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Thursday, August 27, 2009

Ind. Decisions - An interesting non-Indiana opinion today from 7th Circuit

In Federal Trade Commission v. Kevin Trudeau (ND Ill.), a 55-page opinion, Judge Tinder writes:

If you have a problem, chances are Kevin Trudeau has an answer. For over a decade, Trudeau has promoted countless “cures” for a host of human woes that he claims the government and corporations have kept hidden from the American public. Cancer, AIDS, severe pain, hair loss, slow reading, poor memory, debt, obesity—you name it, Trudeau has a “cure” for it. To get his messages out, Trudeau has become a marketing machine. And the infomercial is his medium of choice. He has appeared in dozens of them, usually in the form of a staged, scripted interview where Trudeau raves about the astounding benefits of the miracle product he’s pitching. But Trudeau’s tactics have long drawn the ire of the Federal Trade Commission (“FTC”). By promoting his cures, Trudeau claims he is merely exposing corporate and government conspiracies to keep Americans fat and unhealthy. But the FTC accuses Trudeau of being nothing more than a huckster who preys on unwitting consumers—a 21st-century snake-oil salesman. For years Trudeau has dueled with the FTC in and out of court.

Trudeau’s latest run-in concerns his cure for weight loss, which he explains in his book, The Weight Loss Cure “They” Don’t Want You to Know About. By the time Trudeau began promoting the book, courts had sharply curbed his marketing activities. A consent decree banned Trudeau from appearing in infomercials for any products, except for books, provided that he did not “misrepresent the content of the book.”

That proviso forms the basis for this latest lawsuit. The FTC claimed that Trudeau’s Weight Loss Cure infomercial misled consumers by describing a weight loss program that was “easy,” “simple,” and able to be completed at home, when in fact it was anything but. The program requires a diet of only 500 calories per day, injections of a prescription hormone not approved for weight loss, and dozens of dietary and lifestyle restrictions. The district court sided with the FTC, concluded that Trudeau had misrepresented his book, and held Trudeau in contempt. As sanctions, the court ordered Trudeau to pay $37.6 million and banned Trudeau from appearing in any infomercials, even for books, for the next three years.

Trudeau appeals everything. He argues he should not have been held in contempt because he merely quoted his book and expressed his opinions. And he contends that the court’s sanctions were not appropriate for civil (as opposed to criminal) contempt proceedings. We disagree with Trudeau about the contempt finding—he clearly misrepresented the book’s content—but we are troubled by the nature of both the $37.6 million fine and the infomercial ban. So we must remand those aspects of the court’s judgment.

Posted by Marcia Oddi on August 27, 2009 01:10 PM
Posted to Ind. (7th Cir.) Decisions