MGMT1125 Business Ethics: Herbal Reborn

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Ferrell, O. C. (2018). Business Ethics: Ethical Decision Making & Cases (12th ed.). Cengage Learning.

1. Why has Herbalife’s multilevel compensation model been accused of being a pyramid scheme?

2. Describe the differences between a legitimate business model and a pyramid scheme.

3. How has Herbalife demonstrated social responsibility?

18-1 Introduction

Herbalife International is the third largest direct selling, multilevel marketing company in the world. Its product line consists of weight management and nutrition products. These products are not sold in retail stores; rather, consumers interact with independent contractors, who are often everyday people like themselves, to order the products. Herbalife’s headquarters are located in Los Angeles, California, and it operates in many countries throughout the world. Herbalife is a publicly traded company that is both loved and hated by investors and consumers.

This case first discusses the history of the company from its founding to its present status, followed by a description of the types of products Herbalife offers. Then we will get into a discussion of multilevel marketing and the role of independent contractors in the direct selling model. Next will be an analysis of pyramid schemes and why they are often confused with the multilevel marketing model. We then examine Herbalife to determine whether it is a pyramid scheme.

We will illuminate the role of hedge fund investor William Ackman, who has prominently accused Herbalife of being an elaborate pyramid scheme, in the backdrop of Herbalife’s business model and describe his contentions with the company. The case shows that while Ackman’s accusations may be the most widely known, Herbalife has had to face similar allegations (mostly referring to pyramid schemes) throughout the course of its existence. The case then briefly overviews Herbalife’s social responsibility program and finally ends with overall conclusions.

18-2 History

Herbalife is a company that focuses on nutrition, weight management, and personal care products with independent contractors selling in more than 90 countries. Mark Hughes founded the company in 1980 out of a desire to create a safe alternative to other weight loss products. Herbalife’s first sales were made from out of the trunk of Hughes’s car in Los Angeles, California. Two years later the company reached $2 million in sales. Herbalife was taken public in 1986 on the NASDAQ stock exchange. Since then, Herbalife has become a multibillion dollar global company.

In 1999 Hughes planned to take the company back to the private sector by purchasing all of its remaining shares, but this attempt was stopped when investors sought legal action. The next year, Mark Hughes died unexpectedly at the age of 44. Christopher Pair, who was Herbalife’s former chief operating officer (COO), then became president and chief executive officer (CEO) of the company. His reign at Herbalife was cut short when he stepped down one year later.

An Internet retailer, Rbid.com, made a bid of $173 million to acquire Herbalife, but the Mark Hughes Family Trust rejected the offer. In 2002 the investment firm J.H. Whitney & Co. purchased the company along with another investor and took it back to the private sector. However, in 2004 Herbalife went public once again and was traded on the New York stock exchange. Michael O. Johnson became Herbalife’s CEO in 2003. The company currently has 2.3 million independent contractors throughout the world.

18-3 Products

Herbalife sells weight management, targeted nutrition, energy and fitness, and personal care products, all intended to support a healthy lifestyle. Formula 1 Nutritional Shake Mix is a protein and fiber shake with minerals, vitamins, and nutrients offered in a variety of flavors. Formula 2 Multivitamin Complex is a multivitamin that contains over 20 vitamins, minerals, and herbs essential to healthy living. Formula 3 Cell Activator promotes absorption of minerals and vitamins while improving energy levels. These three core products are at the heart of the Herbalife product line and serve as the baseline for customer nutrition and weight management goals.

The weight management line consists of a variety of Formula 1 protein shakes, supplements, weight loss enhancers, protein bars, and snacks, all serving the purpose of helping customers attain their weight goals. There are three weight management program sets, each with a combination of shakes, supplements, and enhancers designed for different types of weight management needs. For instance, the Personalized Protein Powder and the Protein Drink Mix offerings provide an alternative to traditional meals while supplying energy and curbing hunger cravings, whether consumers want to lose or maintain their weight or build muscle mass.

Targeted nutrition products include dietary and nutritional supplements that contain herbs, vitamins, minerals, and other natural ingredients to strengthen specific areas of the body that tend to be problematic for many people. For example, Tri-Shield helps the heart stay healthy by maintaining good cholesterol levels and providing antioxidants, while Ocular Defense Formula and Joint Support Advanced offer nutritional aid for the eyes and joints of aging adults. Herbalife also offers nutrition products specifically designed for women, men, and children.

In addition, Herbalife provides energy and hydration options for those engaged in sports and fitness activities. Customers can choose from drink mix-ins such as the H 3 O Fitness Drink, which enhances clarity and rehydrates the body, or they can go with supplements such as N-R-G Nature’s Raw Guarana Tablets, which also promote mental clarity. Herbalife24 is an athlete-focused program set, including drink mix-ins, shakes, and supplements, that includes formulas for hydration, prolonged endurance, restoration of strength, and recovery.

Herbalife’s personal care products include skin cleansers, moisturizers, lotions, shampoos, and conditioners. In this product line, Herbalife offers program sets called Herbalife SKIN, containing groups of cleansers, moisturizers, and creams customized for different types of skin from dry to oily. There are also a variety of individual Herbalife SKIN products, such as Energizing Herbal Toner and Firming Eye Gel. Another group of products, called Herbal Aloe, is comprehensive, including Strengthening Shampoo and Conditioner, Hand & Body Wash, Soothing Gel, and more, and is advertised to improve the look and feel of hair and skin. Other items include antiaging products and specialized skincare products such as Body Buffing Scrub and Contouring Creme.

18-4 Multilevel Marketing

Direct selling is the marketing of products to end consumers through person-to-person sales presentations at non-retail locations such as consumer homes, jobs, or online. This should not be confused with on-site salespeople such as at car dealerships; direct sellers go to the consumer, such as at their home or job, to sell the product. Also, direct sellers are generally not actually employees of the companies they represent but rather are autonomous individuals who enter into independent contractor agreements with a company to sell its products.

People are attracted to becoming direct sellers for many reasons. Some are passionate about a product and want to promote the company. Others want to receive a discount on their personal orders, a common perk of being a direct seller. Many find working as a direct seller to be a flexible, part-time opportunity for extra income. Additionally, a lot of direct sellers simply enjoy the social aspect of the job.

Within the direct selling model are two compensation models: single-level marketing and multilevel marketing. Single-level marketing is when direct sellers only earn commissions for sales they make themselves. Multilevel marketing, sometimes called network marketing, means direct sellers earn income from their own sales of products as well as commissions from sales made by those they have recruited. The multilevel marketing model is permitted in nearly all countries but is often strictly regulated and/or closely scrutinized due to its capacity to be abused and become a fraudulent pyramid scheme (discussed later in this case). In order for a multilevel marketing company to be legitimate, it cannot force sales or recruitment. It should also not be necessary for direct sellers to recruit others in order to earn a profit; this should merely be a choice available to sellers if they want to increase their earnings.

Nearly 75 percent of Herbalife members are single-level distributors, meaning they do not sponsor other Herbalife sellers. These single-level Herbalife members simply buy products from the company at a discount and resell to customers and/or consume the products themselves. Since many of these members simply want a discount on these products for their personal use, they may not be as interested in making profits but simply enjoy the opportunity to receive these discounts. See Table 1 for the top 10 global direct selling companies.

Table 1

Top 10 Direct Selling Companies

Company Name and Product Line

2016 Revenue (USD Billions)

1

Amway

Nutrition, Beauty, Bath and Body, Home,

Jewelry, Food and Beverage, Fragrances

$8.80

2

Avon

Cosmetics, Skin Care, Fragrance,

Personal Care, Hair Care, Jewelry, Gifts

$5.70

3

Herbalife

Nutrition, Weight Loss

Management, Personal Care

$4.50

4

Vorwerk

Household Appliances and Cosmetics

$4.20

5

Mary Kay

Cosmetics, Skin Care, Body and Sun,

Men’s Products, Fragrance Gifts

$3.50

6

Infinitus

Health Products

$3.41

7

Perfect

Health Food, Household,

Beauty, Skincare Products

$3.06

8

Quanjian

Natural Medicine

$2.89

9

NaturaCosmetics

$2.26

10

Tupperware

Food Storage and Preparation, Cookware,

Serving Items, Cosmetics, Beauty Products

$2.21

Source: Direct Selling News, “2017 DSN Global 100 List,” Direct Selling News, 2017, http://directsellingnews.com/index.php/view/dsn_announces_the_2017_global_100#.WST8dWjyvIU (accessed May 23, 2017).

This aspect of direct selling, where the seller purchases products at a discount from the firm for his or her own use, is known as internal consumption. Internal consumption is common in many industries; for example, most retailers provide internal consumption incentives by offering discounts to their employees. Department stores, automobile manufacturers, and airline companies provide incentives such as discounts that encourage internal consumption. Many direct selling customers become resellers to get discounts on the products for their own use. They believe in the brands, use them, and want to “spread the word” by creating a broader sales and communication network. Some do not even necessarily care about making a profit from their status as a reseller. This is a common and legal approach for direct selling products around the world. In fact, most direct selling companies use multilevel marketing and permit or even encourage internal consumption.

Despite the general acceptance of multilevel marketing as a legitimate business model, a few countries have sharply restricted or even banned multilevel marketing, limiting direct selling to single-level marketing only. China, for example, only allows international direct selling companies to do business within its borders if they sign contracts saying they will not employ the multilevel marketing aspect of direct selling. It believes multilevel marketing is indistinguishable from or too closely linked to fraudulent activities such as pyramid schemes. There are key differences between pyramid schemes and multilevel marketing compensation models. For example, sellers caught up in pyramid schemes can generally only make a profit by recruiting others, as the product being sold has little value or is highly overpriced. Pyramid schemes also reward recruitment whether or not the new recruit sells anything, whereas multilevel marketing companies do not. The similarities and differences between the pyramid scheme and multilevel marketing are discussed in detail later in this case.

18-5 Herbalife’s Direct Sellers

There are 2.3 million independent contractor direct sellers of Herbalife products. Most, if not all, of them personally use these products as well. Many are attracted to the low startup cost of selling Herbalife, which begins at about $60 for a kit. For this price, new sellers will receive the Mini Herbalife Member Pack, which includes forms, applications, a tote bag, and samples of various Herbalife products. The pack includes informational and training materials which educate the contractor on using and retailing the products, business basics, and how to build a sales and marketing plan. The next step up for a new contractor is the Full Herbalife Member Pack for about $90, which includes everything in the mini pack as well as full-sized products (not just samples). Of course, once the new distributor starts selling, he or she will have to begin purchasing inventory to resell, but a member kit is the only purchase required to become a Herbalife network member, begin receiving discounts on Herbalife products, etc. There is no “fee” to join; the only money spent is for the value of the kit.

Sellers enjoy discounts on Herbalife products ranging from 25 to 50 percent depending on the level of contractorship (contractors move up levels by achieving certain sales and recruitment goals). Herbalife sellers usually purchase inventory themselves and then resell it to buyers; however, it is possible for the distributor to make the sale and then have Herbalife ship the product directly to the buyer. Contractors can sell the products at any price they want and can generally make most decisions on how they want to position and sell their Herbalife inventory, although they are subject to both legal and company rules and restrictions. The more successful an Herbalife seller, the higher up he or she moves on the contractorship ladder, gaining corresponding benefits at each step such as increased product discounts and networking and training opportunities. Seller success is measured by “Volume Points” and “Royalty Override Points.” Volume Points are awarded when the seller purchases Herbalife products for resale or has Herbalife ship products directly to a buyer, and Royalty Override Points are accumulated based on the volume of products sold by the seller’s personally sponsored recruits. Royalty Override Points, however, cannot be earned until the seller has already reached a certain contractorship level through his or her own sales.

To go from basic distributor to the Senior Consultant level, a Herbalife member must accumulate a minimum of 500 Volume Points in one month. To keep the Senior Consultant designation and perks, the member must maintain that minimum level of sales monthly. The second level of Senior Consultant requires 2,000 Volume Points in a month, or a seller can be named a Success Builder for the month by arranging a single sale valued at over 1,000 Volume Points. Levels after these include Qualified Producer (2,500 Volume Points accumulated within one to three months), Supervisor (either 4,000 Value Points in one month, 2,500 Value Points in each of two consecutive months, or 5,000 personally purchased Value Points within 12 months), and World Team (either 10,000 Volume Points in one month, 2,500 Value Points in each of four consecutive months, or 500 Royalty Override Points in one month). Once a contractor reaches the Supervisor level, he or she unlocks the maximum product discount of 50 percent as well as the ability to earn Royalty Override Points through sales of his or her recruits.

In the event that a contractor no longer wants to sell Herbalife products, the company will buy back any remaining inventory the contractor has on hand. Herbalife goes beyond the Direct Selling Association’s ethical guidelines for buying back products by reimbursing the distributor for everything he or she initially paid for (100 percent buyback policy). The company also limits the amount of inventory a seller can initially buy in order to avoid association with inventory loading, defined by the Federal Trade Commission (FTC) as requiring a contractor to make a large upfront purchase of nonreturnable inventory (a fraud-inviting tactic often used by pyramid schemes). To renew their membership, contractors pay a $10 annual membership fee to Herbalife.

The Herbalife business model has succeeded due to the company’s excellent products and customer support. Most of its distributors do not have a physical store location but practice direct selling from home. They are not employees but independent businesspeople who choose how they want to operate. However, there are strict company policies and legal requirements that contractors must abide by regulating product information, sales techniques, advertising, lead generation, social media, and related issues. For instance, members used to be able to sell online on their own websites, so long as they followed certain rules. In 2014, however, in response to regulatory scrutiny into its distributors’ online marketing statements, Herbalife disallowed independent online selling. Instead, it created a centralized e-commerce section on its website which, when a customer places an order, randomly connects the customer to a suitable distributor to complete the sale and follow up with the classic person-to-person interaction of direct selling. This is now the only way Herbalife contractors can sell online. Contractors are also not permitted to resell products in retail stores (other than in China, where retail store sales are permitted).

Herbalife’s selling policies are guided by the principles of the World Federation of Direct Selling Association (WFDSA) and the Direct Selling Association (DSA) in the United States. The WFDSA promotes ethical practices in direct selling globally through advocacy and strong relationships with government, consumers, and academia. The DSA also emphasizes ethical practices and requires that members such as Herbalife adhere to the DSA’s code of ethics (see Table 2). This code of ethics recognizes the importance of a fair and responsible approach to direct selling, since direct selling requires sensitive and personal one-on-one interaction that can lead to undue pressure placed upon consumers. The code has no tolerance for deceptive or unlawful practices regarding recruits and customers; requires that direct sellers provide accurate and truthful information about the price, quality, promotion, etc. of the products; illuminates and enforces the need for a clear record of the sales made by contractors; necessitates that warranties and guarantees be fully acknowledged; requires sellers to clearly identify themselves to customers and maintain the confidential information of their customers; prohibits signature pyramid scheme practices; and provides guidelines on inventory purchases, earnings reporting, inventory loading, fee payments, and training.

Table 2

Direct Selling Association Code of Ethics (Summary Version)

As a consumer you should expect salespeople to:

Tell you who they are, why they’re approaching you and what products they are selling.

Promptly end a demonstration or presentation at your request.

Provide a receipt with a clearly stated cooling off period permitting the consumer to withdraw from a purchase order within a minimum of three days from the date of the purchase transaction and receive a full refund of the purchase price.

Explain how to return a product or cancel an order.

Provide you with promotional materials that contain the address and telephone number of the direct selling company.

Provide a written receipt that identifies the company and salesperson, including contact information for either.

Respect your privacy by calling at a time that is convenient for you.

Safeguard your private information.

Provide accurate and truthful information regarding the price, quality, quantity, performance, and availability of their product or service.

Offer a written receipt in language you can understand.

Offer a complete description of any warranty or guarantee.

As a salesperson, you should expect a DSA member company to:

Provide you with accurate information about the company’s compensation plan, products, and sales methods.

Describe the relationship between you and the company in writing.

Be accurate in any comparisons about products, services, or opportunities.

Refrain from any unlawful or unethical recruiting practice and exorbitant entrance or training fees.

Ensure that you are not just buying products solely to qualify for downline commissions.

Ensure that any materials marketed to you by others in the salesforce are consistent with the company’s policies, are reasonably priced and have the same return policy as the company’s.

Require you to abide by the requirements of the Code of Ethics.

Safeguard your private information.

Provide adequate training to help you operate ethically.

Base all actual and potential sales and earning claims on documented facts.

Encourage you to purchase only the inventory you can sell in a reasonable amount of time.

Repurchase marketable inventory and sales aids you have purchased within the past 12 months at 90 percent or more of your original cost if you decide to leave the business.

Explain the repurchase option in writing.

Have reasonable startup fees and costs.

Source: Direct Selling Association, Consumer Protection Toolkit, http://www.dsef.org/wp-content/uploads/2015/03/DSEF-Consumer-Protection-Toolkit.pdf (accessed May 25, 2017)

A 2013 independent survey conducted by Nielsen, a reputable global information and measurement company, showed the number of end consumers Herbalife serves in the United States. The study, which took place online over the course of two months, sampled 10,525 consumers and was balanced in terms of demographics, income, and geographic placement. The results indicated that 3.3 percent of the general U.S. population made a Herbalife purchase sometime within a three-month period. This percentage of the population translates into 7.9 million customers. This number does include Herbalife’s direct sellers as internal consumers, but the number of U.S. contractors at the time was only approximately 550,000, indicating that the number of end users was much higher than the number of independent contractors. This is a good sign for the strength and legitimacy of the company’s model, as pyramid schemes generally do not make significant sales outside of their own networks. Additionally, the study showed that those who had made a purchase in the last three months tended to make Herbalife purchases consistently (approximately every two months) and that the most popular products were those dealing with weight management (making up 95 percent of purchases recorded by the study).

One aspect of Herbalife’s model that has raised concern is its approach to line commissions or the way sellers can make money off the sales of their recruits. Currently, Herbalife contractors can earn commissions on what every recruit below them buys or sells, including not only the recruits they themselves sign up but also those brought in by their recruits, and so on down the line. This structure, known as “unlimited down lines,” means that those at the very top of the recruiting structure can make large amounts of money simply through recruiting, a classic warning sign of a pyramid scheme. Many other multilevel marketing companies limit commissions to, for example, three levels down line only, to avoid this issue.

18-6 Pyramid Schemes

A pyramid scheme is a fraudulent business model that eventually inevitably collapses, with the vast majority of participants losing their investments while the few at the top of the “pyramid” profit. The four defining characteristics of a pyramid scheme are laid out by the Koscot Test, the foundational legal analysis used in the United States to determine whether a business is a pyramid scheme. These characteristics are

· (1)

people pay the company to participate;

· (2)

in return, they gain the right to sell a product or service;

· (3)

they also are compensated for recruiting others; and

· (4)

this compensation is unrelated to whether or not any of the product or service is actually sold.

In other words, participants have little or no incentive to sell products but only to continually recruit others into the scheme. Each person recruited pays an up-front fee (usually expensive), and these fees trickle up the pyramid to be collected by the fraudsters at the top. Newcomers continue joining because, as explained by the FTC, they are promised large profits for buying in and continuing to recruit others. The Federal Bureau of Investigation (FBI) warns of pyramid schemes that come in the form of apparent marketing and investment opportunities where the individual is offered a contractorship or franchise to market a particular product. The key is where the real profit is earned; if it is not by actual product sales but by sales of new contractorships, it is likely a pyramid scheme.

Pyramid schemes and legitimate multilevel marketing businesses are both based on recruiting new participants into selling the product. The California Department of Justice explains the difference as the following: In a multilevel marketing model, money is primarily made through the eventual sale of the product to an end user, whereas in an illegal pyramid scheme, money is primarily or only made through recruiting new sellers. The participants at the top of the pyramid earn money when new members are recruited through the newcomers paying membership fees and/or buying initial product inventory. Each new member is then incentivized or required to recruit more new participants. As this cycle continues, the possible pool of untapped participants shrinks, making it hard for those at the bottom to gain a return on their investment (as the only money for them is in further recruitment). Because of this, a pyramid scheme will always ultimately collapse due to a lack of new recruits and is therefore unsustainable. Another important point is that the products offered by pyramid schemes are usually low quality or very overpriced, again making recruitment the only financially viable option for those involved. The recruits are being sold on an idea or model that, in reality, is unprofitable.

18-7 Is Herbalife a Pyramid Scheme? Ackman’s Allegations

Herbalife, like most other multilevel marketing companies, has been accused of being a pyramid scheme more than once. However, considering the firm’s long and successful history, these claims were given little weight until 2012, when prominent hedge fund manager and billionaire investor William Ackman announced that he and his company, Pershing Square Capital Management, had spent a year studying Herbalife and concluded it was an elaborate pyramid scheme. Ackman is known as an “activist investor” and claimed it was his civic duty to expose Herbalife as fraudulent. Of course, his company also stood to profit heavily, having invested $1 billion in a short sale off Herbalife’s stock (a complex investment strategy that earns money if the stock price falls, rather than rises). Ackman’s target stock price for Herbalife was $0. In other words, he believed the company should and would fail. He has since continued to campaign and advocate against Herbalife and has plunged the company into a never-before-faced level of controversy over its legitimacy as a business.

Ackman’s accusations against Herbalife were initially laid out in a three-hour, 342-slide presentation, the result of months of research and analysis by his team. The accusations included the following:

· (1)

the majority of contractors for Herbalife lose money,

· (2)

Herbalife pays out more for recruiting new contractors than selling actual products, and

· (3)

only the top 1 percent of contractors earn most of the money.

Ackman argues that Herbalife recruits contractors under false pretenses by unrealistically suggesting they can earn the income of those few at the top. Furthermore, he alleges that the real money in Herbalife comes not from selling products but from recruiting other contractors, as all the top earners make the vast majority of their income through down line commissions from the sales of those in their recruiting chain. Although Herbalife has published results showing that the majority of its money is made through product sales, Ackman believes this information is false and/or misleading, instead estimating sales to be only 3 percent of Herbalife’s revenue, with the rest made via recruiting.

Ackman also contends that when people go to purchase Herbalife products, the sellers usually try to convince them to become recruits rather than remain only customers. He claims that the only thing keeping the company running is new recruits, and it will soon run out of available people to bring into the business—which is why it keeps entering new countries.

Supporters of Herbalife point out that many consumers and organizations buy and use Herbalife products and see them as high quality and credible. For example, Los Angeles fire and police departments offer Herbalife products in their fitness centers, and Herbalife products have even been adopted by some Chinese Olympic teams. Pyramid schemes, in contrast, do not offer high-quality, respected products. Additionally, because independent research such as the previously mentioned Nielsen study shows that the number of Herbalife end users is much larger than the number of Herbalife contractors, supporters of Herbalife claim it cannot possibly be operating a pyramid scheme. These viewpoints help validate Herbalife as a valid and successful business model that is producing profits directly related to product sales and is growing and expanding globally.

Ackman, however, says these arguments are invalid or based on faulty data. He claims the premium perception of Herbalife products is entirely a marketing scheme and that Herbalife conducts almost no unique research and development, indicating its products are no better than much cheaper competitor offerings. He also claims the survey measuring the number of contractors versus end consumers contradicts two others previously released by the company, that the survey sample was too small and thus made the results overly optimistic, and that there were not enough specifics in the survey (such as the actual prices consumers paid and an itemized breakdown of products purchased) to make it truly useful. He furthermore argues it is suspicious that Herbalife refuses to make the details of its recruiting process publicly available for scrutiny.

Herbalife has also been accused of issuing false accounting statements, although there has never been any official legal claim brought about how it records its sales. According to allegations, all products sold to contractors are shown as retail sales on the company’s revenue numbers, without always tracking whether the product was consumed by the contractor (that is, internal consumption) or to whom the contractor sold the product. Critics believe the company should not be recording sales revenue off the contractors’ consumption but only from sales made to end users. This argument falls into the larger backdrop of the legitimacy of internal consumption, which is sometimes contested in the context of direct selling. It should be noted that internal consumption is a common practice found in nearly every industry. For example, Coca-Cola has 100 percent internal consumption because all of its products are sold to resellers. Costco also has 100 percent internal consumption because all of its products are sold to Costco members. A high percentage of internal consumption has never been by itself enough to indicate a pyramid scheme, and there has never been major criticism of companies encouraging internal consumption except with the direct selling, multilevel marketing compensation model.

Furthermore, sometimes when new contractors are recruited, they need to buy products that they can consume themselves or sell to others. This practice has caused suspicion among Herbalife’s critics, who draw similarities between it and inventory loading. On the other hand, contractors are only required to buy more products beyond the initial startup purchase if they want or need them for personal or business purposes, and generally the amount of products Herbalife contractors are required to purchase is lower than many other multilevel marketing businesses.

Ackman and other critics have emphasized that the majority of Herbalife contractors are not successful in selling their products. Herbalife’s records show that only 1 percent of its registered contractors will make $100,000 or more from the business in their lifetime. One possible explanation is that the ease of entry and extremely low cost of becoming a Herbalife contractor makes it possible for those with little or no sales and business experience to give direct selling a try. Even if contractors are not successful at selling, the cost of entry is less than $100 and they still will have products that they can consume. Herbalife also points out that every kind of business requires a large amount of effort to make a good profit, and direct selling is no different. Even with businesses like Herbalife, if a contractor wants to make a living from distributing, he or she will have to develop marketing materials and a successful sales style, find unsaturated areas of the market, build relationships with customers, and more. If the contractor additionally wants to get into recruiting, he or she will also have to find new potential sellers, maintain relationships with recruits to encourage them to make sales and find new recruits of their own, and so on. Many who try direct selling are either not willing or lack the business knowledge to put in sufficient effort to make a living. Those who sign up for this opportunity as a side job only work part-time or less, depending on how much extra money they want to make. Ackman argues that Herbalife sugarcoats the truth behind promises of easy wealth, but Herbalife counters that it makes the heavy requirements of full-time selling clear in its promotional materials and advertisements. However, a video surfaced in 2014 from a private management and distributor meeting showing a top Herbalife earner stating they “sell people on a dream business” when “the reality is that most of them aren’t going to make it.”

Ackman’s allegations—harsh, apparently well-researched, and made by a respected investor—launched an unprecedented storm of controversy for Herbalife. Four days after Ackman’s initial presentation, the company’s stock fell 43 percent. The debate over the company has become polarized, with prominent investors, analysts, public interest groups, and loyalists presenting heated arguments both for and against Herbalife’s legitimacy. Recognizing the seriousness of the situation, Herbalife responded in force, including hiring an expensive lobbying team and launching one of the largest marketing campaigns in its history to bolster and reemphasize its brand. At this point, both Ackman and Herbalife have spent tens and possibly hundreds of millions of dollars supporting their positions and

Pyramid schemes can be hard to identify clearly, but the FTC has warned consumers about two red flags. The first is inventory loading, a requirement that new participants purchase a large amount of nonrefundable inventory of the product. If the product is actually worthless, it is clear how this kind of practice invites fraud. Inventory loading can at first glance look similar to legitimate internal consumption, but it differs because internal consumption is voluntary and not a requirement of becoming a direct seller. Not only is inventory loading a red flag, but it is also illegal. The Direct Selling Association’s Code of Ethics (see  Table 2 ) requires member companies to have a refund policy and buy back excess inventory if a contractor no longer wants to sell. The second warning sign of a pyramid scheme is a lack of retail sales or sales external to the selling network. If the only people buying the product are the ones supposedly selling it, there is likely a problem with the business. If such a business also requires inventory loading to get involved, it may well be a pyramid scheme.

Another way of detecting a pyramid scheme is by examining the intentions of the participants. If people are purchasing a product they really do not want just to participate, that is an indication they could be caught up in a pyramid scheme. It is for these reasons that some legitimate direct selling businesses using the multilevel marketing compensation method can appear to be pyramid schemes. The line between the two is not always clear, and when a direct selling business such as Herbalife is accused of being a pyramid scheme, the allegations can be difficult to shake.

18-8 Criticism against William Ackman

As mentioned earlier, while Ackman accused Herbalife of operating a pyramid scheme, his investment company bet against its stock in the amount of $1 billion. Naturally, many people saw this coupling of a short sale and subsequent accusations as a serious conflict of interest that threw Ackman’s motives and the validity of his claims into doubt. In an attempt to defuse this criticism, Ackman pledged to give any personal profit he makes from the short sale to charity, but his company still stands to benefit both financially and reputationally from Herbalife’s setbacks. So far, Herbalife’s stock has not yet fallen low enough for Ackman’s short sale to be profitable, although it has come close a few times. Ackman continues to hold to his all-in $0 stock price prediction and claims he is committed to it over the long term, with no plans to cash out early even if the opportunity presents itself.

Ackman has also been criticized for the methods he has used in attempting to bring Herbalife down. For example, because one of Ackman’s contentions is that Herbalife disproportionately targets vulnerable low-income and low-education minorities to pay into being part of its “pyramid,” Ackman’s company paid civil rights organizations $130,000 to collect names of people who were allegedly victims of Herbalife. However, the Nevada Attorney General found issues with some of the letters Ackman was supposed to have received from those organizations. Three of the letters from nonprofit groups signed by Hispanic community leaders were identical, and none of the leaders could identify any Herbalife victims by name. Other attorneys general had similar experiences. Some of the leaders who allegedly wrote the letters later denied they had written them. Such inconsistencies cast doubt over Ackman’s claims and research as a whole.

Another example of potentially questionable methods came in 2015, when it was revealed that federal prosecutors and FBI agents were investigating Ackman and his company for evidence of illegal manipulation of Herbalife’s stock. Agents reviewed documents and conducted interviews of lobbyists and consultants hired by Ackman. Proving illegal stock manipulation is not easy, requiring evidence that Ackman and his company knowingly made false or misleading statements in order to incite investigations against Herbalife and affect its market valuation. Eventually, the investigation cleared Ackman of wrongdoing.

Shortly after Ackman’s accusations, another prominent billionaire investor, Carl Icahn, came to the defense of Herbalife and became a majority shareholder and board member. This helped boost investor confidence in Herbalife and led to a significant rise in stock value (although the stock later fell again and has continued to fluctuate). Icahn also publicly denounced Ackman and his claims, setting off a public feud between the two. Icahn’s actions seemed to be a serious blow to Ackman at the time, providing a respected pro-Herbalife counterpart to Ackman. However, as Ackman continued to remind the public, pyramid schemes take time to reveal themselves, and he was prepared to go for the long haul and wait it out. Icahn and Ackman have since reconciled their personal disagreements, although they remain on opposite sides of the Herbalife issue.

An article in the March 15, 2014 issue of The Economist as well as a similar article in The New York Times provided a critical assessment of Ackman’s attempts to use state-of-the-art lobbying in Washington to support his $1 billion short bet against Herbalife by attempting to convince legislators and regulators to investigate, speak out about, and otherwise stand against Herbalife. Ackman has been at the heart of well-executed lobbying. According to The Economist, Ackman sees himself as a moral crusader against Herbalife, but his critics see him as simply a “greedy billionaire who is now exploiting America’s newly laissez-faire attitude to political spending in pursuit of a big financial payday.” Herbalife has responded in kind, spending millions on its own lobbying efforts to stave off regulators and call for investigations of Ackman instead.

18-9 The Controversy Continues

Herbalife has had to deal with significant issues and pressures since Ackman first went public with his allegations. It has spent millions on lobbying and marketing in an attempt to counteract Ackman’s similar efforts and retain its hard-earned image of quality and legitimacy and has watched its stock price fluctuate wildly from strong to weak and back again in response to various developments. It has also made internal changes, such as only permitting online sales through its own website and limiting the amount of products new members can initially order, hoping to more clearly show regulators and the public that it is a legitimate multilevel marketing company and not a pyramid scheme. Both Herbalife and Ackman have launched several websites as part of their respective campaigns. On Ackman’s side, URLs such as herbalifepyramidscheme.com take users to a website outlining Ackman’s allegations in detail and linking to anti-Herbalife news and developments. For Herbalife, the site iamherbalife.com features dozens of positive testimonials from users of Herbalife products. Herbalife also decided to go on the direct offensive with a website called therealbillackman.com, which compiles articles, videos, and other media exhibiting Ackman in a negative light.

The threat of an official governmental probe was one of the most looming potential consequences of the controversy for Herbalife. In the wake of Ackman’s claims, special interest groups such as the Hispanic Federation and the National Consumers League began urging the FTC to investigate Herbalife’s operations. Not only did they stand behind the contention that Herbalife was operating a massive pyramid scheme, but they also claimed the company targeted vulnerable groups including low-income Hispanic immigrants and low-income African Americans. They alleged that Herbalife used aggressive recruiting techniques, promises of getting rich with minimal work, and other shady methods to take advantage of disadvantaged people with little or no business experience.

The claims arose from the proliferation of Herbalife “nutrition clubs” that had been established in Latino/Hispanic communities in Southern California. These nutrition clubs involved community members who paid a membership fee to discuss health issues and consume Herbalife products in a social setting. The popularity of these nutrition clubs originated in Mexico, which is where most of the Latino/Hispanic immigrants in Southern California immigrated from. Herbalife claimed the nutrition clubs started arising in California because Hispanics saw how successful they were in Mexico and wanted to import the idea to the United States. Others, however, claimed these clubs harmed the community because they usually turned out to be too costly for those who ran them and those involved ended up losing more than they bargained for. California Congresswoman Linda Sanchez wrote a letter to the FTC asking the agency to investigate Herbalife. She cited the intense media coverage and outreach from special interest groups and constituents as reasons for the FTC to investigate the company. Similar claims also abounded in New York, and New York City Councilwoman Julissa Ferreras wrote to the FTC advocating for an investigation as well. In 2014 Ackman profiled Herbalife’s top distributors and continued his lobbying in Washington to have Herbalife investigated by the FTC, supporting the claims that the company sells a questionable product to vulnerable immigrants.

In response to these and other requests for an investigation, both the FTC and the Securities and Exchange Commission (SEC) opened official inquiries into Herbalife in 2014. Herbalife stated it would cooperate fully with investigators and invited the opportunity to prove the legitimacy of its business model. The agencies reviewed documents, asked Herbalife for information about its policies and processes, and interviewed top Herbalife sellers on their business practices. Ackman made much of these investigations, touting them as a major win for his position and the beginning of the end for Herbalife. He also stated that top Herbalife executives were in the process of preemptively hiring criminal defense lawyers. However, Ackman refused to reveal his source for this information.

The situation has also spawned several independent lawsuits claiming Herbalife defrauded investors by pretending to be a legitimate company. One, brought by two pension funds with investments in Herbalife, was dismissed by the U.S. District Court, which found the arguments that Herbalife was a pyramid scheme to be “unpersuasive.” Another, however, led to a $17.5 million settlement after an 18-month legal battle. The suit was a class action complaint brought by a former Herbalife contractor on behalf of hundreds of thousands of distributors who claimed, among other serious allegations, the company was operating as a pyramid scheme. One of the key specific claims of the case was that a large majority of all Herbalife contractors (approximately 71 percent) make few, if any, external sales and are forced to self-consume the Herbalife products. As part of the settlement, Herbalife agreed to make a variety of changes to its business model for at least three years, including modifications to its corporate policies and the wording of its membership agreement, as well as paying for shipping of legitimately returned items by members. Herbalife will likely continue to face similar accusations in the future and must remain proactive in addressing them.

The concept of internal consumption—although in and of itself legitimate—also continues to be questioned by regulators. The belief prevails that a large amount of internal consumption in direct selling companies indicates a pyramid scheme. In 2012 a U.S. judge ordered an organization called BurnLounge to disband and reimburse customers $17 million after the FTC determined that the company was operating a pyramid scheme. BurnLounge marketed itself as a way for entrepreneurs to sell digital music and earn large incomes. Participants paid to enter the scheme. Very few sales were recorded, and 90 percent of participants did not act as independent distributors selling a product.

BurnLounge appealed. They stated that the FTC did not have enough evidence. The appeal was heard by the Ninth Circuit Court of Appeals in 2014. The implications of this case for the multilevel marketing direct selling industry were significant. In the initial judgment against BurnLounge, it was ruled that in determining the amount of product sales made by a multilevel marketing company to ultimate users, sales to participants should not be included—in other words, internal consumption did not count. It was feared that a legal decision could rule that the majority of products must be sold to people outside a direct selling company’s network, with sales to distributors not counted. Such a ruling would have put significant limitations on the level of internal consumption considered to be legitimate, which would have led to troubling implications for companies like Herbalife that claim many of their members sign up just to get discounts for personal product use.

The federal appeals court upheld the FTC’s decision that BurnLounge was operating an illegal pyramid scheme. However, the ruling was viewed favorably by the direct selling industry overall because it did not rely on an analysis of internal consumption; rather, BurnLounge was determined to be a pyramid scheme due to the fact that participants had to pay to join and were mainly motivated by recruiting others into the scheme (versus selling an actual product). The biggest relief for organizations like Herbalife was that the court did not rule that commissions generated from goods sold within the distribution network were illegal. Internal consumption was defined as purchases made by distributors for personal consumption or resale. The court distinguished this from buying products simply to qualify for bonuses or get a discount. Like any other reseller, direct sellers purchasing products for internal consumption have the option of consuming the products or selling them to others. It is unnecessary and likely impossible to measure the exact percentage of the product being consumed by independent contractors versus the exact percentage being sold to consumers.

Rather than singling out the amount of internal consumption as the key factor, the BurnLounge decision seemed to focus more on whether the emphasis of the business in question is sales of products or recruitment. Other important factors included how an organization calculates commissions and the importance of selling the product for the successful operation of the business. The intent for purchase is also a crucial component—if purchases are driven by the product’s value, instead of by money-making ventures, then it is most likely a legitimate operation.

Additionally, the BurnLounge decision described some tests that could indicate a pyramid scheme. Specifically, red flags include focusing more on recruitment than merchandise; paying bonuses primarily based on recruitment activity; promoting the program instead of selling the product; having participants purchase the right to earn profits through the recruitment of other individuals; developing strong incentives for recruitment; motivating package purchases by the opportunity to earn money; and making it unlikely that meaningful retail sales will occur. Although each of these is not necessarily a red flag by itself, several of them taken together could indicate a pyramid scheme. For instance, the court found that 95 percent of BurnLounge distributors brought premium products but only 35 percent of non-distributors did so. BurnLounge products had little value, and distributors were required to buy premium packages if they wanted to be eligible to receive additional commissions.

Both Herbalife and Ackman claimed the BurnLounge decision validated their position. Herbalife argued that because Herbalife contractors sell products of value, participants do not have to pay simply to participate, and significant retail sales do occur, the decision lends credence to Herbalife’s legitimacy. Ackman’s company, on the other hand, issued a statement pointing to similarities between his allegations and several of the warning signs laid out by the court and argued that Herbalife’s business model is dangerously similar to that of BurnLounge.

Beyond the possibility of another appeal to the Supreme Court, BurnLounge’s story is over. Herbalife, however, continues. As the legal rules for determining the difference between a multilevel marketing company and a pyramid scheme continue to develop, and the federal agency investigations into Herbalife continued, stakeholders watched closely to see how this threat to the 35-year-old company would play out. After two years of investigating Herbalife, the FTC concluded that Herbalife focused too much on recruitment and that many new recruits were deceived into believing they could make a lot of money selling Herbalife products. The FTC believed that videos Herbalife had released in English and Spanish marketing high incomes from selling Herbalife products and recruiting other salespeople were misleading—many salespeople lost money, and it was estimated that sales leaders earned less than $300 in reward payments in 2014. To settle these claims, Herbalife agreed to pay $200 million and agreed to revise its business practices.

Interestingly, one of the practices Herbalife promised to change is to begin differentiating between those salespeople who want to sell the product and those who only join to receive a discount. Herbalife has announced that buyers who only join to receive discounts will no longer receive rewards or be eligible to sell Herbalife products. Additionally, Herbalife has agreed that two-thirds of its distributor rewards will be based on retail sales, and 80 percent of its sales must be to legitimate customers in order to continue paying distributors at current levels. This places more emphasis on the selling of products rather than recruitment.

While this might seem like a blow to Herbalife, the FTC agreed not to charge Herbalife with being a pyramid scheme. This is important because while it shows the government viewed some of Herbalife’s practices as questionable, the government did not charge it with running an illegal operation. In fact, Fortune magazine later reported that hundreds of the alleged victims of Herbalife’s selling practices who received compensation from the company were actually discount buyers. Herbalife claims that the FTC’s ruling proves that its operations are legitimate. Ackman, on the other hand, claims the ruling and penalties imposed on Herbalife proved that Herbalife is running an illegal pyramid scheme.

Nearly a year after the ruling, Herbalife’s profits are going strong. Herbalife CEO Michael Johnson stepped down from his role and was replaced by COO Richard Goudis. Goudis claims that Herbalife’s success shows that Ackman’s claims were nothing more than “fake news.” Herbalife claims that changing certain practices, such as verifying its distributors by examining their receipts, have actually aided the company in understanding its customers and distributors better. Meanwhile, Ackman’s Pershing Square has lost hundreds of millions due to its bet on Herbalife. Despite this fact, Ackman continues to maintain that Herbalife is operating a pyramid scheme and that it will be unable to fulfill the promises it made to the government to overhaul its business practices. He still maintains that Herbalife will go out of business eventually.

18-10 Herbalife’s Social Responsibility

The corporate social responsibility section of Herbalife’s website makes it clear the company is proud of its corporate social responsibility program, which it believes summarizes its top values of doing “the right, honest, and ethical thing.” Herbalife’s corporate governance helps to create increased accountability toward stakeholders and allows the firm to meet transparency requirements set forth by the New York Stock Exchange for publicly listed companies.

Herbalife’s focus on business ethics helps it uphold high ethical standards in company operations. Former CEO Michael Johnson said that the company’s reputation is its greatest asset. According to Herbalife’s Corporate Code of Business Conduct and Ethics, employees must engage in fair interaction with everyone associated with the company, including external stakeholders. The code has guidelines in place as to how contractors and employees of Herbalife should interact with suppliers, competitors, business partners, and regulatory authorities. Herbalife stresses legal compliance and sets boundaries on gifts and entertainment so that employees can tell the difference between small gifts for hospitality and bribes. It discourages conflict of interest situations and offers three methods of reporting unethical behavior: through its company hotline, its website, or by contacting the general counsel. Those who violate these standards are disciplined, suspended, or terminated. Herbalife holds annual ethics training for all employees worldwide.

Another aspect of Herbalife’s social responsibility program is its philanthropic efforts. The Herbalife Family Foundation (HFF) and the Casa Herbalife program, founded in 1994 by Mark Hughes, provide funds and volunteerism to charities committed to supporting at-risk children. HFF also provides support to nutrition initiatives and disaster relief. Its partnership with the Global Alliance for Improved Nutrition and DSM Nutritional Products—a producer of vitamins and nutrition ingredients—focuses on providing essential nutrients to improve the health of women and children worldwide. In a similar vein, Herbalife in 2015 announced a one-year partnership with Global Health Strategies Institute to improve the nutritional intake of over 10,000 young children in India.

As part of Herbalife’s corporate social responsibility program, it also focuses on its internal stakeholders. For instance, Herbalife proactively embraces employee wellness and eco-friendly initiatives. The company incentivizes employees to be healthy and participate in fitness activities. Such incentives include complimentary products and lower individual health insurance costs. The company has even been recognized by Men’s Fitness magazine as One of the 15 Fittest Companies in America. In terms of being environmentally conscious, Herbalife’s headquarters have received accolades for its LEED certification and environmentally friendly design. It also encourages distributors to increase their own sustainability activities.

Reference

Ferrell, O. C. (2018). Business Ethics: Ethical Decision Making & Cases (12th ed.). Cengage Learning.