This just in: Beer makes you skinny!

I was just recently diagnosed with melanoma on my left thigh...this article gets my blood boiling. I got burned many times as a kid in the sun, so to think that people actually put themselves in harms way for the sake of appearances makes me wonder where their head it at. The first thing my dermatologist asked me was my history of sun exposure/burns. Melanoma (and other skin cancers) are caused by mutated and damaged DNA in melanocyte cells, which can only be done by UVB band exposure, as it penetrates all layers of the skin. There is no other way to get UVA/UVB exposure except through the sun...or tanning beds. This company should perhaps try to think about the public health message they are sending. Oh yea, and damaged skin ages faster.

According to the American Cancer Society:

"Many people believe the UV rays of tanning beds are harmless. This is not true. Tanning lamps give out UVA and frequently UVB rays as well. Both UVA and UVB rays can cause serious long-term skin damage, and both contribute to skin cancer. Because of these dangers, many health experts advise people to avoid sunlamps and tanning beds."

Here's the email thread that went back and forth between Emily and Darque Tan.

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

From: Emily Prewett [mailto:***REMOVED--Editor***]
Sent: Wednesday, April 30, 2008 3:02 PM
To: Robbie Segler
Subject: Re: Tanning Salon False Advertising

Dear Robbie -

Thanks again for the offer, but this point, I will have to respectfully decline, as I believe my complaint has made it to the appropriate people at the appropriate agencies. I would like to clarify that I am not scared of the results; I actually take a multivitamin and calcium + D supplements on a daily basis, and I have a very healthy diet. And don't worry - my father is in the health care profession - I hear plenty from my him about taking care of my health, especially during finals. But my health is really not the issue here. (Did you win your office bet?) I just don't think this is necessary; I would rather go through appropriate, legitimate channels that have been designed to handle situations such as this.

At this point, I believe we should just agree to disagree, and leave it at that. You seem to really enjoy the debate, and I am sure we could continue having an extended philosophical discussion over email. However, I am not certain we will get anywhere, and I simply do not have the time to devote to this. I intended to send a simple complaint to your company; I was not expecting any response from you, aside from perhaps a confirmation that my complaint was received. I did not send the complaint because I wished to debate the purpose of the statute, or whether or not it was appropriate; I just wanted to point out that I thought your advertisements were bad. It seems that we differ on some fundamental points; and while I do not necessarily agree with them, you raise very interesting issues, and ones which a concerned legislature might be willing to listen to. If you can make your argument to the law makers, and get them to agree with you, perhaps they will amend the statute. Until then, the law is the law, and I believe you should abide by it.

Thanks again for responding to my concerns; I appreciate the time and thought you put in to your responses. I wish you well, and hope that you continue quickly on your recovery.

Take care,
Emily

=========================================
On Wed, Apr 30, 2008 at 2:05 PM, Robbie Segler wrote:

Dear Emily (I hope I'm not being too presumptuous in moving to a first name basis) J

Thanks for your well wishes on my knee. I appreciate the cordiality of our correspondence.

The betting around the office was that you'd duck the test.

It occurred to me that recommending a doctor in Houston probably wasn't a good idea for a law student in Austin, especially in the middle of finals. I can, however, send a phlebotomist from our Insurance company to wherever you're at, and they can do this on the spot. It wouldn't take more than a few minutes.

I was a student once and know that even the most studious need to take breaks. Five minutes is all I am asking. Forward me an address and I can have someone there within 24 hours. If I were your father, I'd caution you about neglecting your health, especially if you want to do well in your finals. J

I can appreciate that you have bigger things on your mind right now but what about your fellow Texans? The ones you took time out of your schedule for, to pen your complaint and emails to me. I believe you even met with a campus reporter.

I am offering you the chance to shut my 'offensive' advertising down. I am offering you the chance to get what you want (without resorting to the power of government), and you tell me you're too busy….too busy to help your fellow man? Where is your altruistic fervor now?

The results of this test will be first hand evidence that you are an ironic unwitting victim in this issue. Perhaps this is another truth you are unwilling to face?

As you have clearly indicated your desire to not debate the science (time constraints and all J), I'll confine myself to trying to understand how a graduating law student can be so confused as to what constitutes a violation of rights… "communications [that] infringe upon the rights of others". What does this even mean?

Communication can't infringe or violate rights. Only coercion can. I challenge you to draft any sentence that could violate my rights.

You believe these are "appropriate regulations...[because you]… don't think that people can make proper informed choices when their information is coming from improper sources".

Can you be serious? How can a self respecting soon-to-graduate law student say such a thing? What are they teaching you at UT?

Do you really think people have a right to make proper informed choices? Examine this question carefully as it is the fundamental from which all of your errors proceed.

The right to life, liberty, and proper informed choices J

It just doesn't follow. And what are "improper sources"?

Improper content I can understand, but how do you reconcile your respect for the First Amendment with "improper sources". Who, in your mind, is allowed to speak freely?

Laws and government are necessary to protect proper rights- as in the right to be left free to act on your judgment, without violating any one else's right to act on their judgment.

In this case, it means; the right for me make any claim I please (knowing that I can be sued for fraudulent claims that cause objective harm), and your right to dismiss or ignore any claim I make.

In your perverted sense of justice, it means; that I am not free to make any claim I like, but others are, based on the government's designation of who is approved to make claims. Similarly, in a dictatorship, citizens are likewise unable to make claims or speak out, and only government approved speech is allowed. Do you know the name they give to ordinary citizens who turn in other citizens for the offense of speaking out or 'making claims'?

Emily, is this the kind of justice and world-view you advocate?

The right to only hear from legislatively approved sources, is an aberration of the First Amendment. Who determines who is a proper source? In a free society it is the individual that decides who and what is proper, not the government.

The extent of your confusion with respect to rights is confounding. My only solace is that you still have a while to graduate, which is code for: you still have a lot to learn.

Forward me your address, get the test, and let's end this quickly, with dignity.

Best Regards,

Robbie

www.darquetan.com

--------------------------------------------------------------------------------

From: Emily Prewett [mailto:***REMOVED--Editor***]
Sent: Wednesday, April 30, 2008 2:52 AM

To: Robbie Segler
Subject: Re: Tanning Salon False Advertising

Dear Mr. Segler,

First off, I am very sorry to hear about your knee surgery! I hope you are well on your way to a speedy recovery, and back up and about in no time.

Thank you again for the lengthy email response. You are quite correct about the life of a law student--we spend ridiculous amounts of time reading. As I am in the midst of finals, I do not have the time to respond thoroughly to your letter or to your proposal; I will be attempting to spend every waking hour prepping for exams.

There are several points, however, that I would like to clarify in this brief email. First, my reason for not providing you the numerous studies I spoke of was merely based on a time constraint. It is not my position that the studies or the science don't matter, merely that it would be a waste of time to debate the science. I believe in the science backing my position as much as you believe in the studies that you claim back yours. Because I doubt we will agree upon this point, I did not wish to spend time debating this--I thought the focus should be on the content of your ads as related to the statute. It is absolutely not my position that the law, if unjust, should be blindly followed. Quite the contrary, actually. But I believe that the current law is appropriate, because of the studies I spoke of (World Health Organization endorsed a study, numerous others are available through non-profit cancer research foundations and dermatological associations) and for other ethical considerations which I stated in my last email. If you are opposed to the content of the statute, I am sure you will attempt to battle that out with the legislature.

Secondly, the First Amendment is fundamental, and something that we should go great lengths to protect, but when communications infringe upon the rights of others, then in my opinion it may be appropriate for the government to step in. As I said before, I do not believe that advertisements for your tanning business are an appropriate forum for health messages. Because we disagree on the risks or benefits associated with this practice, I think we will undoubtedly disagree on whether or not the communications I have taken issue with are of the type that should be regulated. Again, if you feel that this is an inappropriate regulation, and you wish to take your battle to the legislature, that is your right. I do not believe it is an inappropriate regulation.

I am not anti business, and I am not a zealot trying to keep the entire population from ever seeing the light of day. But I don't think that people can make proper informed choices when their information is coming from improper sources.

I would also like to note that I did attempt to reach you via telephone before contacting the AG and before sending you my original email. I was unable to even reach a live operator when I called the customer service number listed on your website. I attempted to call several times during normal business hours, and I left at least one message, but my calls were never returned. As your name, email address, and direct line are not listed on the website, I was unsure of how I could reach you personally. I was also unsure of whether you would even get the email that I sent to the customer service email address; I was hoping that with stronger language, the email would have a better chance of reaching to the appropriate person.

Thank you again for emailing me. As I previously mentioned, I am extremely busy with finals at the moment. If you'd like to be in further contact, I will be available after the semester is complete. Take care, and I hope you are feeling better soon -

Regards,
Emily

============================================
On Tue, Apr 29, 2008 at 11:22 AM, Robbie Segler wrote:

Dear Ms. Prewett,

My apologies for not having written back sooner- I had knee surgery last week and a little too much medication to reply sensibly J

I enjoyed reading your email and appreciate the time it must have taken you to write it. You seem quite passionate about this subject and the subject of law as it relates to tanning salons as well as business in general. I found all of it very revealing.

I do understand that nothing I write to you—my "long detailed diatribe" as you called it, will affect or alter our position with the State, so please don't think my motives so shallow. I have been battling tanning legislation since the early 1990's and my battles with the State will continue long after we stop emailing each other.

This will be an even longer 'diatribe' as I've had a few days and a lot of Vicodin to think about it. As a law student you should be used to long papers. This will be no exception as I wish to properly address some important philosophic errors I believe you have made, as exhibited by your actions and in your email to me. But if you can labor all the way through this 'diatribe', a surprise proposal awaits.

Before delving into these philosophic issues, I am happy to provide you with the context behind the airing of these commercials.

In large part, our current positioning of Vitamin D takes its lead from a battle fought recently in Canada. A very good friend of mine, Doug McNabb, owns the largest tanning franchise in Canada- Fabutan. His 3 year ordeal began when Canada Health took him to task regarding blatant statements he was making about the benefits of tanning and Vitamin D.

The result, settled late in 2006, was that he was never fined, but instead, Canadian law was amended to allow tanning salons to state that UVB from tanning beds produces vitamin D. Interestingly, tanning salons are not permitted to advertise the benefits of Vitamin D—only that tanning beds produce it….sound familiar?

I expect, in the not to distant future, that this battle will occur in the US Indoor Tanning Industry, and I have no intention of shying away from it when it does. On many fronts, this battle has already begun.

I pride myself, and Darque Tan, on being major contributors to the Sun Scam campaign that was launched in March of this year. Here is a sample of some of the media it created.

http://www.sunlightscam.com/downloads/TanningHighlights.wmv

You can plainly see that the Indoor Tanning Industry is not just defending itself against anti-tanning tactics, but rather, drawing attention to the dangers of the sun-scare message—a message that you have absorbed hook, line and sinker and one that I will address shortly.

Another initiative, which I help fund and organize, is the Vitamin D Foundation's "D-feat Breast Cancer" campaign being launched in May.

'D-Feat Breast Cancer' drive created to support vitamin D cancer ...

"Perhaps I am wrong when I assume that you are a man on a mission; you want to change people's minds about tanning."

You are a very perceptive Ms Prewett. I am a man on a mission, and you seem to be a woman on a mission.

In the course of fulfilling my mission, I have no intention of running afoul of the law. As evidenced above, I seek to advance my mission legally with Industry media campaigns and non-profit research vehicles, like the Vitamin D Foundation.

Another important facet of my mission is our advertising. I have already stated that I believe our advertising meets the requirements of Texas law.

What is "conveyed" to you in our advertising is the unfortunate result of the one-sided message you have uncritically absorbed from beauty magazines, pharmaceutical companies, and your claim that you " have seen the numerous studies linking such exposure to skin cancer, [and] have heard from my dermatologist about the dangers and health risks associated with the exposure".

You clearly state numerous times that "tanning is not healthy". I would love to see the studies you have "seen". Please fell free to forward them. In my email to you I cited specific studies that showed the opposite correlation and a statistic regarding the totality of all the studies ever done. Again, 18 of the 22 studies ever done on this topic, showed no connection at all between indoor tanning and melanoma.

This is a fact you don't want to hear.

But this is science and accordingly, is open to objective evaluation. Why do you think we could never agree on this? This is not an issue of opinion or preference. Tanning is either healthy or it isn't. It either enhances human health or it doesn't. The risks either outweigh the benefits, or they don't.

What studies have you really seen? How far have you really investigated this link? Isn't it possible that there is some information you may have overlooked, starting with the 22 studies ever done on this topic? I would be happy to send you further studies if you wish to investigate this first hand.

Others, who have a different view of tanning, may see a different message "conveyed" in our commercials.

What is conveyed to you, and others, is not nearly as important (from a legal (and moral) point of view) as what is actually said.

We are not claiming "that using a tanning device is safe or free from risk or that using a tanning device will result in medical or health benefits."

We are simply stating that tanning produces Vitamin D. Specifically, our ads equate 4,000 IU's of Vitamin D in a tanning bed with its equivalent in milk and sardines.

Is 4,000 IU's of Vitamin D a "medical or health benefit"? We don't say. Some may argue it is, others may argue it isn't, but that is not the point of the commercial…our point is simple equivalencies.

Again, the purpose of my email to you is not to defend or prove these commercials are legal. I believe they are and, should any governmental agency take issue with our ads, I will cooperate in any way I can. I am confident that any investigation would result favorably for Darque Tan.

My motivation for emailing you is a philosophic one.

For now, I am willing to table my arguments in favor of tanning, for what should be a more important issue to you—the law.

For brief moments in your email, you try to conceal your anti-tanning zealotry with your 'reverent respect' for the law.

"It would not even matter whether or not you could prove to me that tanning is, in fact, healthy, … What really matters is the law… Because of this message, and regardless of its truth or falsity … your ads violate Texas law."

You state clearly and repeatedly that it is not the truth of this matter that concerns you, only the fact that you believe it violates the law.

But then you pay lip service to your altruistically alleged motive—"I am merely a concerned citizen trying to make sure that people in this state are healthy", yet this can hardly be true, can it?

You don't even want to know if tanning is healthy or not. In fact, at one point you even state that it is!

"I understand your concern, as it has been scientifically proven, that tanning does in fact produce Vitamin D… I understand the nature of these statements, as well as the health benefits associated with Vitamin D."

What you object to is not the message, but the messenger!

"… people who have a business to run and money to make will often not tell people the whole truth. Instead, they will tell a "truth" which is favorable to the business". Interestingly, you place "truth" in scare quotations.

Businessmen only tell half-truths, right? Money is the root of all evil. That's why we need legislation—to use the power of government to silence entrepreneurs from making claims about their products.

I guess you feel that the uneducated masses are unable to sift through claims and act on their own judgment. They need an agency like the government to tell them what is safe and what isn't. And we all need watchdogs like you to make sure we fall in line with the governments bidding.

I can hear it now… "if you have a problem with the fact that you are not allowed to pass such information on to potential customers in an advertisement, I suggest you talk to the legislature about that… maybe you can lobby a sympathetic legislature to change the statute so as to allow your currently illegal advertisements".

After all, the law is the law.

As an emerging law student, I wonder what motivated you to choose Law as your profession. One might hope that it was for the noblest of reasons- your passion for justice and your desire to live in a civilized society. Without the rule of law, no such society is possible.

We need laws to implement the principle on which this country was founded—the principle of individual rights—that each person may live free from coercion from his neighbors and his government.

I wonder if, in this day and age, "concerned citizens", such as you and your classmates at UT, ever consider the morality that underlies certain laws. I wonder if you take classes on the ethics of law. I am sure that you do. I wonder if it matters to you and your classmates whether particular laws promote human values or deny them.

If, as you indicate repeatedly in your email, it's just a matter of the law is the law, I wonder-

If you were a lawyer living in the North in the 1850's would you have returned runaway slaves to their Southern "owners" in compliance with the Fugitive Slave Act?

If you were a lawyer in Nazi Germany in the 1940's, would you have turned the Jews over to the Gestapo, in accordance with Nazi law?

If you were a lawyer living in Iran today, would you support the beheading of apostates and the stoning of women for adultery, in accordance with Shariah law?

After all, these were and are "laws".

If compliance to the law is your driving motivation then perhaps you should be a policeman. If justice is anywhere in your motivation, then shouldn't you be considering what kind of laws should be supported, enacted, and enforced?

The laws that you so proudly flaunt in this instance are laws that prohibit speech. Why do you so staunchly advocate these ideas?

Why shouldn't tanning salon operators be able to make claims? Pharmaceutical companies are free to make claims. Dermatologists (who are also businessmen) are free to make claims. The nature of advertising is, in essence, the business of making claims about products and services.

Why shouldn't indoor tanning be subject to the principle of free speech?

Whose rights are being violated when a tanning salon owner advertises a fact, or even an opinion?

More than 50% of the television advertisements today are from pharmaceutical companies making claims about their new and "approved" drugs. Do you have a problem with these claims?

What principle gives rise to the idea, in your mind, that tanning salon owners should not be able to make health claims?

You offer the jaded view of a half-truth telling businessman, as an indictment against business and profit, and their inverse relationship to honesty.

Rational businessmen can only be successful by making honest claims. Dishonest claims are easily found out and cause objective harm and damages.

There is no principle in reality that should enable one group of people to make claims and another, not. There is no rational principle by which you should want customers to be aware of claims made by dermatologists, beauty magazines, and pharmaceutical companies, but not by tanning salon operators. Customers should be free to evaluate any and all claims, the more the better.

The principle of a civilized society is one in which individuals are free to act on their own rational judgment, to make and evaluate any claims they wish. If their claims cause objective harm, they are liable to pay damages.

It is only an aberration of law that some people are allowed to make claims, and others aren't. This aberration is brought into existence by well funded lobbyists pushing legislation to silence tanning salons. You seem to relish in this thought.

Beyond your errors regarding the health value of tanning, lies this much deeper error—the need for government to regulate the claims of businessmen, which is caused by an even deeper error—the "inherent" dishonesty of those who seek to make money.

If one views businessmen as inherently dishonest, as you describe, one will consistently be led to advocate the use of force (legislation) to silence and regulate the evil doers, as in your complaint to the Attorney General. It is illuminating that you wrote the complaint first, and then contacted me only after you had filed it.

You didn't seek to rationally persuade me to stop the campaign, but instead, instinctively you reached straight for the power of government to do your bidding. Then gleefully, you wrote to tell me that 'you told on me'.

If one holds individual rights as a moral and political principle, then conversely, one will advocate restricting the role of government in business and allowing individuals to trade freely based on their own research and rational judgment. One will accordingly try to persuade others, before trying to force them, or pleading to the government to muzzle them.

What is the result of enabling, by law, the silencing of one group while leaving the other totally free to make any claims they desire?

The result has been to indoctrinate an entire generation of people into believing that the sun is a carcinogen and should always be avoided. Accordingly, the AAD recommends that people use sunscreen 24/7, regardless of skin type. This is not an exaggeration. This is their published position.

The consequence of this indoctrination has led to the exponential growth of the SPF Industry. This industry has grown from $35 million in the 1980's to $35 billion today—a thousand fold increase. Skin cancer incidence and mortality rates have barely changed in this period. In fact, studies show that SPF products do not minimize the risk of skin cancer and in some cases, actually increase the risk.

To put skin cancer properly in context, there are approximately 1,000 skin cancer deaths that occur each year. This is a preventable and easily treated cancer that kills less than 1/10th of 1% of the people who get it. These non-melanoma carcinomas come largely from over exposure to UV light, which is why tanning salons preach moderate controlled exposure.

Melanoma is far more dangerous, claiming 30,000 deaths a year, but as I demonstrated earlier, the link between this and UV exposure is not straight forward and the link between melanoma and indoor tanning is non-existent.

The 1,000 skin cancer deaths that occur each year pale in comparison to the nearly 2,000 internal cancer deaths that occur each day!

Breast cancer mortality alone could be halved in this country if people were encouraged to seek optimal Vitamin D blood levels. This is true for a whole host of other cancers, autoimmune diseases and heart disease.

This brings me to the most egregious consequence of this injustice—the silent epidemic of Vitamin D deficiency in this country, directly resulting from the stay-out-of-the-sun message, which you seek to see enforced by legislating tanning salons to keep quiet.

Unbeknownst to the public, more than 50% of white people and 90% of black people suffer from this deficiency in this country, placing them in higher risk categories for diseases far worse and far more prevalent than skin cancer!

What can I do to help prevent this? Should I seek to change current legislation?

Of course I should, and I do, and as I said at the outset, I've been doing this since the early 1990's!

You advise- "go host a Vitamin D conference, get a news spot detailing the studies you listed, or publish something that has no mention of or connection to your business".

This is great advice. I was a speaker at last year's International Tanning conference where I (ironically) discussed how to market Vitamin D legally in tanning salons.

I've attached news spots created from this year's nation-wide pro-tanning campaign that I help fund, in addition to the upcoming breast cancer campaign starting in May. There have also been numerous pro-tanning articles and research papers published recently.

My advertising incorporates Vitamin D messaging (I believe legally), and I spend plenty of time educating others (such as yourself) as to the real issues involved here. I'm not sure there is too much more I can do other than to keep on fighting the good fight.

But what can you do?

You sound very dedicated to doing what you think is necessary to improve the health of your fellow Texans.

I'm wondering how dedicated.

Letters and fines from the Attorney General will take time and litigation.

What if I proposed a situation whereby you could stop our television commercials immediately?

I am so sure that I am right about you, and the dangers of the message you are defending, that I am willing to suspend our Vitamin D ads if you can prove you are not the unsuspecting victim I think you are.

I think you are Vitamin D deficient and I am willing to bet the future of my television campaign on it.

I have arranged, at my expense, for a simple blood test. Dr. Pham at the Dairy Ashford Medical Clinic (12303 Westheimer Rd Ste B, Houston, TX 77077 (281) 556-5823) is expecting your call and will do this for you, free of charge, anytime through this Friday. If this is inconvenient I can send a phlebotomist to your home, school or office, or you can go to a doctor of your choice, again at my expense.

This is a completely free way for you to get tested and determine how Vitamin D healthy you really are.

You have acknowledged that you "understand the nature of …the health benefits associated with Vitamin D", so there should be no reason not to get tested, especially at my expense. I don't imagine you'll start tanning anytime soon, but I will hold you at your honor, to not start taking supplements to artificially spike your levels. J

Blood levels between 54-90 ng/ml (135-225 nmol/l) are considered the best for optimum health, but if you can show me that you have a Vitamin D blood level between 33-100 ng/ml (80-250 nmol/l) which is considered sufficient (conducive to good health), I'll stop the campaign forthwith.

It's that simple.

Prove to me that you're not currently, unknowingly, the victim I think you are. Prove to me that your beliefs have not put you in a higher risk category for cancer, autoimmune disease, and heart disease and I'll stop the campaign immediately.

Ms. Prewett, what do you have to lose?

Here is your chance to help your fellow Texans, silence our campaign, and check your own health, all at the same time and at my expense.

Of course, what you will really be doing is helping me to demonstrate that you, even as my staunchest critic, need my services more than most.

I eagerly await your reply.

Best Regards,

Robbie

www.darquetan.com

--------------------------------------------------------------------------------

From: Emily Prewett [mailto:***REMOVED--Editor***]
Sent: Wednesday, April 23, 2008 5:30 PM

To: Robbie Segler
Subject: Re: Tanning Salon False Advertising

Dear Mr. Segler:

Thank you for your email, and for what seems to be a concerted effort to provide information to me that you believe will be beneficial or which may change or at least influence my opinion on the dangers of UV exposure. However, I have seen the numerous studies linking such exposure to skin cancer, I have heard from my dermatologist about the dangers and health risks associated with the exposure, and I would have to respectfully disagree with your position on the linkage of the two.

This, however, is not the topic I wish to dispute. It does not really matter whether or not you fervently believe that tanning is healthy, or that I fervently believe that it is dangerous. It would not even matter whether or not you could prove to me that tanning is, in fact, healthy, or whether or not I can produce hundreds of studies linking tanning to various health risks. What really matters is the law.

As you are well aware, Texas Health and Safety Code § 145.007 states the following:

A tanning facility operator may not claim or distribute promotional materials that claim that using a tanning device is safe or free from risk or that using a tanning device will result in medical or health benefits.

In your email to me, you seem to be promoting all of the benefits of tanning and as well as the benefits of Vitamin D. I am aware of the vast health benefits of Vitamin D, and that it is associated with, as you stated, "lower risks of breast, colon, protstrate, [sic] and most cancers . . . reduced auto-immune disease and coronary disease, not to mention bone health." We are in complete agreement on this matter. Vitamin D is a necessary nutrient! It is exactly this point which leads me to my conclusion that your ads are designed specifically to provide health incentives for people to come in to your tanning facilities.

You also stated in your email that you do not make any claims in your advertising about Vitamin D, other than how it is produced, because you "are not allowed to advertise . . . that there is a benefit to Vitamin D." However, Mr. Segler, that is incorrect. Vitamin D, a necessary nutrient, is not the subject of the statute. You do not have to say "Vitamin D is good for you" in order to be in violation of the statute. Tanning devices are the subject of the statute. A tanning facility, such as yours, may not claim that using a tanning device will result in any medical benefits or any health benefits whatsoever, including the benefit of 4,000 I.U.s of Vitamin D. And there is simply no exception in the statute for even proven benefits that are associated with such practice. Promoting any health benefits in your advertisements is strictly prohibited.

Further, you do not need to use the words "health," "healthy," "medical benefits," or any similar language in order to convey such a message. And from what I gained from your email, this seems to be exactly the message you want the people watching your advertising to take: tanning produces Vitamin D, and Vitamin D is healthy for you, therefore, tanning is healthy. Simple logic, right? Whether the message is express or implied makes absolutely no difference. What matters is the message that is being conveyed—which, in the case of your advertisements, is the false message that tanning is healthy. I think it is safe to assume that most people, when hearing a message about getting a large dose of a necessary nutrient, will make a leap in their minds that this is a resultant health benefit of tanning. You say your advertising does not broach this issue; while it may not be stated in those exact words, it is most definitely implied. I think the specific purpose of your advertisements is to get people to make this leap that I have described. Because of this message, and regardless of its truth or falsity (which I am certain we will not agree upon), your ads violate Texas law.

Perhaps I am wrong when I assume that you are a man on a mission; you want to change people's minds about tanning. If this is the case, and you have a message you want to spread, I can undoubtedly appreciate that. If there is, in fact, misinformation in the marketplace, I genuinely think that people ought to know about it. We should hear both sides of the story, and then based upon all information available, make our decisions. But there should be a more appropriate forum for such discussion than television advertisements. So go host a Vitamin D conference, get a news spot detailing the studies you listed, or publish something that has no mention of or connection to your business, and that is fine with me. And the State agrees with me, or they would not have passed the provision in the Health and Safety Code which I believe you are violating that specifically prohibits such messages--true or false, express or implied, with no exceptions--in tanning facility advertisements.

The problem here, Mr. Segler, is that people who have a business to run and money to make will often not tell people the whole truth. Instead, they will tell a "truth" which is favorable to the business, which is exactly why this statute was passed. And my impression is also that you are a businessman – a very successful businessman – with a product or a lifestyle to promote, with a company that you are trying to run – and if you can make people believe that tanning is healthy, then it's better for business. When you include the message in your ads, as a ploy or a marketing tool, to get people to come in and pay money to your business, that is when I have a problem. There is a reason the legislature passed the statute; if you have a problem with the fact that you are not allowed to pass such information on to potential customers in an advertisement, I suggest you talk to the legislature about that. If you genuinely believe that tanning is healthy, and you can legitimately back that up, then maybe you can lobby a sympathetic legislature to change the statute so as to allow your currently illegal advertisements. Maybe not. Perhaps you have already tried and been turned down, and these advertisements are your attempt to get as close as possible to saying "tanning is good for you" without using those words. But a long detailed diatribe in an email to a law student who has made a viable complaint will not do you much good.

I understand your concern, as it has been scientifically proven, that tanning does in fact produce Vitamin D. This, again, is not what I am disputing. I understand the nature of these statements, as well as the health benefits associated with Vitamin D. And to be honest, I am offended that you would put the deaths of 63,000 people squarely on my shoulders, and the shoulders of others who are merely concerned with the health of those around us. Please do not misinterpret my email or my complaint as anti-Vitamin D; my position is quite the opposite. I am merely a concerned citizen trying to make sure that people in this state are healthy, or at the very least, not subjected to such propaganda in advertisements. I have nothing to gain from this email, or from my complaint to the AG, other than the knowledge that I may have helped someone. I am not trying to run a business. I am not, and can not, file a lawsuit against you or your company, nor would I wish to do so. I don't care to make any money. All I am asking is for you to reconsider your position on the ads you are currently airing.

If you would like to include information in your ads about tanning making you sexier or more attractive, with half-dressed models that are bronzed and beautiful, you will hear no complaint from me. I think that is probably the strongest, most convincing argument you may have to get people to tan. Advertisements from your industry--or any other industry, for that matter--which promote a fun image, a sexy lifestyle, or a good time, are undoubtedly more appropriate and more truthful. Please know, however, that any ads you air or publish which suggest that tanning is healthy are, in my opinion, violating a law which is designed to protect consumers. And so long as you are airing those advertisements, I will be airing my opinion that the ads are no good.

Thank you again for your response to my concern. Please note that I did not have to notify you of my complaint to the AG, but I felt that out of respect and fairness, you should have the opportunity to change your campaign before being fined by the State. And it is my sincere hope that you will consider changing your advertisements in order to make them comply with the law. If you have any further questions, please feel free to contact me.

Sincerely,

Emily Prewett

--
Emily M. Prewett

The University of Texas School of Law
J.D. Candidate, May 2009

On Wed, Apr 23, 2008 at 10:13 AM, Robbie Segler wrote:

Ms. Prewett,

I am intrigued to know what you find so disgusting about our advertising. Usually I take a lot of heat for the models. It seems you have issues with the content.

We do not urge anyone to tan because of the health benefits of Vitamin D. Our advertising does not list or mention any benefits of Vitamin D.

We only point out the fact that tanning produces Vitamin D. Whether Vitamin D is healthy or not, is not the issue of our advertising. We don't make any claims about Vitamin D (other than how it is produced), as we are not allowed to advertise such benefits. That is not to say that these benefits don't exist…they do…but as you correctly state, we can't say there is a benefit to Vitamin D. Our TV ads just point out the correlation between milk, sardines, and UV exposure when it comes to producing Vitamin D. Is it healthy? Our advertising doesn't broach that issue.

Your concern seems to stem from two close relatives who battled melanoma. Despite the nonsense you have absorbed from the SPF Industry's powerful attacks on tanning salons, the facts are that 18 of the 22 studies ever conducted on indoor tanning and melanoma show NO CONNECTION AT ALL, including the largest and most recent study. In some studies frequent tanners had a lower risk as compared to non-tanners. (Garland Naval Study)

In a 1997 International Journal of Cancer paper, J. Elwood cited that regular exposure to sunlight decreased the risk of melanoma by 14% and in 2005, Dr. M. Berwick in the Journal of the National Cancer Institute stated that melanoma patients who had a history of sunlight exposure had increased survival rates.

It might not concern you that the connection between tanning beds and melanoma has been thoroughly disproved and refuted. The fact that studies show that diets low in anti-oxidants increase the risk of melanoma by 50%, alcohol consumption increases the risk 65%, and smoking increases the risk 85%, probably doesn't have you writing to the attorney general complaining about these Industries' advertising.

While I can't advertise the benefits of Vitamin D, I feel obliged to point out a few facts to you. Our skin mediates the power of sunlight through the production of Vitamin D. This is a vital and necessary component of human health. The avalanche of evidence that links sunlight exposure and the resultant production of Vitamin D to lower risks of breast, colon, prostrate, and most cancers is overwhelming. So to are the links to reduced auto-immune disease and coronary disease, not to mention bone health.

The death toll from Vitamin D deficiencies due to inadequate exposure to sunlight was examined in a 2004 paper "UV Radiation, Vitamin D and Human Health" by Drs. Grant, Holick and Garland and was estimated to be between 50,000 - 63,000 persons annually with an economic burden between $40 - $56 billion. That means that 63,000 deaths can be prevented every year!

This is a real number and one that I put squarely on the shoulders of those who spread the sun-scare hype. Unwittingly they, like you, are filling the coffers of the sunscreen industry (who really fund this message) but the unfortunate fall-out is the real human lives and unnecessary sickness that result from the "stay out of the sun" message.

Ms. Prewett, you seem like a good citizen. As such, I'm implore you to research this topic further and examine all the good you could do by understanding this issue. I would be happy to provide you with more information or be a source for further articles on this subject. Thank you for your time and consideration.

Best Regards,

Robbie

www.darquetan.com
============================================

From: Emily Prewett [mailto:***REMOVED--Editor***]
Sent: Monday, April 21, 2008 2:46 PM
To: Darque Tan - Customer Service
Subject: Tanning Salon False Advertising

URGENT: Please forward this to your legal department.

Darque Tan's current advertising campaign is in direct violation of Texas Health and Safety Code § 145.007, which states that "a tanning facility operator may not claim or distribute promotional materials that claim that using a tanning device is safe or free from risk or that using a tanning device will result in medical or health benefits" (emphasis added). Should the Attorney General institute an investigation and find that the salon is violating this law, a civil penalty of up to $25,000 a day for each day the violation has occurred may be imposed. Any television ads, radio ads, print ads, billboards, and promotional material on the website darquetan.com which urge customers to come in for the health benefits of vitamin D violate this law.

As a private citizen, I am not in a position to pursue enforcement of this particular provision of the Health and Safety Code. I will not be instituting any legal actions against this company or any of its affiliates. However, this is your notice that I have filed a formal complaint with the Attorney General which may be passed on to the Consumer Health and Safety Division of Civil Litigation.

As someone with two close relatives who battled melanoma, I find these ads disgusting. Consumers should be aware of the multitude of health risks associated with UV exposure--which include an increased risk of skin cancer--or at the very least, not be exposed to advertisements that solely push the health benefits of this practice with absolutely no disclaimer or warning. As a citizen concerned for the health and safety of Texans, I would like to request that this prohibited advertising be discontinued.

Please feel free to contact me at this email address should you have any questions about my request, and thank you in advance for your consideration of this matter.

Sincerely,

Emily Prewett
--

Emily M. Prewett

The University of Texas School of Law

J.D. Candidate, May 2009

Imagine that... a full-of-hisself, busy-body 55-year-old perverted tanning salon owner. I don't necessarily agree with the law student's continued discussion with him when it looks like she's got a great case, but I disagree more with business owners that think they're above and beyond the law just because they don't like it.

I thought you'd have to have more brains to run a business but once again, the American public proves to me just how dumb it is.