Advertising Law Blog

Court imposes three year ban on marketer for participation in production or publication of any infomercials, for products including any books or publications in which he has an interest.

An angry United States District Court in the Northern District of Illinois found Kevin Trudeau in contempt of its prior Injunction because he had misrepresented the contents of his book, The Weight Loss Cure "They" Don't want You to Know About in several infomercials. The court found that the weight loss book was falsely described as an "easy" "simple" protocol, that once finished would enable the user to eat anything he wanted for the rest of her life.

The court found that nothing short of an outright ban for a reasonable period of time would suffice to get the defendant to obey the order of the court to limit the content of his infomercials to non-misleading claims about his books. Although mindful of the need to honor the first amendment's protection of non-misleading commercial advertising, it did not trump the public's interest in obtaining compliance with federal court judgments.

As is usually the case, the FTC requested that judgment be entered for the full gross revenue received, and that Trudeau reimburse the full amount of all book purchases, more than $46 million. However, in an unusual twist, the agency alternatively requested only the profit that he made. The Court entered judgment for $5.1 million, the amount of royalties that the defendant had received, and ordered that sum to be disgorged.

Practice Point: This is one of the few times that the FTC has strayed from its dogmatic request that the proper remedy for any violation of the Act is a judgment for the full amount of the gross revenue received, less only refunds. Perhaps by concentrating on the issue of profits, it might be able to settle more cases at an earlier time.