The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Kevin Trudeau is one heck of a salesman. He is also a prolific author, self-described consumer advocate and "exposer of corporate and government corruption."*fn1 He is also an ex-felon*fn2 and, as discussed below, a contemnor of this court's orders. His favorite marketing tool is the "infomercial," a lengthy television advertisement that takes the form of a mock interview. Through this medium Mr. Trudeau has sold various products that he claimed could: cure numerous diseases, such as multiple sclerosis, cancer, substance abuse addictions, and arthritis (among many others); reverse hair loss; improve memory; and (apropos to the matter before the court) cause dramatic and permanent weight loss.
Naturally, Mr. Trudeau's activities drew the attention of the Federal Trade Commission. In 1998 and again in 2003 this court issued permanent injunctions against Mr. Trudeau concerning some of these activities. The 2003 case is back before the court on the FTC's motion for a rule to show cause why defendant Mr. Trudeau should not be held in contempt for violating a provision of that permanent injunction.
The 2003 litigation arose from Mr. Trudeau's marketing of coral calcium as a cure for many diseases, and of a product called "biotape," an adhesive pain relief product that supposedly eliminated pain from migraines, arthritis and sciatica. Despite the prohibition in the 2003 stipulated permanent injunction against false claims concerning coral calcium, Mr. Trudeau continued to represent that this product cured cancer. As a result, this court held him in contempt of the injunction. The parties ultimately resolved that matter by entering into a "Stipulated Final Order for Permanent Injunction" in September 2004, which prohibited Mr. Trudeau generally from producing or disseminating infomercials, with one narrow exception: he was allowed to make infomercials in connection with the advertising or promotion of publications such as books, provided that he "must not misrepresent the content of the book." He has since published several books, including Natural Cures "They" Don't Want You to Know About, Natural "Cures" Revealed: Previously Censored Brand Named Products that Cure Disease, and, most recently, The Weight Loss Cure "They" Don't Want You to Know About. It is the marketing of this last book through a series of three infomercials that brings Mr. Trudeau back to the attention of the FTC and the court.
The Weight Loss Cure "They" Don't Want You to Know About ("the Weight Loss Book") is a 255-page hardback volume copyrighted in 2007 and published by Alliance Publishing Group, Inc. of Elk Grove Village, Illinois. Mr. Trudeau's infomercials describes the Weight Loss Book as disclosing the "easiest," "simplest," and "most effective" diet for fast and permanent weight loss. The Weight Loss Book details a protocol consisting of four phases, the last of which is life-long. Each of these phases has mandatory "things you MUST do," "things you MUST NOT do," and "things STRONGLY SUGGESTED you do." Without describing the book in detail, these phases can be summarized as follows.*fn3 In Phase One (which the book states "is strongly recommended, but not required"), "things you MUST do" include: fifteen colonics (from a licensed colon therapist) within a 30-day period; drinking one half to one gallon of pure water with coral calcium supplements daily; walking outside for one hour each day; and consuming a number of specified foods, organic foods and food supplements. The list of "things you MUST NOT do" includes complete avoidance of "fast food, regional, or national chain restaurants," artificial sweeteners, specified fats and sugars, and all "non-prescription, over-the-counter or prescription medication (done only under the supervision of a physician)." Under the category of "STRONGLY SUGGESTED" are: deep breathing daily; 100% organic foods; yoga; massages; the use of shower filters; "play[ing] baroque classical music or other relaxing music at mealtime"; and playing a musical instrument. According to the book, dieters "should lose between five and thirty pounds during Phase 1."
After 30 days of this regimen the dieter enters Phase Two (which is mandatory and lasts three to six weeks), when he or she "MUST" be supervised under the care of a licensed physician, drink one half to one gallon pure water with coral calcium supplements daily, consume no more than 500 calories a day*fn4 for a 21-to 45-day period, consume a number of specified organic foods, and eat meals and snacks as directed in the Weight Loss Book. "MUST NOT" conduct includes "put[ting] nothing on the skin" and avoiding all nitrates, monosodium glutamate ("MSG"), artificial sweeteners, trans fats, and medications. It is "STRONGLY SUGGESTED" that dieters not: consume ice-cold drinks; be exposed to air conditioning or florescent lights; consume restaurant food; be exposed to advertisements for food or restaurants; use a microwave oven; or consume fresh fish. It is strongly recommended that one eat only 100% organic food, do deep breathing daily, "[w]ear a C-Link, E-Pendant, or use Biopro or other such devices," get massages, sing, dance and laugh often.
As if this list is not onerous enough, Phase 2 also requires the dieter to receive daily injections of human chorionic gonadotrophin ("HCG"), a hormonal pharmaceutical product that must be injected into deep muscles such as the upper buttocks. As stated in the book, HCG is available in the United States only by prescription, despite the fact that Phase 2 prohibits the use of all prescription medication. Additionally, as the book states, HCG is "one of the only pharmaceutical compounds that the FDA has specifically said should not be used in the treatment of obesity."*fn5 Receiving these injections, then, requires the dieter to do one of two things: 1) travel outside the United States to obtain the substance without a prescription; or 2) find a doctor to prescribe HCG for a purpose not approved by the FDA and administer prescription injections in direct contravention of Phase Two's prohibition on prescription medications.
In Phase Three (also mandatory), the dieter "MUST" consume a number of specified organic and other food products, walk one hour a day outside, do a "colon cleanse" and colonics, eat six times a day, "[g]et personalized individual care from a licensed health care practitioner who does not use drugs and surgery," and drink one half to one gallon of pure water with coral calcium daily. The dieter "MUST NOT" consume sugar, starch, store-bought bottled, canned or cartoned juice, fast food, food from any "regional or national chain restaurant," certain sugars, meat, poultry, MSG, or trans fats. The Weight Loss Book "STRONGLY SUGGESTS" essentially the same items that were "STRONGLY SUGGESTED" in Phase Three, although it does add the use of "homeopathic human growth hormone."
Finally, the dieter comes to Phase Four, which is to last the rest of his or her life. The "MUST do" list includes (among other things): liver, parasite and colon cleanses; colonics; eating 100% organic foods; taking one hour walks outside daily; drinking one half to one gallon pure water with coral calcium supplements daily; a "supervised fast within twelve months"; and the consumption of other dietary supplements. The dieter "MUST NOT": ever use a microwave; consume fast food or any "regional or national chain restaurant food"; eat diet, low carb, low fat, non-fat, or "light" food, nitrates, MSG, artificial sweeteners, trans fats, or refined sugars; or use any "non-prescription, over-the-counter, or prescription drugs (must be done under the supervision of a licensed physician)." The Weight Loss Book "STRONGLY SUGGEST[S]" a number of special teas, yoga, resistance training, deep breathing, avoidance of "food from any restaurant," exposure to air conditioning and florescent lights, and a number of the other items contained in the previous phases.
Like Mr. Trudeau's other "cure" books, the Weight Loss Book has made the New York Times' bestseller list and is an enormous commercial success.
The first infomercial about which the FTC complains was produced on or around December 23, 2006*fn6 and was followed by two other infomercials in January and July of 2007. In these infomercials, Mr. Trudeau is "interviewed" about the Weight Loss Book, as well as several other items that he is promoting. The FTC's motion for rule to show cause focuses on repeated references in the infomercials to the purported fact that the diet described in the Weight Loss Book is "easy," and that consumers will be able to eat whatever they want after completing the four-phase program. Throughout Mr. Trudeau's infomercials, he repeatedly states that the diet is "very easy to do . . . you don't have to go to a clinic to ...