June was a bad month for miracle diet spray SensaSlim. To date I’ve only published The Sensaslim Affair by Ken Harvey, SensaSlim Jockeying for credibility, Beware the lure of new treatments – a very pragmatic piece by Professor John Dixon and Louisa Hall’s piece – which I’ll get to.

We know that Dr. Ken Harvey is one of seven, perhaps nine, complainants and that Professor Lesley Campbell, from the St Vincent’s Hospital diabetes centre is another. As can be read in the above the complaint was simple in that SensaSlim was making ridiculous claims of efficacy. In the absence of any evidence – the much hyped “research” has still not been validated – the claims were most likely fabricated.

Almost certainly others are franchisees left out to dry with their investment. SensaSlim had promised marketing and advertising help which never eventuated. Dr. Harvey was being sued for $800,000. On June 14th the case came before Defamation List Judge, Justice Lucy McCallum, in the Supreme Court at Sydney. The following consent orders were made by Justice McCallum, and published on the Support Dr. Ken Harvey Facebook page in response to SensaSlim’s Australian manager Adam Adams’ rather biased, if not gloating account. The thread has since been deleted by Adams:

• The plaintiff file an amended statement of claim on or before 1 July 2011;
• The defendants file a defence on or before 15 July 2011;
• The plaintiff file any reply on or before 29 July 2011;
• The defendants’ notice of motion dated 24 May 2011 be dismissed;
• The plaintiff pay the defendants’ costs thrown away by reason of the plaintiff’s amendment to its statement of claim;
• The proceedings be stood over to the defamation list on 15 August 2011;
• The parties have liberty to relist the proceedings in the defamation list on 11 July 2011.

Basically this meant Dr. Harvey had not had the charges thrown out. The plaintiff – SensaSlim – was to file an amended claim by July 1st. SensaSlim thus had to pay Dr. Harvey’s costs because of their amended statement of claim and there was another opportunity on July 11th for potentially seeing the case dismissed. On June 17th, Louisa Hall writing for Fairfax noted the appalling situation that had allowed this action to come about.

Primarily that if any court action is underway complaints lodged with Australia’s TGA against the plaintiff can not be pursued through the Complaints Resolution Panel – CRP. This allows ongoing selling of, and profitting from, the product through it’s “outlandish” claims. Libel cases may take over a year leading to significant income for what may turn out to be a scam. This is a major flaw in TGA legislation. They will only invoke Section 30 of the Australian Therapeutic Goods Act, 1989, which would make ongoing selling and advertising illegal, when the company itself is deemed to be acting fraudulently. This would also remove SensaSlim from the Australian Register of Therapeutic Goods. But as noted here before, presently the TGA care not if a product works: only if it considered to be of acceptable risk.

In the article by Louisa Hall SensaSlim’s legal adviser, Terry Harrison denied the entire defamation suit aimed to gag Dr. Harvey. Interestingly almost two weeks before, SensaSlim Newsletter number 42 was falling into the odd lap. Written by Adam T. Adams – Australian Manager, it contained reference to the CRP in stark dissonance to Terry Harrison’s assurances.

It gives alarming insight into the arrogant stand-over talk directed at Area Managers, who no doubt smelled a rat months before. They had threatened legal action in lieu of repayment of their investment. Adams names them all [I won’t] and claims his legal advice is that this action is fatally flawed. These poor investors were left with the sole option of trying to sell their entire Areas and then… go away. What’s interesting is that the legal team acting for the disgruntled Area Mangers had included a CRP determination from March 30th, 2011. “CHC” is the Complimentary Healthcare Council. [Bold Mine except in red]. Adams wrote in part;

But that’s not the issue I want to make. The issue I want to make is in the letter [the law firm] said has (sic) follows. One of the reasons they [Area managers] wanted “out” was:

“… determination published by the Therapeutic Goods Advertising code complaints resolution panel on the 30th March 2011, clearly found examples of inconsistencies of many representations, (our client are certain that the fact that this panel will now review SensaSlim’s responses to the complaint, which were only received by the panel on the 30th March 2011 and issue a new determination, which our clients are confident will not materially change nor effect the existing determination)”.

You will be aware that I told you that Peter O’Brien was able to have the Complaints Resolution Panel withdraw their published determination. This was mentioned in Newsletter 38, where I advised:

“On Wednesday we received a phone call from a Area Manager, “DP”, saying that the Complaints Resolution Panel had brought down a decision and published it on their website in regard to a complaint about the SensaSlim website. We mentioned this to you previously that our competitors were filing complaints with a view to hindering our progress.

David directed us to the CHC website and a report had been published. Except the report stated that the CHC had found against the company because we haven’t filed a defence. Except we did file a defence on the 25 of January and again when confronted with this crises Peter O’ Brien swung into action with his legal teams and within one hour the CHC had taken the report off their website and agreed that the report is now redundant and that they would withdraw any ruling against SensaSlim”. But back to this week…

So the lawyers for the above Area Managers said that they were ‘confident’ that a review by the Complaints Resolution Panel will not change anything. They, [names deleted]  were ‘confident’ that the company would still be found to be at fault by the Complaints Resolution Panel. Is that ‘confidence’ built on anything except negativity or pessimism? I don’t think it is.

But they were SO WRONG.  So very very WRONG.

So here’s the good news. Last week Peter O’Brien was at his desk until 11pm the night before the CRP were to reconsider the matter, and back at 5 a.m., drafting, redrafting and writing a 9 page submission. With the assistance of his legal team and SensaSlim in London’s lawyers a very comprehensive submission was written stating that the CRP had absolutely no justification at law in adjudicating on the matter since the company had filed an $800,000.00 defamation lawsuit against Dr. Ken Harvey.

You see, it is written in Law that if the subject matter of the complaint is currently the subject of court proceedings, then the CRP are unable to adjudicate. I have attached a copy of the submission just so you get some understanding of the work, the very hard word that is happening behind the scenes that you never see, to uphold the good name of SensaSlim.

So when I read that Area Managers think that the management of this company would be best served if we were replaced by them, and there were others at the helm I think it is absolutely laughable. Too silly for words, really! “TB” who suggests such an action and thinks he could run the company better, is the one who said that they were confident, the CRP would find against us.

Peter O’Brien didn’t accept such a fate but together with his lawyers (by the way Robbinson Legal are the lawyers who acted for Paul Hogan in his case against the ATO, so they’re not frightened of a stoush either) found a way to defend the company. This defamation action, which could be in the courts for a year or two or even longer, basically gives an iron clad protection that nobody can raise a complaint against SensaSlim to the CRP and hurt us.

There are nine complaints that were received in a three day period two weeks ago. These were not complaints by members of the public, but clever legal crafted arguments by people acting on behalf of our competitors and big pharmaceutical companies. These are the same people who have written to the CHC to delay and hinder our progress and having our advertisements approved..and they also wrote to the TGA.

But let me say this. We will not allow their dirty tactics defeat us. We had a very big win this week with the determination by the CRP that they cannot adjudicate on any matters pertaining to SensaSlim.

It was known widely that the CRP decision was published, and then apparently removed within an hour or so. The reason given by the CRP was that SensaSlim claimed to have not been notified. That they never received email notification of the decision and thus did not file a defence. Yet above Adams is telling his own investors they did file a defence, the CHC got it wrong and Peter O’Brien “swung into action”. Confusing. We’ve also got a Big Pharma conspiracy and the lie that “competitors” are behind the “clever legal action”. Finally, there’s no ambiguity about legal action stifling complaints.

But there was more fun to be had. Over much of the first three weeks of June I was corresponding with an editor from Australia.to, a sub domain of World News site http://www.international.to/, a service of RogersDIGITAL.com, which had been “reporting” frequently and favourably about SensaSlim. Rogers Digital specialise in providing advertising techniques including brand direct response and behavioural targetting. They “deliver a diverse audience for advertisers including… women and men of all ages, shoppers, travellers and business and IT professionals”. Their advertising opportunities aim to meet “all the needs of marketers”, via websites “which reach ‘buy-ready’ customers”.

The reason for the correspondence was in response to my concern over a “news” article by a Peter O’Brien about the Jockey weight loss affair. Including;

The jockey of super horse Black Caviar has admitted using the controversial slimming spray as his secret weapon allowing him to calm his nerves, forget about food cravings and focus on Black Caviar, but critics warn that this could lead to unexpected excess weight loss and potential disqualification.

“I am aware of the law suit, but the benefits outweigh the risks,” Nolen said. “This has been a lifeline to many jockeys.”

The Thank you for suing us ad was also published. Both articles were under the sites “your say” URL’s. The advertisement, first published June 5th in The Sunday Mail, lacked a Complimentary Healthcare Council number, suggesting SensaSlim wasn’t accredited. Both the CHC and ACCC say this accreditation aims to provide;

“…. reliable and quality advice and information to our members, government, key stakeholders, the media and consumers.”

Correspondence dried up about the same time I spelled out the problems with SensaSlim’s “white paper”, and the fact Dr. Capehorn who was being used to endorse the product refuted that he made any comment supporting the jockey weight loss stunt. I also spelled out that Capehorn had quit his role with SensaSlim and issued statements through his lawyers. More so there were problems with Australia.to publishing even more articles claiming SensaSlim was represented at the 18th European Congress on Obesity in Turkey. I’ll get to that directly.

Interestingly the Thank you for suing us ad piece and the Black Caviar jockey piece by Peter O’Brien have disappeared. Follow those links and you get a 404. The following day I raised concerns with the editor about an article headed, “Obesity scientists told of SensaSlim slimming spray that has the effect of ‘Fooling the Brain’ into Thinking You’re Not Hungry” and another headed “Four Twins, a Jockey and a sensational slimming spray talk Turkey”. I received no reply. Ironically, both these articles now deliver a 404 message also.

I also asked Adam Adams to explain this claim of SensaSlim representatives attending the conference on the Support Dr. Ken Harvey Facebook Page on June 17th. By this stage most knew there was almost certainly no “evidence”, and it had become clear SensaSlim were not even at the Obesity conference. One complainant had attended the conference. Asked about the SensaSlim claims this person replied that none of the “so-called staffs said to have presented the work” could be found in the Congress abstracts. Secondly, no SensaSlim scientific presentation was witnessed. Thirdly, whilst there were outside booths at the conference at which weight loss products and devices may be advertised without any evidence, SensaSlim had manned none of them.

What happens next – June 22nd onwards – is well known, but also very funny in respect of SensaSlim’s June 21st newsletter written by none other than the elusive Peter O’Brien himself. Given time differences it would seem that the ACCC were moving to freeze SensaSlim Australian accounts at much the same time O’Brien opened his newsletter with “Hello Everyone, The  cavalry is on the way.” I’ll cover these events next with a look at the ridiculous “settlement” for the Black Caviar jockey stunt. For now a review of the ACA programme that pulls together the vital flaws in this blatant scam.