In the Matter of the Complaint Against LADY AMPLE, INC. at Houston, Texas P.O.D. Docket No. 1/37; 12/09/58 Ablard, Charles D.
A complaint was filed by the General Counsel on July 31, 1958, alleging that the Respondent was conducting a scheme to obtain remittances of money through the mails by false and fraudulent pretenses and seeking the issuance of a fraud order in accordance with 39 U.S.C. 259. The Respondent is selling to the public through newspaper advertisements and circulars, a device "The Lady Ample" which, it is claimed, will give "natural bust line beauty." An answer was filed by the Respondent denying the allegations of the complaint but admitting use of the mails and that the exhibit which was attached to the complaint was the advertisement used. The Respondent requested a transfer of the hearing to Houston,Texas and this was granted after the Complainant filed no objection. A hearing was held on October 1, 1958, and, after the filing of proposed findings of fact and conclusions of law, the Hearing Examiner rendered an Initial Decision in which he found that the allegations in the complaint were true and recommended the issuance of a fraud order against the Respondent.
The Respondent filed exceptions to the Initial Decision on November 12, 1958. November 24, 1958, was the date set for the filing of a reply brief by the Complainant but none was received. The exceptions of the Respondent are in general to the findings of falsity, fraud and intent to deceive and to the weight to be placed on certain evidence.
The instrument sold by the Respondent was introduced into evidence. It is a long rubber tube at one end of which is a rubber instrument which attaches to a water faucet. At the other end is a hard plastic cup device. Running water through the instrument attached to the faucet creates a vacuum in the cup at th other end which causes a massaging of the breast. No water touches the breast and alternate suction is created by use of a finger on a hole near the cup. The sale price is $44.50.
In the newspaper advertisement of the Respondent the following appears:
"Develops classic feminine loveliness, well shaped, firm, fully developed bust that men admire and women envy. A naturally developed bustline. Lady Ample unit is used in the privacy of the home and is not a cream or lotion --but-- is a method using a completely new approach to the enhancement of the bust.
Used by Young Ladies, Wives, Mothers and Grandmothers with success that will amaze you. A product for all ages."
A circular of four printed pink sheets 8-1/2 x 11 entitled "The Success of Lady Ample" is sent upon initial response of the customer. Included in this circular are the following statements:
"Now, every normal, healthy woman, regardless of her age, can become a Lady Ample. Science and medical research have shown that female breasts develop naturally only when the tissues are adequately fed with the nourishment carried by the circulatory system."
"Doctors have long known the psychological importance of an attractive, well developed breast to a woman's well being and have stressed the fact that the only way a breast can be properly exercised is by some gentle outside medium that promotes circulation and tones up the underlying tissues. Therefore, to enhance the well being of every woman by helping her gain the Lady Ample Ideal, an instrument has been developed that safely and gently exercises the breasts right in the privacy of the home."
"The Lady Ample Instrument is absolutely safe to use."
Applying the tests of Donaldson v. Read Magazine, 333 U.S. 178 (1947) 1/ and Linden v. U.S., 254 F.2d 560 (C.A. 4th 1958) 2/ . I believe that the quoted provisions of this advertisement and the advertisement considered in its entirety would lead the average reader to believe that any woman with underdeveloped or unsightly breasts would develop a firm, fully developed bust through the use of the device, that it is a safe device recently developed by doctors and that it is an accepted medical fact that such an instrument will produce these results. These are essentially the allegations made in the complaint as to statements in the advertisement alleged to be false.
The Complainant offered the testimony of two medical witnesses. The first was Dr. Lowell B. Baker, a specialist in obstetrics and gynecology (Tr. 34), who testified that it was the consensus of medical opinion that this type of device was worthless for the purpose for which it is sold. (Tr. 62). Dr. Baker had not seen the device before the hearing but stated that the use of massage for breast development has been tried since the 11th and 12th century in Europe but has never been credited with efficacy by the medical profession. 3/ (Tr. 49). The doctor testified that the only effect of such a device would be a temporary swelling of the tissues because of circulation of blood to breast. (Tr. 51). As to the allegation that the device was not safe as represented by the Respondent, the doctor testified that between ten and twenty percent of all human females in the country have breast cancer at one time or another and that this incipient cancer was not easy to diagnose. The doctor testified that should a woman with incipient cancer or latent tumor of the breast use this device it was very likely that the massage created would spread the cancer cells into the blood stream carrying it to every part of the body. (Tr. 58).
Dr. Fred W. Norris, formerly associated with the Food and Drug Administration testified that he had occasion to test similar devices over the past years and it was his opinion and the consensus of medical opinion that such devices were worthless. His testimony was essentially the same as that of Dr. Baker.
The only evidence presented by the Respondent was the testimony of one lay user of the product, Mrs. Gladys Renfrew, who testified of its miraculous affect upon her bosom. It was stipulated that another lay witness would have testified similarly. The weight to be accorded lay testimony is discussed in Moxie v. Holland, 141 Fed. 202 (1905) and U.S. v. 50 3/4 Doz. Bottles, 54 F.Supp. 759 (1944). In the latter case, the court said,
"But the testimony of a few laymen, however honest that testimony may be is of slight value ... The scientific testimony in a case of this character is the testimony that counts."
The examiner placed reliance upon the testimony of the doctors and not the lay witnesses. This was proper and exceptions on that point are disallowed.
The Respondent excepts to the examiner's finding of an intent to deceive. The Supreme Court in Reilly v. Pinkus, 338, U.S. 269, said,
"an intent to deceive might be inferred from the universality of scientific belief that advertising representations are wholly unsupportable."
I believe that the Complainant proved through the testimony of the medical witnesses that such a universality of scientific belief prevailed and therefore an inference of an intent to deceive was raised. No effort was made to rebut this inference and thus it stands.
The Respondent argued that Atlanta Corporation v. Olesen, 121 F.Supp. 482 (S.D. Calif.) was dispositive of the issues in this proceeding. The court in that case enjoined a fraud order against a corporation selling a similar device. The court said that the testimony of the expert witnesses did not show a universality of scientific opinion but commented:
"If the device here was harmful in its operation ... we would be far more concerned than we are on this present record."
There was neither allegation nor proof on the point in Altanta. Lady Ample represents in its advertising that the device is safe and the Complainant alleged and proved the falsity of that statement. If for no other reason these proceedings are thus distinguishable.
I have considered all of the exceptions of the Respondent and they are denied. The Initial Decision of the Hearing Examiner is affirmed and adopted. A fraud order will issue.
1/ "Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such way as to mislead."
2/ "Deception is not necessarily confined to a direct statement of fact. Not words alone, but their arrangement, the manner of their display, and the circumstances in which they are used, may create an appearance which is false and deceptive, even though the words themselves fall short of this. Sometimes circumstances are more eloquent than words, and they impart their meaning to the words used."
3/ U.S. v. One Device, 160 F.2d 194, (C.A. 10, 1947) and Charles of the Ritz v. F.T.C., 143 F.2d 676 (C.A. 21, 1944) held that this type of evidence from experts was substantial evidence upon which to base a finding of falsity.