SOURCE: Torbay Holdings Inc.

October 14, 2005 16:04 ET

Torbay Holdings Inc.: "Of Mice & Alleged Misrepresentation": Complaints Filed With the Federal Trade Commission in Regards to Section 508 Compliance Advertisements

MINEOLA, NY -- (MARKET WIRE) -- October 14, 2005 -- Torbay Holdings Inc. (OTC BB: TRBY) announced today that it had filed two complaints under the Federal Trade Commission Act with the Federal Trade Commission in relation to statements of product compliance with Section 508 Law by an (herein) unnamed competitor and the GSA Section 508 who advertise, so propagate, such statements to government purchasers and the public who have rights prescribed under that Law.

The Federal Trade Commission is charged with Consumer Protection and The Division of Advertising Practices, described as "The Nation's enforcer of federal truth-in-advertising laws," focuses its law enforcement activities on, amongst other things, "Performance claims for computers, ISPs and other high-tech products and services, and claims as to product performance made in national medias including the Internet."

Section 5 of the act prohibits unfair or deceptive advertising in any medium. That is, advertising must tell the truth and not mislead consumers. A claim can be misleading if relevant information is left out or if the claim implies something that's not true.

Additionally third parties -- such as advertising agencies or website designers and catalog marketers -- also may be liable for making or disseminating deceptive representations if they participate in the preparation or distribution of the advertising, or know about the deceptive claims. (Reference link below).

We have recently become aware of one of our ergonomic mouse competitors making assertions of 100% compliance with Section 508 law despite the fact that their products are normally used in the palm down or pronated position. This "twists the wrist" (technically the forearm is twisted and wrist rotated). Some of their products listed, as do most conventional computer mice in our opinion, require "pinch," which in the case of computer mice is to grip between thumb and little finger with those digits extended. Section 508 Law, subsection 1194.23, relating to operable controls states, "Controls and keys shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate controls and keys shall be 5 lbs. (22.2 N) maximum."

The complaint alleges that the unnamed company has inaccurately completed their Voluntary Product Accessibility Template (VPAT). In regards to two products listed: they positively state that no twisting is required, despite a video of the products use showing the pronated wrist twisted posture. In a second product range it states that some pinching force is required, which is at odds with the law, yet 100% compliance is still claimed. For the same products; a statement that a natural shape results in "no twisting is required to operate." What this actually means we are unsure of but in regards to meeting the standard of no pinch or wrist twist, it, in our opinion, does not.

For a third conventional mouse product the VPAT statements omit any commentary as to pinch, grasp or wrist twist.

In a second complaint to the FTC we reported the GSA's Center for IT Accommodation (CITA) who manage and operate the Section 508 website. While we view this as an unfortunate step we feel it is a necessary one as after reporting our concerns, as to the representations of the competitor cited in the first complaint, we were advised verbally that nothing could be done. Vendor representations are not substantiated and disclaimers are posted as to that fact.

It is our opinion that as Section 508 is a Law it should be fully enacted by the "executive" so as to protect those for whom the law was passed. In regards to consumer standards; the design for the VPAT forms was orchestrated by CITA and they are designed to prompt vendors as to what should be discussed so as to confirm compliance. This, in our view, is "active participation in the preparation of the document." The Section 508 website promotes Accessibility, inviting vendors to advertise their products compliance and then acts to disseminate that information. It could therefore be considered an advertising agency. In that event it would be subject to FTC law yet as it stands takes no responsibility for the content that it displays. It is our belief that if Federal Government acts as a marketing agency for vendors then not only should they meet the minimum FTC standards, but to protect the rights of Federal Employees and non-government citizens with disability, they should be held to a higher standard and be seen to uphold the law without which this GSA department might not exist.

In the event that the complaint to the FTC as to this competitor is upheld, it will demonstrate that CITA's "self assertion" policy in regards to vendor representations has failed with a consequence that not only are Federal Employees not getting the products prescribed under the law but civil rights could be one day seen to be being violated.

We have forwarded our concerns as to this matter to two Unions who collectively claim to represent almost three-quarters of a million Federal & D.C. Government employees.

Designer Appliances, Inc., a wholly owned subsidiary of Torbay Holdings Inc., is leading the way in the development of Anti.Fatigue™ tools and technologies to manage the impact that fatigue is now understood to have upon computer users. Anti.Fatigue™ design conforms to Universal Design criteria and produces products that are more "Accessible and Assistive" to all, including persons with dexterity impairment or disability. We are all capable of fatigue.

Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995: The statements contained in this release that are not historical, are forward-looking statements that are subject to risks and uncertainties that could cause results to differ materially from those expressed in the forward-looking statements, including but not limited to, certain delays and risks detailed from time to time in the company's filings with the Securities and Exchange Commission.

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