Should BioPerformance be Held in Contempt of the Consent Order?
BioPerformance, Inc. entered into a consent agreement with the Attorney General of Texas. The consent order can be read here
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As part of the consent order, BioPerformance is ordered not to make any representations, implicitly or explicitly, that BioPerformance reduce fuel consumption.
At the BioPerformance website, there is a report from a Wallace Lab about BioPerformance's product, in which it is claimed that "reasonable degree of confidence that the product causes a real improvement".
Over at Quatloos, Fuel Saving observes the following:
"Basically I challenged the BP people to release the full Wallace Labs test report and so clarify whether the "genuine improvement in fuel consumption" was 1-2% (ie the product really is effectively useless) or something much more (ie BP were right all along). [You can guess what my expectation is.] Doc FOG basically made two comments:1) In his view, the testimonials (uncontrolled on-road measurements) are all that count. If the testimonials say it works and the scientific tests say it doesn't, then science must be wrong. Hence he believes the AG is just "out to get them". I did attempt to explain about placebo effects, double-blind trials, etc, but he either can't or won't take the point
2) (This is the bit that really gets me). He claimed that they would like to release the full Wallace Labs test, but cannot because they would then be prosecuted for breaking the rules of the Court judgement (making claims without scientific substantiation). He says they have been told they would need to test 50 vehicles before releasing test data. To me this seems like total nonsense, but I can't actually prove it. Maybe somebody based in the US would like to contact the AG and check if this is true?
What is so annoying is that they can keep hiding behind the "genuine improvement in fuel consumption" on the Wallace Labs test and say that this proves they were right, and the AG was wrong. Without the actual figure, and while they keep insisting it is the AG that stops them releasing the figure, we skeptics are struggling for a response to that. Ideas are welcome!"
A similar complaint is made at www.scamdex.com.com, in which a poster complains:
"If your Independent Testing was so positive....Very HappyQuote:
Using the EPA's criteria for the evaluation of fuel additives, the FTP and HFET tests conducted by this laboratory provide a reasonable degree of confidence that the product causes a real improvement in fuel economy and reduction in emissions. The emissions tested were Hydrocarbons (HC) which showed an average reduction of 5.387%, Carbon Monoxide (CO) which showed an average reduction of 7.315%, and Nitrous Oxide (NOx) which showed an average reduction of 3.513%.
... then why are you keeping the full report secret Embarassed Question
Ok, so it reduces emissions by a couple of percentage points - but why not trumpet the 'real improvement' in fuel economy? - is it 40%, 20%, 5% - 0.001% Question."
BP's lawyers seem to counter this by claiming:
"The bottom line is that actual testing, per rigid protocols for the FTP and HFET tests under the EPA's "Motor Vehicle Aftermarket Retrofit Device Evaluation Program", was performed by an independent laboratory, and those tests demonstrate "real improvement in reducing emissions and fuel savings" based on EPA criteria."
Again, note that the full words "reasonable degree of confidence" are left out. There is a reason for this.
But let us review the BP position again: "He claimed that they would like to release the full Wallace Labs test, but cannot because they would then be prosecuted for breaking the rules of the Court judgement (making claims without scientific substantiation). He says they have been told they would need to test 50 vehicles before releasing test data."
I think this is a very clever, albeit completely misleading response by BP.
Let me explain, by way of analogy. The FTC regulates the sale of franchises. To prevent eager salesman from making unrealistic earnings claims orally to prospects, the FTC requires that the earnings claims be incorporated into a written document known as the UFOC, at item 19. And all earnings claims must be confined to item 19. Problem solved, eh? No, sharp salesman have now whetted the appetites of prospects franchisees by saying that the FTC prohibits them from making earnings claims! Technically, this is true if item 19 is empty, so that no representations can be made. (The FTC has proposed in the new FTC Biz Op rule to deem this practice -saying the FTC prohibits an earnings claim- as deceitful.) Now how does that work in this case? The actual language in the Wallace Lab report posted is: "reasonable degree of confidence that the product causes a real improvement". But I cannot tell you what that reasonable confidence is based upon without making a claim that would trigger an examination of 2 B) of the order. Since the AG is prohibited actions triggering 2 B, I cannot give you the Wallace order. Of course it is all nonsense, but clever legal nonsense nonetheless. Clever in the sense that it probably won't attract a contempt finding.
I am a sucker for secrets. 
The FTC's new 
The 
The Attorney General of Texas's June email is reprinted in part, below:
This Bioformance Injunction brought by the Attorney General of Texas is being heard by Judge Andy Mireless. The Court details can be
The Attorney General of Texas has brought an 
Scott Plous, in 1993, wrote an excellent text or compilation of the then current state of the art on the Psychology of Decision making, and included a number of test exercises at the beginning of the text. The tricks of the mind that psychologists have discovered are very ably covered by Plous. There is a general agreement amongst scientists is that there are heuristic tools that we use to break down a decision problem, which generally work well. But we overuse these heuristics and make predictable mistakes. 
