Federal Court of Australia makes interim orders concerning SensaSlim solution

More SensaSlim posts here

Oh, Oh, Oh, O’Brien of SensaSlim gives us more hanky panky

Peter O’Brien, SensaSlim director and rumoured buddy of Peter Foster seems unable to break the back of his attention seeking behaviour.

Peter O'Brien

Firstly however, the good news is that the initial defamation case brought by SensaSlim for $800,000 against Ken Harvey was dismissed on Monday. Harvey was awarded costs but with a mere $280,000 in the SensaSlim kitty, he is unlikely to see any returns. There is quite a queue for payments from SensaSlim who misled investors on return potential. It turned out to be zero.

Five days ago we had a SensaSlim saga update which included reference to the press release-masquerading-as-news-until-you-read-the-disclaimer, of O’Brien’s intent to sue Ken Harvey for $1 million dollars. Like all the other articles O’Brien authored on international.to it is now a mere 404 page – and I’ll get onto that. There’s a section in the above post along with most of the disclaimer. It was a kind of desperate sales pitch, personal attack on Harvey and attempt to defend SensaSlim as a genuine product because TGA regulations are geared to prevent harm, not provide efficacy.

He’s right on the last point and the very fact this nonsense continues is a black mark against the “self certification” process of the TGA. This was raised during the recent transparency review of the TGA which you can read and catch up on here. With luck O’Brien has done Aussies a favour by exploiting this appalling hole in our supposed regulatory body for therapeutic goods. Frozen assets, links to crime figures, non existent research from non existent institutes, false claims about a dud product, duped investors, defamed obesity experts, fraud, [all earning ACCC charges of misleading and deceptive conduct under Trade Practices Act 1974], defamation cases dismissed, contempt of court (I’ll get to that also) and the product still remains listed with the TGA.

O’Brien need only insist that the ingredients have been proven and used in weight loss products (and he is), point to the TGA listing (and he is) and feign unfair criticism thus defamation on Dr. Harvey’s part (and he is) to keep making money from a useless product that was a scam from day one. The Australian reported on Tuesday that he is seeking $1.75 million in damages and costs. Check The Australian Skeptics for information on donations to help Ken Harvey or head on over directly to the designated PayPal account.

A TGA representative confirmed the SensaSlim listing as it has “no unsafe products”, and in a typical bureaucratic promise of a glacially paced plan, proffered;

However, the TGA is considering a number of matters regarding the listing of Sensaslim Solution on the Australian Register of Therapeutic goods.

Nonsense. Until the suit against Dr. Harvey (which is another S.L.A.P.P.) is finalised the Complaints Resolution Panel can do nothing. O’Brien continues to profit with the TGA’s blessing. On this point there is a brand new Get Up campaign launched by the founder of The Celestial Teapot skeptic group. Calling on state and federal governments to provide consumer protection from quacks and health scams. It’s a compelling argument and thankfully includes calling to account that Victorian government bastion of all things scam-worthy and useless The Better Health Channel – which tax payers fund. Other states have similar insults.

Back to O’Brien. Yesterday it emerged that the ACCC was launching contempt of court proceedings against Peter O’Brien. It was postulated he has sent more of those ridiculous and at times thuggish “newsletters” he and Adam Troy Adams favoured to franchisees, this time warning that cooperating with the ACCC might be financially costly. Yes you read that correctly. Cooperating with the ACCC to get back money SensaSlim scammed from them might be costly. However we now know the ACCC has been granted an injunction stopping this latest rather ambitious attempt to still scam his already hurting victims. O’Briens cavalry seem to have gotten lost.

Some welcome clarification emerged also. I’ve written a couple of times about some correspondence with an editor from international.to, which is owned by RogersDIGITAL marketing. I’d complained about the content of articles written by Peter O’Brien and glowing comments published beneath. They were eventually deleted, and correspondence ceased which as I said was fine by me. It was their call to resume any exchange. I’d argued elsewhere on the deletions, “…I doubt due to my objections, but rather their own integrity given the balance of developments”.

So a refreshing development came to pass. The “Greg” singing off emails is Greg Rogers from RogersDIGITAL, who was responsible for the impossible to miss disclaimer under O’Brien’s last piece. Not only was O’Brien none to happy with this piece of honesty, but had long been advising Rogers to delete email correspondence. Fairfax write;

Simon White, SC, for the commission, said Greg Rogers, of the online news and classified websites business Rogers Digital, had contacted the commission, concerned at emails from Mr O’Brien telling him he should delete every email after reading it, and warning of the confidential nature of business relations.

”If at any time in the future [he was questioned] you can honestly say every email was erased,” one email said.

Another said he should ”never admit you are paid for a story”.

If Mr Rogers agreed that he would delete all correspondence with himself, SensaSlim and another director, Adam Adams, we can ”move forward and do a lot of business”, Mr O’Brien wrote.

He said if Mr Rogers was interviewed by the ACCC voluntarily then ”you are doing so in violation of confidentiality, both real and implied”. ”I ask you immediately erase all communication.” [….]

“Greg, I have been reading very hostile comments on sites supporting Ken Harvey,” Mr O’Brien wrote. He queried a disclaimer on the story headlined ”Sensaslim director files million dollar law suit against Dr Ken Harvey” [sic] on a Rogers Digital website.

Oh my. All in all things aren’t presently looking up for Peter O’Brien. Although according to one report he has been listed as a creditor by SensaSlim administrators.

One awaits further developments.

SensaSlim Saga Update

Last we left SensaSlim, it’s ever ambitious team of supporters was getting a dressing down on behalf of The Australian Competition and Consumer Commission securely ensconced within the Federal Court in NSW.

On July 20th, Justice Yates had, according to the ACCC website;

… made orders by consent granting leave for the ACCC to proceed against Sensaslim Australia Pty Ltd (Administrator Appointed) up to 27 July 2011. Orders are extended to 27 July 2011 that Foster, O’Brien and Adams be restrained from taking further steps to make representations regarding the efficacy of the Sensaslim Spray where the basis for the representation is a clinical trial or scientific report, unless the clinical trial was conducted and is the subject of a scientific report which has been published in a peer reviewed scientific journal.

SMH also ran a piece outlining the bans sought by the ACCC against these rather dishonest chaps headed up by one Peter Clarence Foster, one of the least credible exports from our nation girt by sea;

THE consumer watchdog is seeking a 20-year ban on the corporate life of serial conman Peter Foster, over his alleged misleading and deceptive conduct with the weight loss business, Sensaslim Australia.

Lengthy bans are also sought against fellow Sensaslim Spray proponents Peter Leslie O’Brien (15 years) and seven years for Adam Troy Adams. The ACCC has not sought to disqualify a former Sensaslim director, Michael Anthony Boyle from managing corporations, but is seeking a three year ban on him being involved  in businesses which have franchising characteristics. [….]

The ACCC alleged that Sensaslim made false or misleading representations about the profitability of the business to investors who bought franchises. Sensaslim had claimed that franchisees had the potential to earn $4000 a week after they invested $59,950, and there was a ”money back buy-back guarantee”.

The ACCC said there was not the potential to generate the earnings, there were no franchisees generating the projected earnings, and there was no guarantee of a refund. The ACCC also alleges false and misleading conduct by the use of testimonials of the clinical effectiveness of the spray ”when in fact no such [clinical] trial was conducted”, and the failure to disclose Mr Fosters’ involvement in the business.

The next piece of interest was published August 9th, in The Age’s Small Business section. Authorities move to dump conman’s weight-loss spray from market. At this point SensaSlim were eight days overdue in publishing the legally required warning about the action being taken against the company, on the front page of their website.

A HERBAL diet spray linked to notorious conman Peter Foster looks set to be taken off the market, six months after health authorities first received a complaint about it.

Last week, the Therapeutic Goods Administration’s complaints resolution panel called for SensaSlim to be removed from the register of therapeutic goods, which means the spray cannot be advertised or sold.

Executive officer of the panel, Judith Brimer, asked the TGA to cancel its listing after SensaSlim Australia failed to withdraw advertising that lacked approval. A spokeswoman for the TGA said it was considering the request. The panel’s call comes six months after Melbourne academic Ken Harvey first complained about the product, prompting SensaSlim Australia to launch a defamation case against him. [….]

On July 27, the ACCC won orders in the Federal Court for the company to change the front page of its website to inform visitors of the legal action against it. While the notice was required to be posted within five business days, it did not appear on the site yesterday.

Meanwhile, Dr Harvey continues to defend the defamation case launched against him by the company, which is seeking $800,000 damages. Dr Harvey said he hoped the case, which has cost him about $30,000 to date, would be dismissed this month. Supporters are raising money to cover his costs. More than 100 franchisees are believed to have paid $60,000 each to sell SensaSlim, which has sold for about $1200 a litre or $60 for a 50 millilitre bottle.

Their RTG listing is here for your perusal dear reader, the TGA Summary here. Yet, as we know there’s no joke about seasoned con men. The ACCC may get these critters off Australia’s back, reap some monies and give them some bad press overseas but in reality they’ll just keep singing in the hope of scamming the larger European market. A scroll back through some articles here gives a hint at how much energy they put into feigning disgust at having their good names tarnished and pointing to the (still) available ARTG certificate, on the Australian Weight Loss Challenge site. The “challenge” has grown from about four to thirteen participants in just over a month.

Last night a little birdie on Twitter asked if this was real. SensaSlim director files million dollar law suit against Dr. Ken Harvey. Well, yes it is true. But my, what a tantrum Peter O’Brien seems to have had;

In a writ filed in the Supreme Court of Queensland, Mr O’ Brien claimed that Dr Harvey had no grounds for calling for SensaSlim to be withdrawn from sale given that there are no safety issues over it.

“The TGA authorised SensaSlim for sale on the basis of its unique formulation and active ingredients,” Mr O’Brien said. “It is issued with a TGA Listing number approving it for sale  as a weight loss aid.”

The Sensaslim Solution formulation combines five of the most thoroughly researched weight loss ingredients over the past 30 years.   It uses all natural active components extracted from rare fruits and minerals, which together, act to stimulate the body’s natural fat burning processes, reduce cravings of sugar and carbohydrates, maintain energy metabolism, inhibit fat synthesis, increase fat oxidation, encourage lean muscle mass and decrease body weight.

Sensaslim also contains a natural analgesic which acts to desensitise taste receptors on the tongue.

“For any  product to be withdrawn from the market it has to be because of a safety issue, and Dr Harvey knew that,” Mr O’Brien said.

“He was attempting to create headlines and be mischievous and we are calling him to account.” he said. “He is a man pursuing a personal vendetta and is followed by a small group of people who pride themselves on being sceptics and cynics’. “It is one thing for him to disagree with our advertising, but it is completely outrageous to call for a product to be withdrawn from sale simply because he is against all things natural,”

Mr O’Brien said Dr Harvey was a “chronic complainer on the complementary healthcare industry who becomes louder and more vengeful and spiteful as he realises he becomes less relevant.”

“What Dr Harvey can’t tolerate is the growth in the natural nutrition and healthcare industries, at the cost of big pharmaceuticals,” Mr O’Brien said. […..]

Wait on, wait on. What sort of news agency is going to spruik a product and run a personal attack under a seemingly routine type headline? No comment from Dr. Harvey either, which is tacky given he consults and lectures on the various conflicts of interest that do plague pharmaceutical companies. It is entirely correct and proper for Dr. Harvey to call sham products to account as well as highlight the contributing flaws in Australian regulation. This does not equate to a conflict of interest born of bias toward pharmaceuticals.

Dr. Harvey is a man of impressive integrity who has worked in Australia and overseas to ensure consumers are able to access the drugs they need. He’s worked with local S.E. Asian NGO’s helping to lobby their own governments to introduce policies that enable the sort of access we take for granted as well as tackling the horrific reality of counterfeit medication.

This also had a familiar ring to it. Much like the earlier articles about the wonder spray, the expansive jockey story and the Thank you for suing us article written by a certain Peter O’Brien that had me corresponding with an editor from international.to. Or the claims of presenting these stunning clinical trial results to scientists at the 18th European Conference on Obesity in Turkey. I’d been reliably informed they were nowhere to be seen in Turkey. As I wrote back on July 6th.

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.

However the editor initially responded citing he’d never heard the claims I was making. Despite links provided about the missing evidence, complaints and accusations from Dr. Capehorn. Then when the proverbial hit the fan I received on June 16th;

Thanks for taking the time to provide more details…

Our role is to be objective and your point of view is valuable..  we will not take sides….

What was once a public interest story has certainly grown into something more now that there are court cases, TV segments and reports from customers ( good and bad )..

We will get back to you..  and I would need your permission to enable me to pass on your email to a reporter to pursue ?

All the best

But I never did hear back and don’t really see why I should have. That’s their call. As I pointed out in the prior article, international.to is owned by RogersDIGITAL a marketing company based in Australia. They have had a website overhaul since I last described the pseudo-psychological marketing lingo’ on their site. Presently they have a rather prominent: We publish news, press releases and advertising on websites owned and operated by our media group.

Which might well explain the far more honest footnote to Peter O’Brien’s latest rant on international.to

Editor Note.. This press release was created and submitted by Mr O’Brien. It is not news. It is not our editorial content . IT IS A PRESS RELEASE. It is for information purposes only. http://www.International.to publishes verified press releases upon application to http://www.NewsMediaReleases.com. As with any press release it is marked as such and is not intended as a report or coverage of an event or occurrence.

A press release, news release, media release, press statement or video release is a written or recorded communication directed at members of the news media for the purpose of announcing something ostensibly newsworthy. [….]

So, we can really only wait and see how much of this is a serious endeavour and how much is to maintain the ongoing song pitched to gullible buyers and presumably very angry franchisees.

In short is it just another last ditch push to make money from the sinking ship SensaSlim by coating the hull in fake credibility?

SensaSlim: “The cavalry is on the way”

We last left SensaSlim on July 6th, after a look at some nasty tactics and the use of Rogers Digital marketing Australian news site, to publish “news” stories about their miraculous product.

Next up came the June 21st SensaSlim newsletter, scribed by the elusive Peter O’Brien. It opened with:

Hello Everyone,

The  cavalry is on the way.

I have just been informed that SensaSlim International have arranged for two of the coordinators of the clinical trials that were conduct by the Institut De Recherche Intercontinental to travel to Australia to assist us in defending the integrity of the worldwide trials.

The Institute are treating criticism of their trails very seriously. Dr Strebel who is currently in Moscow on a project and has made contact with SensaSlim lawyers to ensure they are given every assistance through the preparation of affidavits that can be presented to the Supreme Court of New South Wales with regard to the defamation proceedings brought against Dr Ken Harvey.

They are also going to assist us with the preparation of any material that needs to be submitted to the ACCC to dispose of the allegations that the trials are not conclusive. We will also be proposing to have the trials coordinators speak with Today Tonight whilst they are in Australia and other health writers to combat this attack against us.

I have now seen affidavits that have been filed in the courts in England by SensaSlim International against Dr Matthew Capehorn. There can be no doubt in anybody’s mind upon reading the material that Dr Capehorn was given the data he required to prepare the white paper and that he was prepared to continue to stand by the white paper conditional upon being paid additional money. As I have always said the dispute with Dr Capehorn has nothing to do with the evidence of the efficacy of SensaSlim but it is all about money.

Area Managers have asked me to confirm that SensaSlim was approved to be sold as a dietary aid by the Therapeutic Good Administration based upon the ingredients and not the clinical trials. The clinical trial data was of no interest to the TGA and nor did they ask for it. All they wanted to be satisfied with was the ingredients in the product and the formulation and if based upon the science the product would be able to achieve weight loss.

Those keeping up with the saga will recognise the arrogance in the wording of this newsletter on several points. Today Tonight have started to distance themselves from SensaSlim. It was beyond ambitious to suggest research authors from the Institut De Recherche Intercontinental (IRI) would – just like the cavalry – come a-recscuin’ by submitting materials, “to the ACCC to dispose of the allegations that the trials are not conclusive.” At much the same time the ACCC had discovered the IRI was a bogus entity and that photos depicting executives – or the cavalry, if you will – were also bogus, being photos of lung specialists from St Paul Lung Clinic in Minnesota, USA. SensaSlim legal eagle Terry Harrison said at the time, the Australian arm had cobbled the deal with Dennis Thornton of Lloyds Business Brokers, on behalf of SensaSlim Suisse Ltd. According to the director of Lloyds Business, Thornton was found dead last year. Australian Skeptics have an article here, reviewing the ACCC and Ken Harvey’s position.

The ACCC had won a federal court order to freeze SensaSlim’s Australian assets, most likely on the basis of fabricated trial evidence presented on Australian TV. Certainly for engaging in ‘‘misleading and deceptive conduct’’ under the Trade Practices Act 1971. The assets are frozen until a hearing on August 31st. This is the basis of Dr. Ken Harvey’s complaint against the company. A report, not written by Harvey, about this complaint was published on auspharmacist.net.au provoking SensaSlim to sue for defamation. Making the caper even more overtly scam-worthy was the fact the same pictures of the USA doctors were published on the site of the Mountebank Clinic. The “clinic” address is an industrial estate in Bargo, NSW.

“Mountebank” means:

“a person who sells quack medicines, as from a platform in public places attracting and influencing an audience by tricks, storytelling, sleight of hand, etc… a person who deceives others especially in order to trick them out of their money… any charlatan or quack”

Charming. The clinics’ director was passed off as an “Dr. Joseph Balsamo”, with an image of singer Alberto Balsamo and the qualifications of Flindsers University academic, Adjunct Associate Professor Mary Harris. The Mountebank gig is apparently part of Reef Health who open their website blurb with the strange line, “Reef Health Pty Limited is a 100% Australian company dedicated to natural products which are not only good for you, but actually help.” Reef Health is owned by Andrew Tarter/Tatar and his girlfriend Roxanne Naylor.

That doesn’t stop Roxanne auctioning herself off for a date on this crass dating site – What’s Your Price? She’s getting good mileage from that profile picture. Tatar – or Tarter – is a struck off Sydney solicitor arrested in Vanuatu in 2007 under suspicion of helping smuggle a convicted conman from Fiji. That conman was none other than Peter Foster. Naylor and Tatar are respectively CEO and General Manager of Kava Kwik – Vanuatu Instant Kava.

There’s a wonderful little exchange about sunny Vanuatu here on the Scam.com forum from October/November 2008. A Peter Foster claims to have been conned by a Sam Grant who pushes cancer cures and sells worthless “distributorships”. Grant sells, ahem, “neutraceuticals“. A Brian Smith also suggests Grant is a conman. Grant refutes Fosters account, denying he sells distributorships and pointing out Foster is in jail. Then an “ausman123” rips into “real scammers” Andrew Tarter/Tatar and Roxanne Naylor for scamming Sam Grant:

They own reefhealth.com which WAS reselling a product of sam grants (sic) in Australia. He did this in good faith and shipped all stock without payment.Andrew & Roxanne did not pay for ANY stock even though Sam shipped the orders. When Sam asked for his money Roxanne and Andrew went and registered domain names in Australia and the UK which are the brand name of Sam Grants product and redirected them to Reefhealth.com and posted a FALSE claim about the product.

Roxanne then sent an email to Sam saying that she would be interested in selling the domain back to him. Extortion?
So lets look at the facts:
1. Roxanne and Andrew have history of scams and running scams.
2. Roxanne and Andrew did not pay for stock and pocketed the money rather than paying the bill.
3. Roxanne and Andrew then bought brand domains names and redirected them to their website which they changed and put a FALSE statment about the product to trick customers.
4. Roxanne and Andrew then began posting FALSE information on Sam Grant calling him a scammer.
5. Peter Foster is an international SCAMMER who is associated with Roxanne and Andrew. Interestingly enough he is in Jail at the moment so for him to post on an internet forum while is jail is truly amazing.

Scammers scamming scammers? Or is it just a scam? Either way after this cosy chat and the information pulled together by The Age – and also independently by a member of Support Dr. Ken Harvey – it’s entirely possible Naylor and Tatar/Tarter were “fronting” for Foster. Reef Health accused The Age of “hacking” their Mountebank Clinic website and it disappeared on the same day. The Age has admitted using an incredibly complex and particularly darstardly piece of software known in hacking circles only as… “Google”.

The next day, June 23rd saw reports of a $4.2 million class action by over 70 franchisees conned into paying up to $60,000 to buy SensaSlim stock. They also fell for the line of supposed clinical trials and substantial evidence. Slater & Gordon are working with the ACCC in a bid for compensation, which may indeed prove difficult given SensaSlim’s Australian accounts hold approximately $230,000.

With regard to Dr. Ken Harvey’s defamation case, I mentioned last time that Justice Lucy McCallum had issued consent orders on June 14th. One of which was that, “The plaintiff file an amended statement of claim on or before 1st July 2011”. Sadly for SensaSlim this did not come to pass. Following the ACCC action their lawyers, Kennedy’s Australia withdrew from the case. By June 30th John Kukulovski of Jirsch Sutherland was appointed administrator and by July 5th it was reported he was recommending liquidation. Dr. Harvey has been awarded costs although until happily reimbursed cause for celebration must wait. His lawyers will apply to have the defamation case struck off on July 11th.

The paragraph above in which Peter O’Brien notes the TGA were not interested in product efficacy is accurate and gives insight into the problems with Australia’s regulatory system. Here’s the TGA’s public summary of SensaSlim. In effect the paper tiger position of the TGA is the genesis of this entire sorry saga – and an avalanche of other scams, shams and inefficacious “remedies”. The TGA claimed in June that it cancelled SensaSlim’s advertising approvals and welcomed the ACCC investigation. Pharmainfocus.com.au reported;

“TGA has already taken regulatory action through cancelling SensaSlim’s advertising approvals. We have tested their product and although we have found it does not contain any unsafe ingredients, TGA is continuing to assess other aspects of the product,” a spokesperson said.

Which is as usual, utterly useless. The TGA should invoke Section 30 of the Australian Therapeutic Goods Act, 1989 and deregister SensaSlim from the Australian Register of Therapeutic Goods – certificate here. Presently the anorexic slogan Nothing tastes as good as slim feels still heads up SensaSlim’s shiny new sales and advertising website, including the absurd “lose weight while you sleep” argument. As reported in today’s Weekend Health in The Australian;

But on a newly established website the company confirms it’s proceeding against Harvey. Although the TGA assured Weekend Health in June that it had cancelled SensaSlim’s advertising approvals, the firm continues to promote its product on the new site, claiming the spray is approved by the TGA and the Health Department.

[…..]

A TGA spokesperson wasn’t able to clarify the situation as Weekend Health went to press. Harvey suggests the case highlights “fundamental flaws” in Australia’s system of regulation and promotion of complementary products. Specifically, the TGA’s lack of teeth and a distinction between “listed” and “registered” products that is unclear to the public.

Listed products are assessed by the TGA only for safety and quality, while registered products are also tested for effectiveness.

Being snobbed off is nothing new for the TGA. The article also mentions some nasty tactics recently used to bully co-complainant Dr. Lesley Campbell over her position in Harvey’s defamation case. Another problem of course is the role of pharmacists in selling the product – just one of many unproven remedies they stock. SensaSlim are also hyping up The Australian spray weightloss challenge, and use the site to boast the Australian Register of Therapeutic Goods certificate.

The final balderdash to note is the “settlement” of the stunt case in which SensaSlim claimed the jockey of Black Caviar had lost too much weight. On examination it’s absurd. I opined to other’s on June 26th, when Yahoo 7 published the story that jockey’s are weighed pre and post race. Underweight jockey’s carry weights in their saddles. So Wanderson D’Avila was the correct weight and apparently magically lost 0.8kg within about 30-40 minutes before the next weigh in. Even The Age picked up this AAP story, in which D’Avila was apparently paid $12,500.

Fortunately Jonathan Holmes of ABC’s Media Watch gives this story – and much of the Sensaslim con it’s due, below. The final insult is that now – on their new website – SensaSlim is offered free to jockeys over the 2011 racing season. Again, they use the made up claims attributed to Dr. Capehorn. He denies ever making them and lists this, along with use of his endorsement and identity before he actually sighted evidence, as a key reason for quitting his role as Research Director. He is suing SensaSlim for breach of contract and they are suing him for breach of contract. Nonetheless the hilarity includes;

Dr Matthew Capehorn, SensaSlim Research Director and Clinical Director of the National Obesity Forum in the UK said, “The erratic dietary habits and pre-race preparations of many the nation’s jockeys is an ongoing tragedy waiting to happen.”

Dr Capehorn noted recent press reports in Australia that highlighted not only eating disorders in the sport but lethal lifestyle choices associated with the need to lose weight quickly. He said the same pattern could be seen in the racing industry around the world.

Jockeys are traumatised and tortured every day by food deprivation,” Dr Capehorn said. “The constant thoughts of food and being hungry have led to mental breakdowns, domestic violence and even suicide.

One can only anticipate the demise of this scam with something close to urgent glee. Nasty people, nasty tactics, nasty claims. Australia still lacks appropriate legislation to effectively and quickly deal with this type of nonsense. Though on the positive side, their assets are frozen, they went into liquidation on July 1st and Ken Harvey’s lawyers will apply to have the defamation case struck off on July 11th.

Sadly, I’m sure SensaSlim will go on to rort consumers in Europe for some time to come.

Dirty tactics when SensaSlim first copped a spray

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.