Suit: Her (weight) loss should not be their gain

  • Article by: JAMES WALSH , Star Tribune
  • Updated: December 17, 2009 - 11:19 PM

A former 'Biggest Loser' contestant from Shakopee sues makers of several weight-loss products for using her image.

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Jennifer Eisenbarth, of Shakopee lost more than 100 pounds through exercise and diet at part of the Biggest Loser television show.

Photo: Bruce Bisping, Star Tribune

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Once Jennifer Eisenbarth finally decided to lose the weight -- as she gazed into the eyes of her newborn daughter one night -- she also decided that how she lost it was even more important than losing it.

She exercised. She dieted. She even became a contestant on "The Biggest Loser" television show, although she shed 92 of the 100 pounds she lost after she was booted from the program.

So when she saw her face attached to ads for "gimmick" weight-loss products, Eisenbarth was dismayed -- and angry. She would never endorse such products, she said.

"It's not who I am," said the Shakopee mother of three. "It was the exact opposite of what I had accomplished for myself, what I want to promote."

This week, Eisenbarth filed suit in U.S. District Court in Minneapolis against several manufacturers, including FWM Laboratories, the makers of Acai Berry Detox, and Bromacleanse, Tricleanse and others. She seeks not only to halt the use of her image and "persona" in their advertising, but she is seeking as-yet-unspecified cash damages as well.

"These companies are preying on individuals, like myself, who are mentally and emotionally struggling with obesity," Eisenbarth said.

Officials with the companies have not yet filed responses to the suit and did not return telephone calls Thursday seeking comment.

The Biggest Loser

In April 2006, the former plus-size model headed to California to join "The Biggest Loser" -- after beating out 250,000 applicants and dozens of finalists to win one of 14 spots on the show.

Eisenbarth was so committed to making the life change necessary to lose weight, she left all of her plus-size clothes in 24 garbage bags on her front porch.

A week later, she was eliminated from the show. She had lost 8 pounds.

Rather than a setback, Eisenbarth said she viewed the elimination as a blessing. She had been overweight since childhood, she said. There was no turning back. Over the next seven-plus months, she changed how and what she ate, limiting her intake to 1,200 calories a day. She exercised up to seven days a week. The pounds came off. From a high of 283 pounds -- 245 when she first weighed in on "The Biggest Loser" -- Eisenbarth got down to 143 pounds.

She began speaking to groups promoting healthy lifestyles. She has appeared at gatherings; she has volunteered for a number of causes. Eisenbarth, a stay-at-home mom who was a speech communications major in college, hopes to pursue a career as a motivational speaker. She was, she said, "sharing my journey."

Then, about a year ago, people started e-mailing and calling her about the ads.

They saw her pictures -- before and after -- often attached to someone else's name. "So that's me on the left, at my heaviest, right before I learned about this miracle system. After using Elite Acai Blast and Bromalite, the pounds started drifting away!" reads one ad below Eisenbarth's photos.

Even not knowing her name, people found her. Desperate to lose weight, they desperately wanted to know if the products her photo was promoting really worked.

But she had never endorsed those products, Eisenbarth said. She had never given anyone permission to use her photos.

Just the insinuation that she would use such methods struck a nerve, she said, especially after she had read a blog on one of the product's websites. On the blog, the faux Eisenbarth was talking to someone about using the product while pregnant. Eisenbarth had refused to worry about dieting during her pregnancy for her third child, a boy born more than a year ago. So the idea of taking diet products while pregnant is unnerving, she said.

Her attorney, Christopher Sorenson, who specializes in intellectual property cases, said it matters that would-be consumers believed that Eisenbarth used the products. What people perceive about a person is a powerful thing, he said.

"We think the damage is irreparable," Sorenson said. "No payment can adequately restore what's been done."

A moving target

Pinning down the people who run the websites, who created the content and who are wrongly profiting from someone else's good name and image is challenging, he said. Domain names change; so do websites.

While FWM Laboratories, Bromacleanse, Tricleanse and Central Coast Nutriceuticals have websites where people can order their products, and customer service telephone numbers where people can check on their orders, there appears to be no clear way to contact company officials.

An employee who answered the customer service phone number listed for Central Coast said he was not affiliated with the company -- after a reporter asked to talk to officials about Eisenbarth's lawsuit. He said he had no other information. Telephone messages left for officials at the other companies were not returned by Thursday evening.

"You would hope that with all this ethereal Web-based marketing that there is a person, somewhere," Sorenson said. "We would like to get that person to explain themselves."

Eisenbarth said that, when she first started seeing the ads, it felt as if "I was on a small boat, surrounded by sharks." Now, after filing the suit and fighting back, she said, "I feel like I'm the one with teeth. And I'm going to bite."

Her weight-loss journey continues. Of the 91 pounds she gained while pregnant with her son, Eisenbarth said she has lost all but 20 pounds. What she has learned on her journey, she said, is that weight loss is not about short cuts. It's not even about determination.

"It's more about consistency," she said. "That's why my message is that anyone can do this by making simple, consistent, changes in their lives."

James Walsh • 612-673-7428

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