Weight-loss promoter fined $9000 for contempt of court

The Federal Court has fined a promoter of weight loss products, Mr David Francis, $9000 for contempt of court.

The Australian Competition and Consumer Commission instituted contempt of court proceedings against Mr Francis on 31 October 2002 for failing to comply with orders made by the Federal Court on 3 November 1997. Those orders followed ACCC court action against Mr Francis for his involvement in alleged misleading or deceptive claims made in the promotion of a series of products that were represented as being able to assist in weight loss. The orders prohibited Mr Francis from making various representations in relation to those products and other products promoted as methods or aids to slimming.

The ACCC alleged that Mr Francis was guilty of contempt of court because during 2001, in promoting three products that were represented as being able to assist in weight loss, he made certain unsubstantiated claims that he was prohibited from making under the previous court orders. The products promoted were:

• a moulded plastic device called ACU-SLIM 2000 which was designed to be inserted into a person’s ear. It was claimed that use of ACU-SLIM 2000 could eliminate craving for food;
• a report called "Foods That Can Cause Weight Loss". It was represented that the report included a list of 19 foods with "negative calories" and that the consumption of such foods could cause weight loss by burning more calories than they contribute to the person eating them; and
• a wafer biscuit called "ThermoSlim" which was represented as being able to cause weight loss by burning the body's fat.

The Court found that the ACCC had proven that Mr Francis had committed contempt of court.

In addition to imposing a fine on Mr Francis, the court ordered that Mr Francis pay the ACCC's costs of the contempt proceedings on an indemnity basis.

Justice Ryan in delivering his judgment stated that in deciding to impose a fine of $9000 he took into account a number of mitigating circumstances which significantly reduced the fine he may have otherwise imposed. These factors included the poor financial position of Mr Francis and his decision not to contest the contempt charges.

"The conduct which is the subject of the contempt proceedings was of great concern", Acting ACCC Chairman, Mr Ross Jones, said today. "In particular, the advertisements and promotional material in these proceedings were virtually identical to those which were the subject of the previous court orders against Mr Francis.

"This case again demonstrates that the ACCC will vigorously pursue parties who do not obey court orders and that the Court will not lightly tolerate its orders being disobeyed".