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/2006/05/17/9500271_BioPerformance_TX_lawsuit/
You are here:
PureEnergySystems.com > News > May 17, 2006

TX AG Temporarily Shuts Down BioPerformance

Texas Attorney General's office filed a lawsuit and obtained a temporary restraining order and asset freeze against Texas-based BioPerformance, Inc. for allegedly running a pyramid scheme promoting a fuel economy product that they allege to be bogus.

by Sterling D. Allan
Pure Energy Systems News
Copyright © 2006


AUSTIN, TX, USA -- Texas Attorney General (TX AG) Greg Abbott today filed a lawsuit and obtained a temporary restraining order and asset freeze against Texas-based BioPerformance Inc., a multi-level marketing company that sells a pill/powder additive said to increase fuel economy.

TX AG alleges that BioPerformance Inc "is organized as an illegal pyramid scheme", and that it markets a fuel pill that "falsely claims will boost gas mileage and save consumers money."

Accordingly, the https://mybpbiz.com website has been taken offline.

Two days prior, the Better Business Bureau of Dallas updated its report on BioPerformance, citing 14 complaints, many of which have been resolved.  Overall, it gave BioPerformance an "unsatisfactory" rating "due to its failure to substantiate or modify advertising claims advertising claims." (Ref.)

The TX AG press release reported that "scientists who tested the product at the University of Texas at Austin and at a Florida university concluded that the pills are mainly naphthalene (Ref.), the chemical found in mothballs. The Attorney General’s laboratory expert actually concluded BioPerformance's product could decrease engine performance."

When the University of Central Florida tests were reported by Florida television station WESH on May 4, the manufacturer of BioPerformance responded by saying that the product contains a close analogue to Naphthalene. They said that Naphthelenate is non-toxic and also has been shown to have a positive effect on fuel economy. (Ref.)  The close chemical composition is what accounts for the similar profile in the chemical tests performed by the university comparing BioPerformance and Naphthalene, which is toxic.  A Materials Safety Data Sheet published for the product certifies it as safe (ref.), as do two independent tests done by ISO-9000-certified laboratories (ref) (ref).

Image:Naphthalene BP curves hj85.jpg
Top line chemical spectrum by University of Central Florida shows BioPerformance, compared to the lower line, which is naphthalene.
Image:Naphthalene chromatograph hj85.jpg
Chromatograph comparison was also analogous.

Naphthenate chemical signature missing in BioPerformance (WESH)

May 21 Update
Upon seeing the BioPerformance rebuttal that BP contains Naphthelenate, not Naphthalene, the University of Central Florida checked the product again, and once again concluded: Naphthalene.

The phone number on the MSDS sheet goes to a person's cell phone with a message: "If this is about BioPerformance or BioPlus, I am not affiliated with either one." (WESH; May 16, 2006)

June 1 Update (ref)
The difference between Naphthalene and Naphthenate is one carbon. In the BioPerformance product, that one carbon is associated with the enzyme that makes the product what it is in terms of its performance. At 102 degrees Fahrenheit, the enzymes begin to break down. At 116 degrees, they are inactivated.

The process used by the chemists to determine the chemical composition entails heating the product in an oven, which obviously is going to effect the enzyme. What effectively happens is that the Naphthenate-enzyme molecule is transformed into Naphthalene.

This heat factor may also explain why some customers do not see results -- the product having been deactivated in the heat found at some point in delivery, such as a hot mail truck.

The manufacturer's statement also cited numerous positive performance results reported by customers.

BioPerofrmance Inc. has also been mentioning and looking forward to an extensive study by the University of Ohio that is due out any day, which allegedly will give the product a clean bill of health in terms of its safety and its positive effects on fuel economy.  The University of Ohio report will have high credibility inasmuch as they specialize in these types of studies.  Their study has been under way for many weeks, and will be highly exhaustive and scientific.

No fuel enhancement product works the same on all vehicles or with all fuels.  There are many variables that enter the equation when fuel economy is concerned.  This has been true of BioPerformance.

Dr. Peter A. Lindemann (Ref.), who is a distributor for BioPerformance, says "At least 90% of the people who try it get positive results and more that 50% get excellent results."  That leaves around ten percent not getting positive results.  The author is one who has received marginal results.

There are a number of reasons for marginal or even negative results when they appear. (Ref.)  For example, a siphon guard in some fuel nozzles prevents BioPerformance pills from reaching the tank.  Also, the pill can get situated behind the splashguard where they are not washed into the tank by the fuel nozzle that reaches well past the splashguard.  In other cases, the O2 sensor prevents the positive economy improvements, until a work-around is installed, at which time positive results are then seen.

From their beginning in December, 2005, BioPerformance has employed a leading multi-level marketing attorney, to make sure that their company was in compliance with the law. A letter today from the BioPerformance President, Lowell Mims to the 50,000-plus distributors said, "We are right now working with our Attorneys to vigorously defend our Company."

Mims assured his dealers: "When you are successful in your industry a lot of people take shots at you.... Just like Amway, Herbalife and Mary Kay, we will come out of this challenge stronger than ever!"

The opening statement of the TX AG press release states: "The company's ads claim the gasoline pills and powders they offer have a non-toxic 'top secret gas pill' that can increase fuel efficiency by 30 percent or more and cut harmful emissions by up to 50 percent."

That is incorrect.  BioPerformance has been adamant with its dealers that the wording of their advertising should be that the product "saves up to 25% or more" on fuel usage.  The company also requires its dealers to prominently post a disclaimer in all presentations, saying that the company does not guarantee any results.

The TX AG press release also incorrectly stated one of the start-up dealership cost numbers as being $300, when it is actually $200.

However, it may be that in the area of pyramid schemes that BioPerformance will have a harder time defending itself.

According to Texas law (§ 17.461(a)(6) of the DTPA), an illegal pyramid promotional scheme is defined as: "a pyramid promotional scheme is a plan or operation by which a person gives consideration for the opportunity to receive compensation that is derived primarily from a person's introduction of other persons to participate in the plan or operation rather than from the sale of a product by a person introduced into the plan or operation."

As of the end of April, the ratio of customers to dealers in BioPerformance was 2:1.  The profit on product sales to customers is typically much less than the profit from new dealer sign-ups.  So the math is likely to be quite close on the profit from product versus the profit from new dealer sign-ups.  The amount of product required to be purchased by each dealer to stay active may be what pulls the numbers in favor of product sales, redeeming the company from this allegation.

Note: (May 19, 2006)
The purchase price for a dealership includes product, the retail value of which is nearly the same as the cost of the dealership sign-up.  So when it comes to sign-up versus product ratio, there is effectively no isolated expense for dealer sign-up.

Violations of the Texas Deceptive Trade Practices Act and the promotion of an illegal pyramid scheme can result in penalties of $20,000 per violation.

The company has been high on hype and low on science, which may make it difficult to survive this present setback.  While they have received thousands of testimonials, they only publish the positive reports.  They do not yet have a database chronicling all results in an objective manner.

BioPerformance dealer, Jacob Matian, sent an email to his downline today stating: "I have a lady named Melanie in my downline that has reported that 4 people that she gave the product to had their fuel injectors fail.  She had contacted Bioperformance and got no response about replacing the damaged parts."

The TX AG suit requests restitution by BioPerformance to consumers who have been financially harmed by the false promises of this operation.

Texas consumers who encounter a business that is making false claims or appears to be operating as a pyramid scheme may file a complaint with the Attorney General’s Consumer Protection Division at (800) 252-8011 or file a complaint online at https://www.oag.state.tx.us

# # #

REFERENCES

DISCLOSURE

  • PES Network, Inc. is a dealer for BioPerformance, and carries an independent coverage of the product at PESWiki.com

ACKNOWLEDGEMENT

IN THE NEWS


CONTACT

Texas Attorney General's Office:
(512) 463-2100

By U.S. Mail:

    Office of the Attorney General
    PO Box 12548
    Austin, TX 78711-2548

Physical Address:

    Office of the Attorney General
    300 W. 15th Street
    Austin, TX 78701

Follow-up

  • State of TX vs. BioPerformance Fuel, Inc. - Judge allows hearing to proceed despite "fatal flaws", which he declined to hear until end of the hearing. Judge lets the prosecution spend inordinate time on irrelevant matters regarding charges it dropped at the outset. (May 31, 2006)
  • Vindicated - Federal Test Procedure and Highway Fuel Economy Test protocols of the Environmental Protection Agency show that BioPerformance fuel additive increases mileage and decreases emissions, contrary to Texas Attorney General accusations that shut down the company last May. (January 23, 2007)

See also

Page composed by Sterling D. Allan May 17, 2006
Last updated November 21, 2014

 

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