October 28, 1983
In the Matter of the Complaint Against
THE ROBERTSON-TAYLOR COMPANY
Suite 290 781 W. Oakland Park Boulevard
at Fort Lauderdale, FL 33311-1729
at 135 E. Oakland Park Blvd.
Fort Lauderdale, FL 33334-1153 and
at 3033 N.E. 33rd Avenue
Fort Lauderdale, FL 33308-7210
P.S. Docket No. 16/98;
Grant, Quentin E.
APPEARANCE FOR COMPLAINANT:
Hilda Rosenberg, Esq.
Consumer Protection Division Law Department
United States Postal Service
Washington, DC 20260-1100
APPEARANCE FOR RESPONDENT:
Lee H. Harter, Esq.
2256 Van Ness Avenue
San Francisco, CA 94109-2513
In Complaints filed with this office Complainant alleges that Respondent is in violation of 39 U.S.C. § 3005 in seeking remittances of money through the mail by means of false representations concerning the products involved in these proceedings. The specific false representations alleged are set forth in the findings of fact below.
Respondent's answers to the Complaints deny substantially all the allegations in the three Complaints.
On Respondent's motion the hearing location was changed to Fort Lauderdale, Florida, where these matters were heard, along with four other similar proceedings against Respondent, on July 19 - 22, 1983.
All proposed findings of fact, conclusions of law, and arguments submitted by the parties have been considered in arriving at these decisions. To the extent indicated they have been adopted. Otherwise, they have been rejected as irrelevant, immaterial, or contrary to the evidence.
Complainant's witnesses in these proceedings were Postal Inspector Gary D. Cantley and Dr. William R. Ayers, Associate Dean for Undergraduate Medical Education at Georgetown University Medical School.
Respondent's witnesses were Mitchell Kenneth Friedlander, President of Respondent, and, in 16/101 only, Dr. John W. Gaul, an osteopathic physician.
1. Complainant's expert witness, William R. Ayers, is a medical doctor. He is Associate Dean for Undergraduate Medical Education and Associate Professor in the Department of Medicine and Pediatrics in the Georgetown University School of Medicine. He is also Medical Director of the Georgetown Diet Management Program. He is board certified in internal medicine. He has a particular interest in weight control and has several published articles in that field. In addition to setting medical policy in the Diet Management Program, he examines and treats a large number of patients with overweight problems in that program. He keeps current in medicine, including weight control, by regularly reading appropriate respected medical journals. He has testified as an expert in obesity and nutrition in numerous other Postal Service proceedings. His special expertise extends to the vascular system (Tr. 113, 117). Dr. Ayers was exceptionally well qualified to testify on the falsity issues in these proceedings (CX-1; Tr. 113-125).
2. Respondent's expert witness in P.S. Docket No. 16/101, John W. Gaul, is an osteopathic physician who engages in general practice in Davie, Florida, with particular interest in preventive medicine and nutrition. He has a Ph.D. in nutrition (obtained in an off-campus program of about 1 1/2 years) from Donsback University, Huntington Beach, California. He is a member of numerous osteopathic associations, the American Society of Orthomolecular Physicians, the International Academy of Metabology, and the American College of Applied Nutrition. Dr. Gaul did not know whether Donsback University is an accredited institution of higher learning (Tr. 421-434).
P.S. Docket No. 16/98
3. Respondent, The Robertson-Taylor Company, at the first two addresses set forth in the caption hereof, by means of advertisements and promotional material appearing in generally circulated publications and sent through the mail to prospective customers, seeks remittances of money or property through the mails for its product Calor-Bloc 30 (Tr. 11, 12; CX-1e - 9e; CX-11e, 23c, p. 5; CX-19b, 20b, p. 2; Admissions E-1, 2). Attached hereto as Exhibits A, B and C are examples of Respondent's advertisements (Ex. A, "Weight Loss" format; Ex. B, "Block Excess Calories" format; Ex. C, Short Form format).
4. Customers ordering Calor-Bloc 30 from Respondent receive a powder with the package label shown in CX-13e, wafers with the package label shown in CX-12e, and a brochure (CX-14e) (Respondent's Answer at paragraph 2, Stipulations at Tr. 10, lines 3-5, and Tr. 11, lines 4-6; Admissions at E3, E4, E5).
The brochure received by persons ordering Calor-Bloc 30 instructs them to take 2 servings of powder with milk and 10 wafers with milk on the so-called "on-day" of the program. This amounts to 700 calories. Participants are not permitted to eat anything else on the "on-day", but may eat all they want on the so-called "off day." They are also advised to follow the exercise routine specified 5 days a week, for a total of 20-30 minutes of exercise per day. The exercises include running in place, stretching, pushing, kicking, and sit-ups.
5. Respondent's advertisements represent that ingestion of Calor-Bloc 30 by the ordinary obese person will increase, and maintain at the higher level, the rate at which the body burns calories (Complaint, paragraph III-1). This representation is found in the advertising format with the "Weight Loss" caption (Ex. A):
Fact: The Calor-Bloc 30 caloric interchange compound feeds the firm "muscle" tissue while a higher metabolic set-point burns away fat and flab at an incredible faster rate of speed. ...
Calor-Bloc 30 will provide the stimulus to effectively "boost" and maintain an excellerated sic metabolic set-point. Your body will evaporate excess calories and stored fat at a faster rate. (e.g. CX-6e)
6. Respondent's advertisements represent that ingestion of Calor-Bloc 30 will cause loss of fat without restriction of food intake and without exercise (Complaint, paragraph III-2).
The "Block Excess Calories" advertisement (Ex. B) states that "Calor-Bloc 30 Caloric Interchange Compound" is "the key to eliminate unwanted fat," and that "the secret is the formula." The reader is then advised that this formula works by blocking calories from being absorbed and becoming excess fat. Enhancing the representation that the formula wards off fat, the advertisement next assures the reader that he/she will not be subjected to the normal rigors of a weight loss program. The advertisement states:
Eat your favorite foods, no strenuous exercise.
With Calor-Bloc 30 Caloric Interchange Compound you can eat your favorite foods and still maintain a great bulge free body. Calor-Bloc 30 Caloric Interchange Compound is not a simple "fad" diet that prescribes tasteless, boring foods and hours of daily exercise. With the Calor-Bloc 30 system you can still enjoy hamburgers, ice-cream, pizza, fried-chicken, etc. and no strenuous exercise is required.
7. The "weight loss" advertisements (Ex. A) make the representation alleged in paragraph III-2 of the Complaint in the promises of "weight loss," "a better, slimmer body," and that the compound will "burn" or "evaporate" fat. They also assure the reader that diet and exercise are not required by stating:
Calor-Bloc 30 will do the job without restricting food selection, ridiculous calorie counting or hours of jogging, weight lifting, or costly embarrassing "Fat Clinics."
8. The reader is not informed in the advertisements that food intake must be restricted every other day to the Calor-Bloc wafers and powder plus milk for a total of 700 calories (CX-12e, 13e, 14e, p. 2) nor that 10-15 minutes of exercise, twice-a-day, 5 days a week, is an essential part of Respondent's program (CX-14e, p. 2). The necessity of diet and exercise is not revealed until the purchaser receives the product and accompanying brochure (CX-14e).
9. The word "system" attached to Calor-Bloc 30 in some of Respondent's recent ads does not disclose or imply the requirement of diet and exercise to achieve the promised weight losses because where the ads mention diet and exercise it is in a cleverly designed context which implies the opposite: no diet, no exercise.
10. Respondent's advertisements represent that ingestion of Calor-Bloc 30 is effective to produce firm muscle tissue (Complaint, paragraph III-3).
This representation serves as one of the themes of the "weight loss" advertisements (Ex. A). The advertisement explains that "you can weigh 135 lbs., look overweight, flabby and out of shape, or, you can look 'great' if the 135 lbs. is made of lean compressed 'muscle type' tissue." The advertisement next proposes Calor-Bloc as the solution, stating that the compound "feeds the firm 'muscle' tissue." The notion that it is not merely the number of pounds but the "type" of pounds ("lean, compressed tissue" vs. "flab") which is important to appearance permeates this advertisement, and Calor-Bloc is cited as the means to secure those muscular, lean pounds. For example, "Calor-Bloc 30 ... is ... for women who are interested in the way they look rather than how many pounds they weigh" or "You are guaranteed more than weight loss] We guarantee you a better body]"
11. Respondent's advertisements represent that ingestion of Calor-Bloc 30 will, without effort or willpower on the user's part, cause development of muscle tissue, loss of weight, and reduction of fat (Complaint, paragraph III-4).
This representation is found in the following language in the "weight loss" advertisement (Ex. A):
"Developed especially for people on the go. Effortless, automatic, weight loss Guaranteed]"
The representation is reinforced by Respondent's assurance that "restrictive food selections, ridiculous calorie counting or hours of jogging, weight lifting" are unnecessary, and that Calor-Bloc will "give you body the edge 'automatically'."
12. Respondent's advertisements represent that the ingestion of Calor-Bloc 30 will prevent the food you eat from turning into unwanted fat and excess weight (Complaint, paragraph III-5).
This is the main message to the consumer found in the "Block Excess Calories" advertisement (Ex. B). The advertisement's bold heading "BLOCK EXCESS CALORIES," and its subheading, "The Calor-Bloc 30 system prevents excess calories from being absorbed and turned into unwanted fat," lead the reader to believe that this formula will prevent food from becoming fat and excess weight. The name of this product, "Calor-Bloc-30", also conveys this impression. The text of this advertisement explains to the reader that he can eat ice-cream and pizza and other fattening foods because Calor-Bloc "actually prevents fat producing calories from being absorbed into the digestive system." The statement of guarantee reminds readers that "Calor-Bloc-30 Caloric Interchange Compound is a new formulation that simply prevents excess calories from being absorbed and turned into unwanted fat." Although the reader is warned that this is not a "starch blocker," the statement does not negate the repeated claim in the advertisement that this formula blocks excess calories from entering the digestive system and blocks the formation of fat.
This representation is also found in the short format advertisement used by Respondent (Ex. C). There Respondent states that the compound "prevents excess calories from being absorbed and turned into unwanted stored fat."
13. The ingredients of the Calor-Bloc 30 wafer are listed on the label as follows (CX-12e):
INGREDIENTS: Nonfat Dry Milk, Soy Protein, Vanilin, Lecithin, Dry Honey, Magnesium Oxide, Artificial Color, Sodium Ascorbate. A-Tocopheryl Acetate, Ferrour Fumarate, Niacinamide, Vitamin A Palmitate, Zinc Oxide, Copper Gluconate, Calcium Pantothenate, Pyridoxine Hydrochlonde sic , Thiamine Mononitrate, riboflavin phosphate, folic acid, Vitamin D3, Biotin, Potassium Iodide, Vitamin B-12, Lapsang Tea, Aspartame, Syloid.
The ingredients of the Calor-Bloc 30 powder are listed on the label as follows (CX-13e):
INGREDIENTS: Nonfat dry milk, soy protein, vanilin, lecithin, magnesium oxide, artificial color, sodium ascorbate, A-Tocopheryl acetate, ferrous fumarate, niacinamide, vitamin A Palmitate, zinc oxide, copper gluconate, calcium pantothenate, pyridoxine hydrachloride, thiamine mononitrate, riboflavin phosphate, folic acid, vitamin D3, biotin, potassium iodide, vitamin B-12, lapsang tea, aspartane, syloid.
14. The following findings relating to the issue of falsity of the representations found above are based on the testimony of Complainant's expert witness, Dr. Ayers (Respondent did not present an expert witness in this proceeding):
a. There is nothing in the product (either wafer or powder or both), a combination of various vitamins, minerals, proteins, sweeteners, dry milk, and niacinimide, the ingestion of which will result in loss of fat (Tr. 126-128, 202, 203); that will increase and maintain at a higher level the rate at which the human body burns up calories (Tr. 146); that will prevent food from being converted to unwanted fat and excess weight (Tr. 129); that will produce firm muscle tone (Tr. 129, 130); that without effort or willpower on the user's part will cause development of muscle tissue, loss of weight, and reduction of fat (Tr. 136, 137, 202).
b. Diet and regular and moderate exercise, and for persons with established obesity, an additional element, psychological counseling, are the methods by which weight loss are achieved (Tr. 134-135). Flabby or soft muscle tissue firms up through exercise (Tr. 129, 134). Such regimens require discipline, changes in dietary habits, including restrictions on food intake, and development of new approaches to food. They demand effort, willpower and a commitment on the part of the patient (Tr. 135, 174). Persons looking for a quick fix, such as persons responding to Respondent's advertisements, are likely to fail to achieve weight loss (Tr. 176, 208).
c. The foregoing findings relative to the lack of efficacy of the product are not altered under the metabolic set point theory (Tr. 146). That theory is that an individual's weight is set around a base weight determined by his metabolic set point which is equilibrium (for the individual) between the amount of energy taken in and the amount expended (Tr. 141, 142). Diet, exercise, medication and body temperature affect the set point (Tr. 142). Although diet lowers caloric intake it also decreases the rate of energy utilization. The decrease in the rate of energy use can counteract the effect of reduced caloric intake (Tr. 144). Physical activity, however, counter-balances the fall in the rate of energy utilization (Tr. 145). This theory is generally applied to the obese person (Tr. 146). The Calor-Bloc formula has nothing to do with metabolic set-point theory (Tr. 146). The formula does not increase energy utilization as Respondent's "Weight Loss" advertisement states (Tr. 146). Under this theory, it is exercise which increases the rate of energy utilization (Tr. 145). The brochure which accompanies Respondent's product, in contrast to its promotional materials, confirms this point (CX-14e, p. 2 "The Metabolic Set-Point").
15. The opinions expressed by Dr. Ayers on which the preceding findings of fact are based are in accord with the informed medical consensus (Tr. 204).
16. The representations made by Respondent concerning Calor-Bloc 30 as found above are materially false in fact.
P.S. Docket No. 16/101
Derma-Tec 90 and Mamralin-BX
Breast Augmentation Creams
17. Respondent, at the addresses set forth in the caption hereof, by means of advertisements and promotional materials appearing in generally circulated publications and sent through the mail to prospective customers, seeks remittances of money or property through the mails for its products Derma-Tec 90 and Mamralin-BX Breast Augmentation Creams. (Tr. 48-55; CX-1a - 7a, 8a, 9a, 10a, 14a, 16a, 23a, 19b, 20b (p. 2), 100, 101; Admissions A1, A3, A4, and CX-A attached to Admissions).
18. Persons ordering Derma-Tec 90 Breast Augmentation Cream receive a jar of cream labeled with one of the following instructions for use and list of ingredients:
Usage: Smooth a small amount of Breast Augmentation Cream over the entire breast area. Massage liberally until creme is absorbed. A warm sensation or tingling in the area of application is normal & expected. Do not use on face. KEEP OUT OF REACH OF CHILDREN.
Ingredients: Water, lauryl lactate, glyceryl stearate, propylene glycol, cetearyl alcohol, stearic acid, soluble collagen, mynstyl myristate, Ceteth 2, triethanolamine, imidazolidinyl urea, niacin, horse chestnut extract, fragrance, methyl paraben, glycol stearate, propyl paraben.
. . .
Usage: Smooth a small amount of Mamralin-BX over the entire breast area. Massage vigorously until creme is absorbed. A warm sensation or tingling in the area of application is normal & expected. Do not use on face. KEEP OUT OF REACH OF CHILDREN.
Ingredients: Filtered Water, Propylene Glycol, Glycerin, Niacin Amide, Zinc Stearate, Stearic Acid, Lanolin, Benzyl Alcohol, Potassium Hydroxide. Mineral Oil, Methylparaben, Cetyl Alcohol, Collagen, Hydrolyzed Elastin, Propylparaben, RD&C Red No. 40.
19. Persons ordering Mamralin-BX receive a container of cream with instructions for usage and a list of ingredients identical to those in CX-13a for Derma-Tec 90, supra (CX-20a).
20. Attached hereto as Exhibits D, E, and F are typical advertisements of Respondent for Derma-Tec 90 Breast Augmentation Cream (CX-1a, 2a) and Mamralin-BX (CX-8a).
21. As alleged in paragraph II-1 of the Complaint as amended, Respondent's advertisements represent that topical application of Derma-Tec 90 Breast Augmentation Cream or Mamralin-BX will cause a noticeable enlargement of the user's breasts.
The advertisements for these products expressly promise this result. Derma-Tec 90 is described in the advertisement and order form as a "Breast Augmentation Cream." The heading of the full page advertisement contains the following language in large print: "Larger, Firmer Breasts with Derma-Tec 90 Breast Augmentation Cream." The entire text of this advertisement is devoted to promising the reader again and again that this product will cause a noticeable enlargement of the breast. Following are examples of the advertising copy which convey this representation:
(1) "Derma-Tec Breast Augmentation Cream will enlarge your breasts moments after application." (large, bold print)
(2) "Your breasts will actually become larger in size right before your very eyes ..."
(3) "The noticeable enlargement of the breast is produced by active stimulators ..."
(4) "Larger Breasts guaranteed]" (Ex. D)
The shorter form of the Derma-Tec 90 advertisement conveys this same idea--albeit with far fewer words. It says simply: "Breast Enlargement]]] Derma-Tec 90 Breast Augmentation Cream. The Realistic Alternative to Breast Augmentation Surgery." (Ex. E)
The full-page Mamralin-BX advertisement (Ex. F) makes the representation as follows: The advertisement is headed "Researchers develop 'assigned dilation' for Scientific Breast Enlargement." The advertisement next describes in the following language how this product produces enlargement.
Mamralin-BX is a new effective scientific compound that is capable of channeling added amounts of body mass to specific areas of the body that are capable of naturally induced expansion. The breasts (because of the extraordinary properties of breast tissue) are capable of this type of expansion, and the Mamralin-BX Formula can trigger the precise mechanisms which will produce larger, more sensitive, sexual breasts and do it fast, safely and without the permanence or scarring you gamble with if you undergo breast augmentation surgery.
The advertisement claims in bold, large type "the secret is the exclusive Mamralin-BX Formula." It indicates that Mamralin-BX "will create a series of biological actions that will, simply stated, expand the capacity of the breast to accept additional body mass." The reader is told: "You no longer have to feel short-changed." A picture of a woman with an unbuttoned shirt partially disclosing ample breasts clears up any possible doubt as to what is being promised.
The short form advertisement for Mamralin-BX (CX-19B, p. 2) also promises users noticeable breast enlargement. It is nearly identical to the short form used to promote Derma-Tec 90 Breast Cream, and reads:
Mamralin-BX Breast Augmentation Cream
Mamralin-BX Breast Augmentation Cream.
The realistic alternative to Breast Augmentation Surgery.
22. As alleged in paragraph II-2 of the Complaint, Respondent's advertisements for Derma-Tec 90 Breast Augmentation Cream represent that the cream will cause a measurable, if temporary, increase in the amount of breast tissue.
Respondent's advertisement states that this "incredible augmentation cream is applied as a massage and penetrates the outer layers of your breast tissue" and "will activate and ENLARGE the bust" and goes on to state that the "noticeable enlargement of the breast is produced by the active stimulators, Vaso Dilators, Dermal Hydration Compounds that are present in complex base formulation of tissue builders and skin strengtheners." emphasis supplied (Ex. D).
The only mechanism for breast enlargement mentioned in lay language in the advertisement is tissue building. There are contributory mechanisms suggested in technical terms (such as "vaso dilators") which are not likely to be understood by the average reader. I conclude that the advertisement does, in the quoted language, make the representation alleged.
23. According to Dr. Ayers, topical application of Derma-Tec 90 or of Mamralin-BX to the female breast will not cause noticeable enlargement of the breast and the topical application of Derma-Tec 90 will not cause an increase in the amount of breast tissue (Tr. 231). Respondent's doctor agreed that these products would not noticeably enlarge the breast although the vasodilation produced by niacin in one of the Derma-Tec 90 formulations would probably cause the user to feel increased fullness of the breast (Tr. 448, 453).
24. Niacinamide contained in Mamralin-BX and another of the Derma-Tec 90 formulations is not a vaso dilator (Tr. 240, 242; CX-2, p. 568; CX-3, p. 811; CX-4, p. 15) and, therefore, would not even contribute to a feeling of increased fullness.
25. Vasodilation is the only mechanism advanced by Respondent to support its claim of breast enlargement in prehearing exchange of information (CX-21a) and in evidence introduced at the hearing.
26. The opinions expressed by Dr. Ayers in this proceeding are in accord with the informed medical and scientific consensus (Tr. 251).
27. The representations made by Respondent concerning Derma-Tec 90 Breast Augmentation Cream and Mamralin-BX as found above are materially false in fact.
P.S. Docket No. 16/120
28. Respondent, at the first two addresses set forth in the caption hereof, by means of advertisements and promotional materials appearing in generally circulated publications and sent through the mail to prospective customers, seeks remittances of money or property through the mails for its product Synertrim #9 (Stip. at Tr. 11, 12; CX-1g - 7g, 19-B, 20-B, p. 2, 23-c, p. 5; Tr. 27-29).
29. Persons ordering Synertrim #9 receive a container of cream with a label containing the following instructions for use and list of ingredients (CX-8g):
Usage: Massage a small amount of creme over the skin area you wish to tighten and tone. Allow creme to remain 1 to 2 hours, then wash off. The creme may cause a warm sensation or cause the skin to be pink for a short time. You must start the Synertrim #9 program immediately after application of Synertrim #9 Emulsion. NOT FOR USE ON FACE OR BREAST.
Ingredients: Filtered Water, Propylene Glycol, Glycerin, Zinc Stearate, Stearic Acid, Niacin Amide, Lanolin, Cepsicum, Oleoresin, Benzyl Alcohol, Potassium Hydroxide Mineral Oil, Methylparaben, Cetyl Alcohol, Collagen, Hydrolyzed Elastin, Propylparaben.
They also receive a brochure containing an exercise program (CX-9g). Respondent's advertisements do not mention the exercise program. The brochure advises one who has already purchased the cream that she must start the exercise program within 5 minutes after application of the product and perform the exercises at least 5 days a week.
30. Attached hereto as Exhibits G, H, and I are typical advertisements of Respondent for Synertrim #9 (CX-1g, 2g, 4g).
31. As alleged in the Complaint (paragraphs III-1 and III-3), Respondent's advertisements for the product represent that topical application thereof will cause a loss of body weight and a reduction of body fat in specific areas of the body.
Respondent's "Shape-Up" advertisement (Ex. I) begins by specifying conditions which Synertrim #9 is later proposed to alleviate. "Large thighs" is one of those conditions. The advertisement states that this "incredible formula" will "specifically trim down your thighs." The Respondent next notes that its product was developed by "Weight loss specialists" (as well as "dermal fortification specialists") for "spot reduction." These statements taken together represent that the use of this product will promote weight loss. Synertrim #9 formula is repeatedly referred to as a "spot reduction formula," making obvious that this is its intended purpose. That Synertrim specifically reduces body fat is confirmed by the advertisement's explanation of how the product works. The advertisement states that the formula will "restructure the balance of tissue densities in specific problem areas (adding more compact firm tissue, reducing excess subcutaneous fat)."
The short form advertisement (Ex. G) also holds out Synertrim #9 as causing weight loss and fat reduction by referring to it as a "spot reduction formula," indicating that it will "slim ... the total rear view," and hailing it as the solution to "saggy, bulging thighs, hips and buttocks," as well as cellulite, which is merely subcutaneous fat (Tr. 220-221).
32. As alleged in the Complaint (par. III-2) Respondent's advertisements represent that use of the product will cause a reduction in size of specific body areas such as thighs, hips, and buttocks.
That Synertrim #9 is directed toward the hips, thighs and buttocks is apparent from the illustration of the thighs, hips and buttocks of a woman clad in a bikini (Ex. I). The "Shape Up" advertisement specifically promises that the formulation will "trim down your thighs." By labeling the product a "spot reducing formula," and referring to it this way several times throughout the advertisement, Respondent represents that the formula will reduce the size of specific body areas.
The short form advertisement also makes this representation by claiming that the formula will "slim ... the total rear view," by presenting it as a solution for "saggy, bulging thighs, hips and buttocks" and by identifying it as a "spot reduction formula."
33. As alleged in the Complaint as amended (par. III-6) Respondent's advertisements represent that Synertrim #9 will firm up soft and sagging areas of the body such as thighs and buttocks.
This representation is supported by language in the "Shape Up" advertisement (in the heading and testimonials) to the effect that this product will "shape up" your body. More specifically the formula is represented as dealing with the problem of a behind which is "starting to sag" and "hips and rear" which are "soft and mushy." Synertrim #9 is hailed as that "incredible formula" which will "lift and firm a sagging rear." The advertisement explains that this formula will "restructure the balance of tissue densities in specific problem areas (adding more compact firm tissue, reducing excess subcutaneous fat)." The short form advertisement makes this representation by stating that Synertrim #9 will "shape up your rear end," "tighten, slim and reshape the total rear view" and that it is to be used on "sagging, bulging thighs, hips and buttocks."
34. Respondent's advertisements also represent that the results promised in the representations found above will occur without exercise (Complaint par. III-4).
Respondent's advertisements expressly refer to the "formula" or "emulsion" as effecting the promised results. They omit any mention of the exercise routine which accompanies the formula when received by purchasers. When this omission is combined with affirmative representations of slimming and firming resulting specifically from use of the emulsion or formula, there is an implied representation that the cream and not any undisclosed exercise regimen brings about the results.
35. Respondent's advertisements represent that Synertrim's ability to cause weight loss, a reduction in size of specific body areas such as thighs and buttocks, and a reduction of body fat on specific body areas--all without exercise--has been established by competent scientific tests and studies (Complaint, paragraph III-5).
The "Shape Up" advertisement refers to Synertrim in bold, large print as "a proven scientific treatment." The advertisement's statement of guarantee calls Synertrim a "scientifically documented program." The Respondent explains the development of the product as follows: "Synertrim #9 was formulated by weight loss and dermal fortification specialists at the Robertson-Taylor Company, a division of Intra-Medic Formulations, Inc." These statements imply that the product has been studied and tested in a competent scientific manner, and the results demonstrate that Synertrim #9 is effective to produce the benefits advertised, i.e., weight loss, fat reduction, and decrease in body size.
36. The following findings relative to the falsity issues in this proceeding are based on the testimony of Complainant's expert witness, Dr. Ayers. Respondent's doctor did not testify concerning Synertrim #9.
The topical use of Synertrim #9 without exercise will not cause loss of body weight, reduction of body fat on specific body areas, or reduction of the size of specific body areas such as thighs, hips, and buttocks (Tr. 214, 224, 225). Topical use of the product will not firm up soft and sagging body areas such as hips and buttocks (Tr. 215-217, 226, 227).
The conditions which Respondent's advertisements promise the product will treat are caused by increased subcutaneous fat, stretching of the supporting tissue that binds the skin to deeper structures, and poor muscle tone (Tr. 215, 216). These conditions may be alleviated through weight loss, which will remove the excess subcutaneous fat, and exercise, which will improve muscle tone and firm up soft areas (Tr. 218, 226-227). Topical use of Synertrim #9 will not produce weight loss, improvement of muscle tone, or firm up soft tissues (Tr. 217). These views are in accord with the informed medical consensus (Tr. 218).
37. Respondent failed to produce in accordance with Complainant's request for production any test or studies supporting the representations of efficacy of the product found above. Dr. Ayers' research did not disclose any reports or studies supporting such representations. Therefore, I find to be false Respondent's representation that the efficacy of the product is supported by competent scientific tests or studies.
38. All of the representations alleged in the Complaint as found above are materially false in fact.
1. The meaning of advertising representations is to be judged from a consideration of an advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine, 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 461 (S.D.N.Y. 1957); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959). Express representations are not required. It is the net impression which the advertisement is likely to make upon purchasers to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it the mail fraud statutes are applicable. G. J. Howard v. Cassidy, 162 F. Supp. 568. See, also, Virginia State Board of Pharmacy v. Virginia Citizens Council, 425 U.S. 748 (1976). The foregoing principles of interpretation were employed in arriving at the findings of representations made by Respondent concerning the products involved in these proceedings.
2. The fact that many people may believe that exercise or diet are necessary to lose weight does not prevent the average reader from interpreting Respondent's advertisements for Synertrim #9 and Calor-Bloc 30 as representing that such measures are unnecessary. The New Body Boutique, P.S. Docket No. 11/95, Postal Service Decision on Petition for Supplemental Order and Request for Hearing at pages 8-9 (November 30, 1982), aff'd mem., New Body Boutique, Inc. v. United States Postal Service, Civil Action No. 83-0197 (D.D.C. April 21, 1983); New Body Boutique, Inc., P.S. Docket No. 10/169, Postal Service Decision at p. 10 (July 7, 1982); Specialty Sales Co., P.S. Docket No. 11/79, Postal Service Decision at p. 7 (April 15, 1982).
3. Although informed persons may readily recognize that Respondent's advertising claims are false and absurd, this does not detract from their tendency to "deceive the ignorant, gullible and less experienced." Gottlieb v. Schaffer, 141 F. Supp. 7, 16 (S.D.N.Y. 1956). The false representation statute was intended to protect such persons as well. Donaldson v. Read Magazine, Inc., supra.
4. A descriptive product name is itself a representation of the qualities of the product. Slumber-Shapers, Inc., P.S. Docket No. 2/20, Postal Service Decision (1973). Derma-Tec 90 Breast Augmentation Cream, Synertrim #9 Spot Reduction Formula, and Calor-Bloc 30 Caloric Interchange Compound are such descriptive product names.
5. The exercise program received with a Synertrim #9 order, and the diet and exercise programs received with a Calor-Bloc order, come too late to dispel the impression created by the advertisements that such measures are unnecessary. See Kurzon v. United States Postal Service, 539 F.2d 788, 795 (1st Cir. 1976); The New Body Boutique, Inc., P.S. Docket No. 11/95, Postal Service Decision at p. 7 (July 30, 1982).
6. Evidence, other than Respondent's advertisements and other promotional materials, on the issue of the making of the representations charged in the Complaint is unnecessary. Manuel Garcia Imports, P.S. Docket No. 5/127, Postal Service Decision at p. 5 (1977); Beauty Originals, Inc., P.S. Docket No. 3/24, Postal Service Decision at p. 3 (1975) (" T he cases are legion in which the trier of fact is recalled upon to apply the test of Donaldson v. Read, 333 U.S. 178, without resort to lay testimony.")
7. The average person reading Respondent's advertisements would interpret them substantially as characterized in the complaints as amended.
8. An expert witness may rely on the product label in forming his opinion on the veracity of the advertising claims made for the product. No chemical analysis is required. Vitahair, P.S. Docket No. 7/76, Initial Decision (1978); Derma-Diet, P.S. Docket No. 5/171, Postal Service Decision (1977). The product label may be assumed to be correct, unless Respondent comes forward with evidence that there are additional ingredients in the product. Schiffahrts Laboratories, P.S. Docket No. 3/193, Initial Decision (1976). Respondent did not produce such evidence.
9. Expert opinion testimony need not be based upon tests of the particular product to constitute sufficient evidence of false advertising. Reilly v. Pinkus, 338 U.S. 269, 274 (1949); Original Cosmetics Products, Inc. v. Strachan, 459 F. Supp. 496 (S.D.N.Y. 1978), aff'd, 603 F.2d 214 (2d Cir. 1979), cert. denied, 444 U.S. 195 (1979); Athena Products Ltd., P.S. Docket No. 12/136, Decision on Motions and Initial Decision at p. 30 (August 13, 1982) aff'd, Postal Service Decision (May 16, 1983).
10. The existence of a money back guarantee does not preclude a finding that the postal misrepresentation statute has been violated because a promise of guarantee will not dispel Respondent's false representations. Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746, 751 (S.D.N.Y. 1959); G. J. Howard v. Cassidy, 162 F. Supp. 568, 572 (E.D.N.Y. 1958); Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir. 1939); George M. Ernst, Jr. d/b/a Many Interested Savers, Inc., P.S. Docket No. 13/88, Postal Service Decision (August 4, 1982).
11. The representations made by Respondent concerning the products involved in these proceedings, as found above, are materially false in fact.
12. Complainant has established its case in these proceedings by a preponderance of the reliable and probative evidence of record.
13. Respondent is engaged in the conduct of schemes for obtaining money or property through the mails by means of materially false representations concerning the products involved in these proceedings in violation of 39 U.S.C. § 3005.
14. Orders in the form attached should be issued against Respondent.
This page was posted on July 16, 2004.