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Herbalife

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Herbalife International is an American multinational multi-level marketing corporation that develops, markets and sells nutrition supplements, weight management, sports nutrition and personal-care products. The company was founded by entrepreneur Mark Hughes in 1980, and it employs around 7,800 people worldwide. Herbalife reported net sales of US$3.825 billion in 2014, a twenty-one percent decrease over 2013, and net income of $308.7 million. It incorporated in the Cayman Islands, and its corporate headquarters are there.

The company operates internationally and distributes its products in 95 countries (as of July 2015) through a network of approximately 3.2 million independent distributors, a few of whom earn profit on product sales and additional commission from a multi-level marketing (MLM) compensation structure. The MLM compensation structure consists of commissions, royalties and bonuses on sales done by a distributor's downline (the people they have sponsored as new recruits). Out of about 526,000 total members in the US at the beginning of 2014, about 62,000 received bonuses of a few kind from Herbalife: 7,385 (1.4%) received over $5,000 in bonuses per year (this translates to an average of $417 per month) and 1,304 (0.25%) received over $50,000 ($4,167 per month average). These figures don't include income from product sales nor do they include any costs incurred by distributors.

The company has been criticised 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. Notwithstanding in March 2014, Herbalife came under investigation by the U.S. Federal Trade Commission. In July 2016, Herbalife agreed to pay $200 million in a settlement with the FTC.

 

 

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 programme 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 storey isn't 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.

The company announced in November 2016 that Chief Operating Officer Richard Goudis would take over the position of CEO in June 2017 and Johnson would transition to executive chairman.

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, a large number of 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.:16 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 additional regions; performs extraction and additional 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 a large number of of the company's products.

The specialists of the German Society for Nutrition concluded that the use of Herbalife products alone doesn't 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

Ephedrine

Some of the original Herbalife weight loss products included herbs containing ephedrine, Ephedra sinica (ma huang) and Sida cordifolia. Ephedrine suppresses appetite; it is closely related to pseudoephedrine, and, like the latter compound, it acts as a nasal decongestant and can increase the heart rate. Plant sources of ephedrine were removed from Herbalife products in 2002 after several U.S. states banned supplements containing such herbs.:15 The U.S. Food and Drug Administration banned supplements containing ephedrine in 2004.

Allegations of lead contamination

In May 2008, an organisation known as the Fraud Discovery Institute 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; it dissolved in 2011 after Minkow pleaded guilty to an insider trading charge not related to Herbalife.

Multiple independent labs reported finding lead in Herbalife products. Herbalife responded by stating its products met federal FDA requirements and claimed that they had commissioned independent laboratory tests showing that the products didn't 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 solicitor 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 additional potential causes of liver injury, the normalisation 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 didn't 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, a few 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 “certain” that Herbalife products were the cause of the observed liver disease because of a positive re-challenge, while most of the remaining cases were scored as “probable.” Herbalife employees claim there's no definitive proof that Herbalife products cause hepatotoxicity or additional 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 haven't 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. Notwithstanding 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 recognised 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 additional 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 additional 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 additionally argue that the company doesn't 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 practises 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, individuals who didn't satisfy the sales leader qualification requirements throughout the preceding 12 months are removed from that rank. For the latest 12-month requalification period ending January 2011, approximately 48.9 percent of the eligible sales leaders requalified, 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 practises 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 practises of certain Herbalife International distributors violate the Telephone Consumer Protection Act, or TCPA, and seeks to hold Herbalife International vicariously liable for the practises 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 defences in both cases and that, in the West Virginia case, any such distributor actions additionally went against Herbalife's own policies. Management additionally contends that any adverse legal outcomes Herbalife might suffer wouldn't significantly affect their financial condition, particularly after 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.:42 Herbalife International didn't 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 additionally 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 isn't illegal, critics of this type of advertising prefer advertisers to be up-front about their company associations.

Herbalife Nutrition Clubs

While there are a large number of ways to do the Herbalife business, earlier methods have fallen out of favour over time (i.e. direct mail and internet “lead generation"). One of the most popular current ways of doing the business is through what's called a "Nutrition Club." These clubs are usually storefront shops in densely populated areas, often predominantly Latino.

Some Herbalife distributors complain they have no way of knowing if additional clubs are already open in the area. One of the reasons for this is that Herbalife Nutrition Clubs can be hard to find, after the company doesn’t allow the shop owner/manager to advertise, to have awnings, to have any visible interior, to have an open / closed sign, to have a public facing website, or indicate in any additional way that they're a business. They additionally can't use the word “Herbalife” or "shop" on the club's exterior.

Furthermore, distributors are disallowed from selling the products directly at the club; instead they're to sell a daily "membership" that entitles the customer to a shake, a cup of aloe water, and a tea in a styrofoam cup. A daily "member" typically pays $5 to $7 in cash for the membership. Herbalife rules additionally dictate that no one can leave the club with these products; they must be consumed in the club.

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

Allegations of running a 'pyramid scheme'

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.

According to Reuters:

The sales method, under which a few people get more money for recruiting new distributors than selling products, has attracted criticism.

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, after 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 one percent 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 practises and products. Herbalife additionally hires independent, outside experts to ensure our operations are in full compliance with laws and regulations. Herbalife isn't an illegal pyramid scheme."

Herbalife additionally countered that Ackman based his accusations on a misunderstanding of the company's distributor base. At an investor conference in January 2013, 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'll 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 quite 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 additionally 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, sixty percent of his stake, while Perry Capital had purchased 1.6 million shares.

By December 2, 2014 stock prices had fallen nearly fifty percent 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 additional statements that Pershing described as implying that the business model wasn't 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 was 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 couldn't confirm or deny an investigation into Herbalife.

In March 2014, the FTC opened an investigation into Herbalife in response to calls from consumer groups and members in both houses of Congress. 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's required for alleged pyramid schemes takes 12 to 18 months. In cases like the Herbalife investigation, the FTC often seeks to impose changes to a company’s practises -- known as injunctive relief -- in order to stop misconduct that it sees as harming consumers. In May 2016 a spokesperson from the FTC told Bloomberg that “Injunctive relief can be just as significant as the money obtained for consumers and even more influential on a company’s future operations”, in response to speculation that Herbalife was close to a resolution with the FTC.

In July 2016, Herbalife agreed to pay $200 million in a settlement with the FTC.

Sports sponsorships

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

 

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