Appeal over ads raises weighty issues

The marketers of Body Enhancer are appealing against 23 convictions for making misleading statements about a so-called weight-loss supplement, alleging the judge was biased.

Zenith Corporation and its directors, Sylvia and Winston Gallot, yesterday filed an appeal through lawyer Barry Hart.

This week Zenith Corporation and Mr Gallot were sentenced to pay a total of $792,000 after it was convicted on 23 charges under the Fair Trading Act for claims it made about the benefits of Body Enhancer, between March 22, 2000, and December 18, 2002.

The sentence included fines, legal costs and corrections to be run in newspapers and on Radio Pacific.

The points on appeal included that the judge - Judge Lindsay Moore - had treated Winston Gallot cruelly and disproportionately under the Bill of Rights Act and that the judge was biased and predetermined the case.

Mr Hart said the appeal was filed "because the decision was wrong".

The grounds listed in the appeal also include errors in the admission of evidence, and the interpretation of the law and of the facts, as well as excessive delays in the trial of the case.

Zenith was prosecuted in May 2004, and in June 2005 was convicted in Judge Moore's reserved judgment.

In his substantive judgment in July last year, the judge said there was no proof the product worked and Winston and Sylvia Gallot had capitalised on a vulnerable market.

"They saw, seized on and exploited an opportunity to make very large profits. From that they were not going to be deterred. If charm seemed likely to work, they used charm; if lies seemed likely to work, they used lies; if aggression seemed likely to work, there was no shortage of that."

In its advertising at the time, Body Enhancer was claimed to assist fat burning, muscle growth and liver detoxification.

It was also said to help build bones and tendon cells, heal cartilage, strengthen joints and heart muscles, break down fat and control appetite.

However, Judge Moore said the scientific trials Zenith claimed to have done were not adequate and that Body Enhancer did not "confer upon its users any of the benefits alleged".

Judge Moore also criticised Zenith for its current selling of Neo Nutrients Body Enhancer - a product which made similar weight-loss claims, which Zenith said was a completely different product.

Judge Moore said any changes seemed purely cosmetic.

The sentence was the highest imposed under the Fair Trading Act for a weight-loss supplement.