Jillian Michaels and Basic Research, the class action suit
First and foremost I want to point out that anybody can sue anybody else. There really isn’t any news here, yet. The online reports of this incident make it sound like yesterday Jillian Michaels was a well respected trainer selling fantastic diet pills and now that she has been named in a suit she is a tawdry snake oil pill salesperson out to con people. You know that I think she has been the snake oil seller all along, but really it is strange to see this massive swing in public opinion and tone of news just because she was named in a personal lawsuit. This isn’t even an FTC action. As we all know, she is innocent until proven guilty.
But will she be found guilty, that really is the question. The actual suit can be found here. Although the notion of suing a diet pill company because you don’t lose weight appears on its face absurd, after a little review this case actually has merit. As most of you know, I feel that the true crime perpetrated by Jillian Michaels and Basic Research is her cleanse and detox. I stayed away from appetite suppressants and caffeine pills because it is possible that they could work. Still, I have seen these things for sale for years and nobody is losing weight, so I seriously doubt they have any merit. Still, it is possible. The crux of the lawsuit though stems from claims that Jillian Michaels made, specifically:
- “Take Two Capsules Before Main Meals And You Lose Weight. That’s It.”
- “like an automatic diet. What could be easier!”
- “[it will] restrict your caloric intake automatically.”
These may appear to be innocuous exaggerations, but they are a lot more than that. In fact, In Christie Christensen’s first course of action against JM &BR, she alleges that the Defendants’ wrongful business practices constituted and constitute a continuing course of conduct in violation of the California Consumer Legal Remedies Act since Defendants are still representing that their products have characteristics and abilities which are false and misleading, and have injured Plaintiff and the Class. As well, in her Second Cause of Action, she is claiming that JM & BR’s actions constitute an unfair or deceptive business practice within the meaning of California Business and Professions Code section 17200 in that Defendant’s actions are unfair, fraudulent and misleading.
So, the core of this case is that Jillian Michaels has false advertising that the Plaintiff depended on in purchasing her product. That is the issue for the court do decide. If she is falsely advertising her product, then the other components of the case fall into place. She clearly paid money for the product, and by not receiving the promised benefits she was damaged, not only by losing the money she invested, but much more importantly, she will be able to trot out experts that will testify that failing to lose weight repeatedly to diets that don’t work will reduce your ability to lose weight in the future and further with lower your self esteem, quite often resulting in depression.
The FTC has recently taken action against Basic Research for a separate product that they are selling. It is called Akavar (it appears to be one of several product that they are being charged with, and not surprisingly another product they are facing a class action lawsuit about). The FTC action has been taken in part because of a claim that Akavar makes regarding its effectiveness. Specifically:
- “Eat all you want and lose weight…And we couldn’t put it in print if it wasn’t true!”
- Automatic calorie restriction
- Akavar 20/50 reduces caloric intake…automatically!
The statements are remarkably similar. When the FTC makes a claim against you, you have seriously made it to the bottom of the heap of disreputable advertisers, but there is a significant reason why the FTC claim may not support the Jillian Michaels suit. The FTC has already reached agreement with Basic Research over past violations and this settlement included the promise to stop advertising products without evidence of support.
The studies that they cited in their claims for Akavar, the FTC is saying, do not support their claims. It is entirely likely that Akavar is the same exact product as Jillian Michaels and it is likely that the studies that they are claiming support Akavar are also the studies that Jillian Michaels is going to be depending on. It is unlikely that any evidence exists to support claims that any diet is automatic and that just taking two capsules is all you need to do. That is tremendously unlikely.
In fact, Jillian Michaels’ fans are very clear that you would have to know that it isn’t that simple. They are posting on websites that Jillian Michaels has said you need to include exercise and a healthy diet with her products. I have witnessed this as well, as Jillian Michaels has posted to facebook that these pills are to be used as part of an exercise and good eating strategy. The thing that will bite Jillian Michaels here is that her packaging doesn’t say this. Her packaging says automatic weight loss. No studies exist that say when you give one group these pills and another group placebos, the first group loses statistically significantly more weight than the second. Without that study, and with her contrary statements, things don’t look good for Jillian.
If a judge looks at it this way, then he or she will have no choice but to rule against Jillian Michaels and Basic Research. The class action suit against Basic Research for Akavar looks a little more cut and dried though. You can read the action against them here. Still, the parallels are disturbing.
So, for anyone saying that you can’t sue because you don’t lose weight, that isn’t what this lawsuit is about. It is about false advertising. Again, I find the advertising for the cleanse and detox much more vile and deceptive, but the claims that it makes are mostly make-believe. Feel Lighter… reduce belly bloat… reduce body waste build up… It may as well include, ‘get rid of unwanted unicorns, and drive away those uggy feelings.’
Finally, nobody is bothered more about frivolous lawsuits than I am. On the face, this looks like just one of those cases. It isn’t. As with the Akavar lawsuit, the class action suit by a private citizen is now the only way you can stop a company from advertising falsely. The FTC suit is just a follow up to a violation of a previous agreement. They have so much trouble taking anyone to court because people get angry when large government organizations try to ‘restrict trade’. The Senators who work very hard for companies like Basic Research get mad at the FTC and they are told to stop. It may not happen exactly this way… but the end result is the same. The only way to take action against these companies is a class action suit.
I wish it weren’t that way, but it is. The $5,000,000 anticipated value of the suit won’t slow down Jillian Michaels, as she is claiming that she pulled $150 million this last year, but this is in the ballpark of the $3,000,000 settlement that the FTC came to with Basic Research in 2006. Because government isn’t doing its job, something that 75% of respondents of a recent study want (more protection from deceptive advertising), individuals are. So, look at the class action as the citizen’s arrest of bad companies.
Unfortunately, these things settle so often and I am willing to bet that despite Jillian Michaels tough words, this will be settled quickly and quietly. She doesn’t want to answer the questions that I have been asking for months, certainly not to my small audience and doubly so to the reach of blogs like TMZ! Additionally, given that Consumer Lab’s, the independent testing agent for supplements, has reported that 1 in 4 supplements on the market don’t contain the active ingredients that they claim or contain contaminants, and these supplements include reliable products like One a Day and Centrum, a company with as checkered a past as Basic Research probably does not want their products analyzed for quantities of ingredients. There is nothing preventing the plaintiff in this case from analyzing the product. I am not a lawyer, but it would seem to me that if the product turns out to not contain the active ingredients in significant quantities, the lawsuit is over, plaintiff wins, Basic Research looks very bad and Jillian Michaels has to admit that she chose a bad partner. I am thinking that if I was Jillian Michaels and I was in this mess, a settlement looks better than taking that chance.
In any case, when Jillian Michaels got into bed with Basic Research she made a decision that hurt her credibility. When you look at the advertising for Akavar, you realize that Basic Research isn’t the kind of company you want making your supplements. For her to have partnered with them, it isn’t surprising to find herself in court. I really bear her no ill will, but I would like her to cease from selling diet pills that haven’t been found to help anyone. Please stick to the 30 day shred series. People really like that program.
What do you think? Do you think her advertising crossed the line?