Weight-loss couple hits back at quackery claims

Winston and Sylvia Gallot say the product they promote has now changed. Picture / Herald on Sunday

Rachel was getting frustrated. Because of a medical condition she had put on 30kg in in a few months - and five years later the weight hadn't budged.

She wanted a better job but says she was passed up while her slimmer counterparts seemed to get positions easily.

In tears, she confided to a friend in the staffroom. The woman told her about a product called Body Enhancer, a protein drink which she believed had helped her lose weight.

"I thought it couldn't possibly work, but I decided to try it anyway because I was so desperate."

Rachel (not her real name) says she has been taking it for seven months and has lost 29kg - and has a better job. She credits the product with giving her back her career and lifestyle.

"Just this morning my new size 12 jeans nearly fell down," she says, "and I bought them only a month ago."

Wendy was doing pretty well with her weight loss routine. With exercise and a sensible diet she lost 25kg, but she was having trouble shifting the last 10kg.

The 39-year-old, who doesn't want her surname published, heard Body Enhancer promoted on radio and read an advertising flyer about it. It sounded promising.

"I just thought, well, I'll give it a crack, and if it works it works and if it doesn't, that's my loss."

Wendy bought four months' supply for about $300. Following the recommendations of Zenith Corporation, which sells the product, she also maintained a sensible diet, exercised and drank at least two litres of water a day.

She says she wasn't extremely fat and wasn't expecting a miracle cure but was disappointed when the product did nothing for her.

"I just feel like a bit of a dick for spending my money on it. And it tasted like crap."

She was not surprised when she heard last week that Zenith was found to have breached the Fair Trading Act in its early promotions of Body Enhancer.

In the Auckland District Court, Judge Lindsay Moore delivered a scathing 96-page judgment declaring the company had made false and/or misleading claims in its pamphlets, its advertising and on its website, and information printed on its labels, between early 2000 and late 2002.

Moore says Body Enhancer is yet another aggressively promoted magic bullet cure for obesity.

"The product Body Enhancer has been proved beyond reasonable doubt not to be suitable for any of the purposes claimed and not to confer upon its users any of the benefits alleged. There is an overwhelming sense that it and its precursors were designed to be advertised rather than to achieve results."

The Weekend Herald spoke to 10 users of Body Enhancer - tens of thousands of New Zealanders are said to have used it. Their views were divided between those who defended it passionately and those who thought it was a con. One said it hadn't worked but he did not have strong views either way.

Most of them have used the product since 2002.

Zenith's owners, Winston and Sylvia Gallot, say they have changed their advertising since 2002 and the product they promote today is completely different from the one they began selling in 1998.

That's not to say they admit that the early product was deficient, just that there were "problems with what we said about it".

"This case has nothing to do with Body Enhancer today. It's a historical case. But despite that we stand by our early product," says Sylvia Gallot, an impeccably dressed and made-up Castor Bay woman in her 60s.

"I could not sell something I didn't believe in. I could not."

She says she and her husband have been personally attacked - by the Commerce Commission, the judge and the Herald, which first reported the judgment last weekend.

"If you got into trouble and you're a thief or a burglar, you've got what's coming to you. But if you try to do your best for society you don't ever expect to get involved in anything like this."

The "this" she refers to is the largest prosecution of its kind in New Zealand, says the commission. The company could face a six-figure fine when sentenced at a date yet to be fixed.

Sylvia Gallot is a former science teacher and associate deputy principal of Kelston Girls Grammar. Her equally well-turned-out husband, Winston, is a former geologist-turned-exporter.

About 1997, a manufacturer Winston Gallot had been dealing with, Immuno, brought a new product to him.

It was a protein drink made of natural ingredients, including aloe vera, glycerine, collagen and whey protein. A similar product, Calorad, had netted a Canadian company more than $US200 million ($280 million).

The Gallots began marketing Body Enhancer in New Zealand in 1998. They say they relied on information from Immuno for their first brochure.

Sylvia Gallot says they later did a monitoring exercise that showed 93 per cent of their customers reported losing weight - 9kg on average - after six months.

By September 1999 their troubles began. The court judgment shows they were sent a letter from Medsafe, a Government body charged with the regulation of therapeutic products, warning them their leaflet indicated Body Enhancer had a therapeutic purpose but it didn't comply with regulations.

Medsafe asked them to stop distribution of the product, recall it and stop advertising it. Sylvia Gallot says she doesn't recall getting the letter.

Two weeks later the Advertising Standards Complaints Board upheld a complaint about an advertisement for Body Enhancer on Newstalk ZB in which product users endorsed it.

"What an easy way to lose weight, just take it when you go to bed at night and it's so easy," said one of the consumers.

Another said: "Just take a beautiful cherry-flavoured liquid at night and that does the work."

A week later the commission knocked on the Gallots' door.

But far from recalling the product and its advertising, as Medsafe had requested, the Gallots ploughed on.

If you listened to Radio Pacific and Newstalk ZB around that time, you couldn't miss Body Enhancer's prolific advertisements. Most of the consumers the Herald talked to had heard them and say they played a part in their decisions to buy.

You might have caught a half-hour "lifestyle programme" on Radio Pacific.

This is what you would have heard host Trish Allen say: "So many of us want to lose some weight, we want to lose some inches, we want to lead a healthier life. If this is you, then you have to use Body Enhancer Plus, which is a weight loss product based on sound nutritional advice with a proven record of success to back it up.

"The results people have been getting on the new Body Enhancer Plus have been amazing and you, too, can lose weight and lose inches by taking this new formula product. And you can expect to keep weight off and burn up the unwanted fat from your daily food intake."

Then you would have heard five customers provide seemingly spontaneous positive testimonials. What you wouldn't have known was that Winston Gallot wrote that script for Allen, and Zenith selected the callers months earlier.

The "programme" wasn't a paid advertisement as such, but it was part of a promotional package which involved Zenith committing to substantial paid advertising.

Winston Gallot was allowed to write word for word what he would say and what Allen would say. The programme formed part of the evidence against Zenith.

Allen's introduction was followed by, to use the judge's words, a "succession of exercises by a gushing announcer in creating opportunities for Mr Gallot to extol the virtue of Body Enhancer in extravagant and detailed terms which, all else apart, conveyed a clear message that using the product would result in very substantial weight losses".

In his unusually impassioned decision, Judge Moore says one of the fascinations of criminal law is how often apparently intelligent and prosperous people are taken in by fraudulent schemes.

"The nature and extent of the obesity problem is such that there is a very large vulnerable section of the population who provide an obvious and profitable target for remedies claiming to produce weight loss without dieting and lifestyle changes."

He says the Gallots were considerably shrewder, tougher and more determined than those they dealt with.

"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, then there was no shortage of that."

It's not the first time a judge has been scathing about the promotion of a weight loss remedy. Just as Body Enhancer went on the market in 1998, the Commerce Commission prosecuted a company called Health Pride Ltd under similar charges over their Fat Buster and Hunger Buster pills.

The judge in that case, Judge Michael Green, said obese people were frequently driven by societal pressures to want to lose weight.

"Many of them want to do it by some easy method; all the harder and accepted remedies having been tried in the past and have failed, normally because of the difficulty in maintaining a sustained regime.

"They are driven to quackery in the hope of easy success. They may even be aware that they are being gulled but, nevertheless, try the latest remedy in the wishful hope that it will succeed."

Health Pride went out of business. The Gallots hope things won't come to that. So does Judy, 55, who has used Body Enhancer for more than a year and says she has lost about 13kg.

"I just feel terribly sorry for the Gallots. I think they have produced something that's really good. And I don't think Winston would rip you off. He is so caring ...

"Poor Winston is just trying to help people." 

What Zenith claimed Body Enhancer would do and what

Judge Moore ruled:

Claim: Regular use of Body Enhancer will assist with weight loss through increased muscle mass and reduction in body fat increasing vitality and improving overall body strength.
Verdict: Patently false.

Claim: Regular use of Body Enhancer will assist with ... liver detoxification.
Verdict: False.

Claim: Regular use of Body Enhancer will assist with ... preventing the effects of body collagen depletion.
Verdict: False.

Claim: Healing of cartilage and strengthening of joints, tendons and heart muscles.
Verdict: False.

Claim: Body Enhancer contains a high quality protein in a very absorbable form that the body can use very quickly to help replenish and rebuild muscle tissue.
Verdict: Liable to mislead.

Claim: There are herbal extracts in Body Enhancer that will help to break down fat.
Verdict: False.

Claim: There are ingredients in Body Enhancer that will help control appetite.
Verdict: False.

Zenith was also convicted on claims made on their website in October 2000 and July 2001 and in advertisements in Eye magazine, and on misrepresentations on product labels. In total, the company made 26 breaches of the Fair Trading Act in its advertising.

Excerpts from the judgment:

* All the evidence before the Court ... emphasises the importance of the profit motive in the lives of Mr and Mrs Gallot.
* The Court is in no doubt that belief in the efficacy of the product was never their focus; their focus was the profitable exploitation of a marketing opportunity.
* Mr Gallot was obviously a man of considerable intelligence, style and charm. In evidence he continued to cast responsibility and blame on everyone except himself and his wife. He never completely lost his style or charm of manner, but he was exposed as calculatedly dishonest. By the time cross-examination was complete ... all the spring had gone out of him, he left the witness box with the air of someone defeated.
* The whole thrust of Mr Gallot's evidence was to cast all responsibility on to others, to convey a picture of himself and his wife as acting with integrity.
* Zenith had a clear determination to persist in making therapeutic claims for Body Enhancer without making any attempt to obtain the consent required by law. That says nothing about the merits of the present charges, but a good deal about the true state of mind of the directors of Zenith.
* Cross-examination tellingly chipped away at Mr Gallot's credibility and reliability. Clearly he and his wife were not the trusting innocents he set out to portray.
* He had an easy manner and persuasive charm. She had a quick, sharp mind and tongue.
* If she were called as a witness her credibility would be destroyed every bit as effectively as his had been, indeed probably in shorter space of time.