The Federal Court in Perth has declared that Slendertone Health & Beauty Pty Ltd and Emerald Ocean Distributors Pty Ltd engaged in false and deceptive conduct and made misrepresentations when promoting the Slendertone electronic muscle stimulation products.
The court found that representations by the companies in the Women's Health and Ultrafit magazines, as well in the Slendertone pamphlet and on its website, that the Slendertone EMS product could:
- tone and firm any part of the body with no effort by the user
- provide the user with the benefit of a workout without exercise
- reduce the user's weight
- reduce the user's body measurements by an inch or more
- give the user, in 40 minutes per day, the equivalent of 300 general exercises
- flatten the user's stomach without effort, and
- eliminate or conquer cellulite
were not supported by evidence and contravened the consumer protection provisions of the Trade Practices Act 1974.
Justice Nicholson found that the evidence established that the Slendertone EMS products did not reduce body fat and that, without any qualification, it was misleading to speak of the Slendertone EMS products as having the ability to tone the body.
He also found that any claims that the Slendertone EMS products could eliminate or conquer cellulite or reduce a user's body measurements were also unsustainable based on the evidence, including the manufacturer's evidence.
The court also declared that Mr Sean O'Donoghue, the sole director of both companies, was knowingly concerned in the company's contraventions.
"While the ACCC accepts medical and other health sector companies have greater opportunities today to communicate directly with consumers through advertising, they must not make efficacy claims without ensuring those claims are supported by appropriate research", ACCC Chairman, Mr Graeme Samuel, said today.
"Among the areas where medical, health sector professionals and health sector companies must proceed with caution are: disclaimers and qualifications; omission of important information; the use of 'fine print'; exaggerated and unsubstantiated claims; advertising requiring or suggesting self-diagnosis; use of titles and qualifications; use of testimonials and photographs; and claims about certification, approval, price, costs and time.
"Consumers deserve to be fully informed when making purchasing decisions in this area", he said. "The ACCC has achieved a number of substantial outcomes in this area over the past few years, including this judgment.
"These have included the advertising or promotion of impotency cures, weight-loss cures, hair removal claims, laser eye surgery and 'miracle cures', including therapeutic 'ion mats'.
"This case also highlights the need for companies importing goods to ensure that they can support the claims being made. Local distributors which simply repeat the claims made by an overseas supplier, without testing, run the risk of breaching the Act. Representations made in Australia are subject to Australian consumer laws and these may differ from laws in other jurisdictions where the supplier may make the same claims".
Justice Nicholson also made orders against Slendertone and EOD restraining them and Mr O'Donoghue from making similar claims in the future; for Mr O'Donoghue to attend a trade practices law compliance seminar; for the companies to publish corrective notices in the Women's Health and Ultrafit magazines, two prominent newspapers and its website to inform the public of the court's decision and to pay the ACCC's costs.
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