

It is a grey area but since it is only a habit correction CD then Maybe it is not considered a medical device.

Please could I have clarification on this, as it would be easier if I could say the CD is a non-medical product, to avoid any legal problems with the FDA.

Daniel

ANSWER:

Daniel –

You did your homework well.

Here is the salient passage in the research you did:

Tape recordings labeled only for behavior modification, self-improvement, habit correction, learning techniques, and simple relaxation are not considered to be devices unless they are also labeled for medical or therapeutic use.

To MY way of thinking, and having a psychology background, I’d consider your hypnotic CD’s to be NOT covered by the regulations.

However, you have also labeled this correctly as a “grey area”.

If I were you, I would “split the difference” so to speak and refer to your product as using “(deep relaxation and hypnosis-like meditative and behavioral modification techniques” to blah blah.

I would then add an in-line disclaimer along these lines:  Using these kinds of techniques has been found for a large percentage of users to be quite successful.  But for that small portion of people for whom they don’t work, we offer our “no questions asked” refund guarantee.  You have 30 days to see if they work for you.  If it doesn’t work, just send it back to us and we’ll credit your card immediately (less shipping and handling charges).

You’re the marketer so I’ll let you handle the words you use but here is where you want to go: 1) the claims YOU make on your website or internet marketing are different from what’s on the product labeling.  You will be judged by the claims you make to the public.  2) the only way the FDA is most likely going to get involved is if someone files a claim against you.

And the ONLY reason someone complains is if you don’t give a prompt refund.

Build your business model around the possibility of a 10% return rate.  Make your return policy demand return of the product.  So EASY refund policy. HARD compliance policy.  3)  I would write your copy using the word hypnosis as little as you can.  I would always refer to it as hypnosis-like.  But, in general, you can describe all the characteristics of hypnosis while not using the word.

In reality, there are various levels of hypnosis.  I, for instance, can’t get to any deep hypnotic level.  But I can get to a very relaxed level where I am more susceptible to suggestion that does seem to affect behavior.

My reading of the “regulation” — which may or may not be found to be legal if ultimately challenged (which you don’t want to do) — is that they are referring to the clinical definition of hypnosis.  This is actually a much harder state to achieve that is commonly believed.  But there are sub-hypnotic states that are quite effective in modifying behavior.

Again, your copy writing skills (and refund policy) are what are going to save you.

Good luck.  Feel free to write again if you have questions.

As always I must suggest that you consult an FDA-specific attorney for advice about your specific situation and you must consider my comments only my best guess on how you should proceed and no attorney-client relationship has been formed.  (This is MY disclaimer!) :-)

Jack Campitelli

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