Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2005] FCA 1703

Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2005] FCA 1703

The Court found that the advertisements and promotional materials for the Slendertone electronic muscle stimulation products made false and/or misleading representations concerning the ability of the products to tone, firm, flatten, or reduce the body, to reduce cellulite or measurements, to provide equivalence to conventional exercise, and to achieve results within specified short timeframes, in contravention of ss 52 and 53(c) of the Trade Practices Act 1974 (Cth), and that the representations in the communications would be understood as achievable without qualification, which was not supported by the evidence. Mr O'Donoghue was liable as an accessory for much of the conduct. The...

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent/first Cross Claimant: Emerald Ocean Distributors Pty Ltd (ACN 074 316 304); Second Respondent/second Cross Claimant: Slendertone Health and Beauty Pty Ltd (ACN 059 362 542); Third Respondent/third Cross Claimant: Sean O'Donoghue; Cross Respondent: Bio Medical Research Limited
Jurisdiction
Australia
Judgment Date
25 November 2005
Procedural Posture
Civil Misleading or Deceptive Conduct (trade Practices) / Liability and Cross Claim Determination (judgment and Orders Awaited)
Outcome
Liability found against Slendertone Health and Beauty Pty Ltd, Emerald Ocean Distributors Pty Ltd, and Mr O'Donoghue as accessory for misleading and deceptive conduct and false representations. Cross-claim against BMR dismissed with costs.
Legal Topics
Misleading or Deceptive Conduct, False or Misleading Representations, Accessory Liability, Indemnity and Contribution, Performance Characteristics of Goods, Future Representations
Trade Practices Consumer Protection Misleading or Deceptive Conduct False or Misleading Representations Accessory Liability Indemnity and Contribution Performance Characteristics of Goods Future Representations

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Parties

Australian Competition and Consumer Commission

Applicant

Emerald Ocean Distributors Pty Ltd (ACN 074 316 304)

First Respondent/first Cross Claimant

Slendertone Health and Beauty Pty Ltd (ACN 059 362 542)

Second Respondent/second Cross Claimant

Sean O'Donoghue

Third Respondent/third Cross Claimant

Bio Medical Research Limited

Cross Respondent

Procedural Posture

Civil Misleading or Deceptive Conduct (trade Practices) / Liability and Cross Claim Determination (judgment and Orders Awaited)

Legal Issues

  1. 1 Whether the respondents made false or misleading representations in advertising EMS products in contravention of ss 52 and 53(c) of the Trade Practices Act 1974 (Cth)
  2. 2 Whether any implied representations were made and their extent
  3. 3 Whether Mr O'Donoghue was accessory to any contraventions

Ratio Decidendi

The Court found that the advertisements and promotional materials for the Slendertone electronic muscle stimulation products made false and/or misleading representations concerning the ability of the products to tone, firm, flatten, or reduce the body, to reduce cellulite or measurements, to provide equivalence to conventional exercise, and to achieve results within specified short timeframes, in contravention of ss 52 and 53(c) of the Trade Practices Act 1974 (Cth), and that the representations in the communications would be understood as achievable without qualification, which was not supported by the evidence. Mr O'Donoghue was liable as an accessory for much of the conduct. The...

Court Disposition

Liability found against Slendertone Health and Beauty Pty Ltd, Emerald Ocean Distributors Pty Ltd, and Mr O'Donoghue as accessory for misleading and deceptive conduct and false representations. Cross-claim against BMR dismissed with costs.

Orders

  • Applicant to file and serve draft orders to give effect to judgment within 10 days.
  • Respondents/cross-claimants to file and serve any written submissions as to variations within further 10 days.