The Securities and Exchange Commission has announced that Herbalife Nutrition—a direct selling company with operations in over 90 countries— has agreed to pay $20 million to settle charges that it made false and misleading statements about its China business model in numerous U.S. regulatory filings over a six-year period.
According to the SEC’s order, Herbalife told investors, in quarterly and annual SEC filings between 2012 and 2018, that while direct selling is permitted in China, multi-level marketing is not, and that as a result, Herbalife’s business model in China differed from that used in other countries.
The SEC alleged that Herbalife’s representations were untrue because it employed a similar compensation model in China to the one it employed in every other country. Herbalife purported to pay its service providers based on hours worked. However, to calculate service providers’ eligible compensation, Herbalife first calculated individual compensation using its worldwide system, which is based on downline purchases. Herbalife then made certain immaterial adjustments, and ultimately paid the service providers compensation in amounts almost the same as the amounts calculated using the worldwide system.
Service providers did not themselves list their hours or describe the services they purportedly performed on a form they attached to their invoices. Rather, the service provider forms were pre-printed by Herbalife’s business in China with the number of hours for various, specific services on the forms sent to the service providers for their signature. The order finds that Herbalife’s public statements concerning service provider compensation were false and misleading and deprived investors of the information they needed to fully evaluate the risk of investing in Herbalife stock.
“Herbalife deprived investors of valuable information necessary to evaluate risk and make informed investment decisions,” said Marc P. Berger, Director of the SEC’s New York Regional Office. “When making disclosures to investors, issuers must ensure that those disclosures are accurate.”
Without admitting or denying the SEC’s findings, Herbalife consented to the SEC’s order finding that it violated certain anti-fraud and reporting provisions of the federal securities laws. 