Our Bodies, Their Solutions

Makinen said she didn’t think of suing either, at first. But she kept hearing the ads.

“Every time I heard that commercial, it bothered me more and more,” Makinen said.

Since filing the lawsuit, she‘s lost 7 pounds -- the hard way. She walks for an hour every morning and eats oatmeal for breakfast, lentil soup for lunch and chicken breast with steamed vegetables for dinner.

This routine is in stark contrast to the three months she took Evening Weight Loss Formula. She spent every day then baking and eating pies and cakes and brownies with her granddaughter. How was a tablespoonful of anything going to fight that?

But that was Body Solutions’ message -- through the DJs who pushed the product, and through the company‘s sales staff. I had a friend call Body Solutions, and the salesman she talked to said he ate mostly fast food and didn’t exercise, and he was losing weight with Body Solutions.

I asked Makinen if she really, in her heart of hearts, ever thought Body Solutions would work, with her eating all the brownies and everything, or if she just wanted it to work.

“Maybe subconsciously I didn‘t want to stop baking pies and cakes with my granddaughter,” she admitted.

There is a collaboration of sorts between many people who want to lose weight and many of the companies that sell weight-loss products: They both desperately want to believe that these products work. If they work, everyone wins. Everyone is happy. Who but a few un-American naysayers could be unhappy if people lose weight and someone finds a way to make money in the process?

The words weight loss are now banned from Body Solutions’ Evening Weight Loss Formula, due to a preliminary injunction obtained by the FTC. Mark Nutritionals‘ headquarters has been sold to Goodwill Industries. Sheena Metal’s radio station, KLSX, has filed a claim against Body Solutions for $171,145 in unpaid advertising bills. Dr. Kaats is no longer employed by Mark Nutritionals and has been named, along with Siskind, D‘Alessandro and Siskind’s wife (former executive VP of the company), as a defendant in the Texas lawsuit filed along with the FTC case. Dr. Kaats declined to comment. Mark Nutritionals, ever hopeful, has brought in a new CEO to turn things around and has started selling Body Solutions at Sav-On, Walgreens and several other stores.

I asked the private lawyers who are suing Mark Nutritionals on behalf of Janet Makinen, et al., whether they‘ve ever tried to lose weight. Everyone said pretty much the same thing.

“I really don’t think the personal experience of the plaintiff attorney is relevant,” said Mark Baumkel, one of the lawyers in the Michigan case.

I also asked if they expected Mark Nutritionals to put a bunch of people on the stand who say they‘ve lost weight on Body Solutions. Of course not, they said. Each side will have to present evidence and experts, not a parade of unhappy fat people followed by a parade of happy thin people.

“You can have people eat dog poop and say it makes them strong and thin, but you’ve got to have a scientist bring admissible scientific evidence,” said Baumkel.

I understand why, legally, people‘s experiences of weight loss or weight gain are meaningless in these cases. Courtrooms are not rap sessions, they are for holding companies accountable for what they make, do and promise. Still, experts talking about lipids cannot convey what it means to be fat, or what it takes to get thin.

I’m happy for Sheena Metal and anyone else who‘s lost weight on Body Solutions. I think, on a case-by-case basis, it really doesn’t matter why something works, as long as it isn‘t harmful. But when you get into thousands of people and millions in profits, it does matter. Body Solutions isn’t a friend giving you diet advice over a cup of coffee. When a weight-loss strategy is hooked up to a giant marketing machine, that strategy has to have more going for it than “Hey, it worked for me.”

The bankruptcy proceedings have put Makinen‘s lawsuit and the other private cases on hold, but she says she’s not going to let it go. She and four other plaintiffs, from California, Michigan, Ohio and Texas, have filed a new complaint, this one in U.S. Bankruptcy Court, going after Mark Nutritionals for deceptive trade practice and breach of implied warranty.

“I keep the bottle [of Evening Weight Loss Formula] in my fridge, just to remind myself never to listen to anything like this again,” she said. “My husband keeps saying, ‘Why don’t you just throw this away?‘ Nope. I will throw it away when the lawsuit is over and done with.”