May 17, 1960
In the Matter of the Complaint That
MODERN AIDS, INC.
at
New York, New York
(hereinafter called Respondent), is engaged in conducting a scheme for obtaining money through the mails in violation of 39 U.S. Code 259 and 732
P.O.D. Docket No. 1/97
In the Matter of the Complaint that
SLIM FLEX
at
New York, New York
(hereinafter called Respondent), is engaged in conducting a scheme for obtaining money through the mails in violation of 39 U.S. Code 259 and 732.
P.O.D. Docket No. 1/216
APPEARANCES:
J. Carroll Schueler, Esq.
Abraham Levine, Esq.
Office of the General Counsel
Post Office Department
for the Complainant
in P.O.D. Docket No. 1/97
Milton A. Bass, Esq.
342 Madison Avenue
New York 17, New York
for the Respondent
in P.O.D. Docket No. 1/97
Abraham Levine, Esq.
Office of the General Counsel
Post Office Department
for the Complainant
in P.O.D. Docket No. 1216
Solomon H. Friend, Esq.
342 Madison Avenue
New York 17, New York
for the Respondent
in P.O.D. Docket No. 1/216
INITIAL DECISION OF HEARING EXAMINER
This proceeding has had a somewhat prolonged history which it is not necessary here to detail because the procedural steps may be traced by perusing the file.
The Respondent, Modern Aids, Inc., of 16 West 61st Street, New York 23, New York, is engaged in the sale through the mails of an electrically operated vibrating device called Vibra-Slim.
The Complainant, the General Counsel for the Post Office Department, charged that the Respondent, in the sale of this device, is engaged in conducting a scheme proscribed by Sections 259 and 732 of Title 3, United States Code. The scheme consists of obtaining and attempting to obtain remittances of money through the mails by means of the following allegedly false and fraudulent representations:
a. That by use of the device called "Vibra-Slim:, as described by respondent, any obese person will be able to "select the spot that needs slimming most" and the device will "AUTOMATICALLY REDUCE EXCESS INCHES FROM [his or her] WAIST, HIPS, THIGHS, TUMMY… quickly, easily, and pleasantly", will reduce and eliminate "fatty, unsightly (sic) … lumps, bumps or bulges on [his or her] calves, thighs, back, shoulders or buttocks", and the user will be able to "whisk away pot belly", and "enjoy the luscious, more attractive figure of [his or her] dreams"; i.e., that any obese person will be able to effectively "spot reduce" or metabolize and eliminate fatty or excess tissue in any area of the body solely by use of "Vibrato-Slim" as directed and irrespective of the user's daily caloric intake.
b. That the said device "stimulates circulation" and is an "effective aid in firming sagging skin [and] remolding flabby flesh and shapeless fatty tissue into smooth graceful curves; i.e., that the said device when used as directed will enable any person to eliminate or remedy a sagging or flabby condition of the skin or tissue of his or her body, regardless of the cause or causes of said sagging or flabby condition.
c. That the said device will bring "blessed, quick relief" from "rheumatic-like symptoms" and "lower back pains"; i.e., that the said device when used as directed is an effective treatment for rheumatism and sundry other kindred ailments including the painful symptoms thereof for any person so afflicted;
d. That any person who is suffering from a "throbbing headache" or "taut nerves", and whose "every movement makes [him/her] want to cry out for relief", will "find tortured nerves soothed [and] throbbing pain eased away" by use of "Vibra-Slim" as directed; i.e., that any person suffering from severe, "throbbing" headaches or "tortured" nerves, regardless of the cause or causes thereof, will be afforded an immediate and effective treatment therefore or cure thereof by the use of "Vibra-Slim" as directed.
The case came on for hearing before me, and both parties were represented at the hearing by counsel who participated in the examination and cross-examination - in person and by written interrogatories - of the witnesses. Counsel also filed proposed findings of fact and conclusions of law, together with supporting briefs.
During the pendency of the Modern Aids proceeding, another case arose involving an electric vibrating device, known as Slim-Flex, being offered for sale through the mails by Slim-Flex, 41 Union Square, New York 3, New York.
In a separate complaint, the General Counsel for the Post Office Department alleged the infraction of the aforementioned statutes by the new Respondent, Slim Flex, charging that the following representations were falsely and fraudulently being made:
a. That by use of the device called "SLIM FLEX", as directed by Respondent, any obese person will be able to "SPOT REDUCE…TUMMY-HIPS-WAIST-THIGHS" and "Take Off Those Hated Extra Pounds and Inches" and acquire a "home salon" method [which] helps you trim away unwanted pounds and inches * * *" and "improves silhouette!", i.e., that any obese person will be able to effectively "spot reduce" or metabolize and eliminate fatty or excess tissue in any area of the body solely by use of "SLIM FLEX" as directed and irrespective of the user's daily caloric intake;
b. That "Stimulating Slim-Flex pulsations promote healthful circulation * * *", i.e., that the said device when used as directed will enable any person suffering from impaired blood circulation to derive the beneficial effects of an improved and corrected circulatory system regardless of the underlying cause or causes of such impaired circulation;
c. That said "pulsations * * * aid in weight redistribution thus helping to re-mold your figure";
d. That the use of said device, as directed," * * * helps condition and tone muscles. . .helps firm and tighten sagging skin!", i.e., that the said device when used as directed will enable any person to eliminate or remedy sagging or flabby condition of the skin or tissue;
e. That the use of said device, as directed, "HELPS RELIEVE ACHES AND PAINS", i.e., that any person suffering of aches and pains will be afforded an immediate and effective treatment or cure therefrom, regardless of the cause or causes thereof;
f. That the said device constitutes a "* * * modern marvel of passive exercise without lifting a finger!", i.e., that the effect of the use of said device is physiologically comparable to the effects of "passive exercise";
g. That the said device is a "minute-a-day" slenderizer and that any user thereof, "for 10 full days" as directed by Respondent, will be "satisfied in every way", i.,., that the use of said device, as directed, for only minutes daily, will enable any user thereof to derive all the benefits heretofore mentioned.
Because of the similarity of the vibrating devices and the similarity of the evidence that would be adduced in both cases, counsel stipulated that the record in the Modern Aids proceeding could be treated as the record in regard to Slim Flex. The final proposed findings of fact, conclusions of law and support briefs were filed on March 30, 1960.
It has been admitted on behalf of each Respondent that the mails are used in the conduct of the business and that the advertisements introduced as evidence and attributed to each respondent were in fact used by them. The Respondents deny that they are operating a scheme in violation of 39 United States Code 259 and 732.
The representations involved in the Modern Aids case will be dealt with first.
Insofar as the Vibra-Slim device is concerned, there is no difficulty in determining that it is represented in the advertisements that the use of the device will result in a reduction of weight by the user. The Respondent argues that all that is represented is that there will be a reduction in measurements. While there are some references to measurement reductions in the advertisements, this argument is but an exercise in semantics because in order to reduce measurements it is necessary to reduce the mass which produces the measurements. Furthermore, if persons were interested solely in a reduction in measurements they could purchase a corset or some other constricting garment and achieve this result at less expense than would be entailed in the purchase of a Vibra Slim. One example, from many which could be chosen, will serve to illustrate that the Respondent is promising a loss of weight. On Exhibit A-4, there is a drawing of a woman with a sylph-like figure against a background of a female form with obvious bulges of fat. Over this drawing are the words "COME OUT OF THE SHADOWS OF FLABBINESS," and underneath the drawing the reader is exhorted "DON'T PUT IT OFF . . . TAKE IT OFF". Under any reasonable construction, these words and this drawing indicate that excess weight will be removed, and, since the Respondent is selling Vibra Slim, the obvious indication is that the weight will be removed by the use of Vibra Slim. This type of language and suggestion permeates the Respondent's advertising matter. I find that the Respondent makes, in substance, the representation charged in paragraph 3a. of the complaint.
The language quoted in paragraph 3b. of the complaint appears on Exhibit A-4 underneath the drawing which portrays a woman looking at television while reclining on a cot with a Vibra Slim under her waist and chest. I find that the Respondent makes the representation set for in paragraph 3b. of the complaint.
With respect to the charge contained in paragraph 3c. of the complaint, there was omitted from the language an important word - "temporary". The portion of the advertising literature upon which this charge apparently was based appears under the heading "Older Folks" at the bottom of the page of Exhibit A-3 on which the money-back guarantee is printed. In other words, the Respondent states that the relief offered will be "temporary" as well as "blessed" and "quick". I find that the Respondent has not made a claim for the device in so broad language as appears in paragraph 3c. of the complaint.
The paragraph set forth in paragraph 3d. of the complaint is presumed to be predicated on language appearing on the bottom of the page of Exhibit A-3 on which the money-back guarantee is printed. The quoted language in the charge is taken from the left-hand column and from the language which follows the word "housewives," in the middle of the page. This representation is made as charged.
Three eminently qualified physicians[1] testified that the first representation found to have been made by the Respondent is false.
Dr. S. William Kalb, of Newark, New Jersey, testified with respect to a test he had conducted involving sixty patients. Forty of these patients were placed on a low-calorie diet, and each of them also received two massages a week for a total period of one hour and forty minutes. The remaining twenty patients were on no diet but they did receive fifty minute massages twice a week for six weeks. Dr. Kalb's conclusion was that:
"General body massage or local massage by means of a vibrating machine, alone, is ineffective in decreasing total body weight or the circumference of a limb in patients with obesity."[2]
Dr. Charles S. Wise, Washington, D.C., conducted a test involving five persons who received messages with an electric vibrating device, not identical with Vibra Slim, for thirty minutes daily over a period of two months. His conclusion was that:
"On the basis of the two month evaluation recorded herewith in five female subjects, there was no evidence of any significant change in hip or waist measurements with the use of [the device], as claimed in their accompanying instructions. If further information is desired, I shall be glad to furnish physiological reasons why one would not anticipate local changes in circumference of the trunk or extremities by the application of local massage. * * *"[3]
When asked for his opinion about Vibra Slim as an aid to weight reduction, Dr. Wise stated (Tr. 85):
"It is my opinion that this vibrating device would have no effect on weight reduction in an individual using it."
Dr. Gordon M. Martin, Rochester, Minnesota, contributed a chapter entitled "Use of Baths, Massage, and Exercise in Reduction of Weight" to a book, "Your Weight and How to Control It," edited by Dr. Norris Fishbein and published by Doubleday & Co., Inc., in 1949. In this work Dr. Martin stated that:
"All scientific studies of massage to date do not give any indication whatsoever that massage of any type can be an effective reducing measure."
Dr. Martin testified that this statement represents his present opinion.
I find that the representation set forth in paragraph 3a. of the complaint and heretofore found to have been made by the Respondent is false.
The second claim found to have been made by the Respondent is of a dual nature. One part deals with the stimulation of the circulation of the user and the other part has to do with the firming of sagging, flabby flesh. Concerning the claimed stimulation of circulation, the medical testimony is divided, with the weight of the evidence supporting the proposition that the use of the device may have some such effect underneath the immediate area to which the device is applied. (Dr. Kalb, Tr. 43; Dr. Martin, deposition of July 2, 1959, pp. 8, 21, 28; deposition of November 11, 1959, p. 4.) Thus, while it would appear from the Respondent's sales literature that an increase in the efficiency of the general circulatory system of the user of Vibra Slim is being promised, the Respondent is charged with promising only that circulation will be stimulated, and, since the evidence indicates that circulation is stimulated slightly in the area to which the device is applied, this representation, as charged, is true and I so find.
Concerning that portion of the second of the Respondent's representations which relates to the restoration of elasticity to sagging, flabby skin, the doctors were in agreement that the use of Vibra Slim would not produce this result. (Dr. Kalb, Tr. 25; Dr. Wise, Tr. 87; Dr. Martin, deposition of July 2, 1959, pp . 8 and 9.) Dr. Martin did say that a Dr. Kovacs had made statements to the effect that massage would restore elasticity to skin which had become saggy due to diet (deposition of July 2, 1959, p. 25), and that a Dr. Mennel agrees with Dr. Kovacs (deposition of November 11, 1959, p. 13). Dr. Martin pointed out, however, that Dr. Kovacs emphasizes primarily the use of manual massage (deposition November 11, 1959, pp. 3, 16) which is entirely different than the type of massage obtainable from mechanical massage devices (deposition November 11, 1959, p. 9). Dr. Martin stated that "There is no scientific evidence that massage machines will improve or maintain elasticity of tissues." I find the portion of this representation in which it is claimed that sagging, flabby skin or flesh will be made firm, or that its elasticity will be improved, by the use of Vibra Slim is false.
The last representation made by Modern Aids about Vibra Slim charged by the Complainant as being false relates to its capability to relieve "throbbing headaches" and "taut nerves." The expert medical testimony on this subject is to the effect that persons who use the device might receive some subjective benefit or psychological relief from simple headaches (Dr. Kalb, Tr. 15, 64), but it was made clear that no relief would be received from headaches which have more deep-seated causations (Dr. Kalb, Tr. 22-24; Dr. Martin, deposition July 2, 1959, p. 16). I find this representation to be false.
We turn now to the claims which the Complainant charges that the Respondent, Slim Flex, falsely and fraudulently makes with respect to the electric vibrating device know as Slim Flex.
A comparison of Department Exhibit A in the Slim Flex case with the representations set forth in paragraphs 3a. through 3g. of the Slim Flex complaint is sufficient to establish that the Respondent makes the claims for its product ascribed to the Respondent by the Complainant.
Based upon the testimony in the Modern Aids case I find that representations 3a., 3c., 3d. and 3e. are false. Sufferers from aches and pains mentioned in paragraph 3e. of the complaint might receive temporary subjective or psychological relief if their aches and pains are minor and of non-organic origin, but sufferers from discomforts caused by serious organic diseases would not be helped as indicated by the testimony previously cited. With respect to the representation in paragraph 3b. of the complaint, it is pointed out that the Complainant asserts that the Respondent claims that the use of this device will benefit the circulatory system of the user. This is the impression created in the mind of the reader and the evidence in the Modern Aids case establishes the falsity of this claim, and I so find. In Modern Aids, because of the wording of the alleged representation, this question was resolved in favor of the Respondent. A different question is presented in Slim Flex.
The representation that the device constitutes passive exercise (paragraph 3f. of the complaint) is refuted by the testimony of Dr. Kalb (Tr. 38-42) and Dr. Martin (deposition July 2, 1959, pp. 5-6, 14 and 22). This testimony is to the effect that exercise involves activity and the expenditure of energy by the person involved in the exercise while massage involves activity and the expenditure of energy by the masseur.
Concerning the representation set forth in paragraph 3g. of the Slim Flex complaint, it follows that if no weight or measurement reductions, no improvements in the circulatory system, and the like, would ever result from the use of this device, its use for ten days certainly would not achieve the promised results.
Counsel for both Respondents argue on brief in each case that in the literature used by each Respondent in the sale of each device a program or method is mentioned. The words "program," "method" and "diet" are used in the advertisements, but the references to "program" and "method" indicate that they are intended to relate to the method of using the vibrating device and the program of daily usage of the device. References to "diet" are so infrequent, so casual, so widely separated and so obliquely stated that the reader is unmindful of them unless he reads the advertisements with a meticulous eye and a concentrated attention. The overall impact of the representations in the advertising matter is overwhelmingly to the effect that the results promised will be produced by the use of Vibra Slim or Slim Flex. As the court said in Donaldson v. Read Magazine, 333 U. S. 178, 189:
"Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. [Not every sentence in Vibra Slim and Slim Flex advertising is 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."
Having dealt separately in each case with the questions of (1) whether the Respondents made the representations attributed to them and (2) the truth or falsity of those representations, the question of fraudulent intent in both cases may now simultaneously be discussed.
The agreement of the testimony of the expert medical witnesses Kalb and Wise already has been shown. Each witness stated that the testimony he had given reflects the consensus of modern, informed medical opinion on the subjects about which they had testified. (Dr. Kalb, Tr. 36; Dr. Wise, Tr. 87 and 106.) Dr. Martin, whose testimony also agrees with that of Drs. Kalb and Wise, stated that his testimony represents the consensus of medical and scientific opinion on the topics of his testimony.
The Respondents insist, however, that this testimony as to the general acceptance among the medical profession of the views of the medical witnesses doe not meet the test established by the Supreme Court in Reilly v. Pinkus, 338 U. S. 269, 276 wherein the Court said that "An intent to deceive might be inferred from the universality of scientific belief that advertising representations are wholly unsupportable ***." The Respondents say that such universality was not established by the testimony of the doctors that their views represent the consensus of modern, informed medical and scientific belief. In other words, the Respondents would apply what for a time was considered to be the rule laid down by the Supreme Court in American School of Magnetic Healing v. McAnnulty, 187 U. S. 94.
One of the reasons which prompted the Supreme Court to grant certiorari in the Pinkus case was to deal with "important questions concerning the scope of the McAnnulty case * * *."(Pinkus, supra, at page 273) On this point the Court said:
"We do not understand or accept it [the McAnnulty case] as prescribing an inexorable rule that automatically bars reliance of the fact-finding tribunal upon informed medical judgment every time medical witnesses can be produced who blindly adhere to a curative technique thoroughly discredited by reliable scientific experiences." (id., p. 274)
This holding by the Court was accurately pointed up by Dr. Martin in his deposition of July 2, 1959, in the following question and answer (p. 11):
"Q. Would you say that there is a universality of informed opinion that mechanical massage devices are worthless for the purpose of reduction of fat, and specifically for so-called spot reduction?
A. If universality is a term used to include everyone, I would say no, since I am sure that there may be some few individuals who may be of the opinion that such gadgets may be of some benefit in spot reducing."
Later Dr. Martin said that his views expressed the consensus of informed, contemporary medical and scientific belief.
Thus, the Supreme Court in Pinkus did not require absolute unanimity of opinion, and, speaking realistically, it is doubtful whether absolute unanimity of medical opinion is ever achieved on any medical question. It is obvious that the testimony in this case meets the Pinkus test.
Aside from the foregoing situation, which in itself provides sufficient basis for an inference of an intent to deceive, the now enlarged rule in the McAnnulty case contemplated a situation in which there was medical testimony on both sides of a controversy over the efficacy of a device in the treatment of certain conditions. That situation does not obtain with respect to Vibra Slim and Slim Flex. The Respondents offered no medical witness and introduced no evidence except the report of the test conducted by Dr. Wise, which report showed results adverse to the Respondent's positions. The only statements made in support of their positions are contained in their briefs. However learned in the law counsel may be, their opinions on medical matters are entitled to little weight should they testify, and their arguments on brief certainly do not constitute evidence, although I have read their briefs and have given them serious consideration. It was not even suggested on behalf of the Respondents that they had obtained - or even sought - medical advice before they launched themselves into the sale of their products upon the basis of such glowing claims. Thus, there is no indication that the Respondents had any reasonable basis for believing their advertising representations to be true.
All of the foregoing facts and circumstances lead inevitably to the conclusion that the Respondents in the conduct of their business were motivated by an intent to deceive or that they had such a reckless disregard as to what the truth might be as to amount to the harboring of a fraudulent intent. I so find. (Corliss v. U. S., 7 F.(2d) 455; U. S. v. Pike, 158 F.(2d) 46; Darnell v. Darnell, 200 F.(2d) 747; Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746.)
At the beginning and at the end of the hearing, counsel for the Respondents moved to dismiss the complaint, relying upon Borg-Johnson, supra. Permission was granted counsel to reserve argument on the motion for the briefs. In support of the motion to dismiss, Respondents urge the following points which are said to flow from the Borg-Johnson decision:
1. The Post Office Rules violate section 7(a) of the Administrative Procedure Act, 5 U.S.C. 1006(a), in that they authorize the Judicial Officer to preside at departmental hearings.
2. The Post Office Rules violate Section 11 of the Administrative Procedure Act, 5 U.S.C. 1010, in that they improperly interfere with the hearing examiner system and are, therefore, "a far cry from the mechanical rotation [of hearing Examiners] prescribed by the Administrative Procedure Act."
3. The Court ruling automatically adversely affects numerous other provisions of the present rules of Practice, Procedure and Organization.
As to the first point raised by the Respondents, it is agreed that the substance of the Court's decision is correctly stated. This part of the Court's holding, however, has no bearing on the instant case for the reason that the hearing was conducted by a Hearing Examiner who was appointed to that position in accordance with the provisions of Section 11 of the Administrative Procedure Act, 5 U.S.C. 1010, and who is, therefore, in one of the categories enumerated in Section 7(a) of that Act, 5 U.S.C 1006(a), as being authorized to preside at the taking of evidence. Thus, insofar as this part of Respondents' argument is concerned, Respondents have in no way been prejudiced, and the argument is inapplicable.
The second point in Respondents' argument is related to the first. Legal questions aside, it is a fact that under the Rules of Practice in effect prior to the Borg-Johnson decision, it was possible that the rotation of cases between Hearing Examiners could be less than the "mechanical rotation" mentioned by the Court. The instant case, however, was assigned to the Hearing Examiner who conducted the hearing because of the unavailability on account of illness of the Examiner to whom the case originally was assigned by "mechanical rotation." This argument of Respondents' therefore falls of its own weight.
The third point of Respondents' argument requires but little time to answer. The substance of this argument is that because of the ruling of the Court in Borg-Johnson with respect to the Judicial Officer, and because the Rules in effect at the time the proceeding was initiated sometimes employed the term "presiding officer" so as to include the Judicial Officer, it follows that every rule which contained the magic phrase is void.[4]
It is a cardinal rule of statutory construction that every reasonable effort is to be made to give effect to the intent of the legislative body which enacts a statute which has been challenged. (Pollard v. Bailey, 87 U. S. 520; U. S. v. Cochran, 235 F. (2d) 131, cert. Den. 352 U. S. 941.) It has also been held that an entire act is not invalidated by a finding that a portion of it is invalid. (Presser v. State of Illinois, 116 U. S. 252; U. S. v. Davio, 136 Fed. Supp. 423.) Administrative regulations promulgated pursuant to constitutional or statutory authority have the force and effect of law (Tyson v. Commissioner of Internal Revenue, 68 F. (2d) 584), and the same rules of construction are applicable to them as are applicable to statutes. (Miller v. U. S., 294 U. S. 435)
The specific holding made by the Court in Borg-Johnson is that the Judicial Officer may not conduct hearings required to be heard in accordance with the provisions of the Administrative Procedure Act. This was the Court's decision and that is all the Court decided, so that only that provision of the Rules of Practice of this Department is regarded by the Court as invalid. Thus the phrase "presiding officer" meant and included the Hearing Examiners, and no other person did conduct such hearings and preside at the reception of evidence in these cases subsequent to the Borg-Johnson decision. This contention of Respondents' is without merit. Respondents' motion to dismiss the complaint is denied.
CONCLUSION OF LAW
The Respondents, Modern Aids, Inc., and Slim Flex, both of New York, New York, are engaged in schemes for obtaining money through the mails by means of false and fraudulent pretenses, representations and promises as proscribed by Sections 259 and 732 of Title 39, United States Code.
The Respondents requested the making of the following proposed findings of fact and conclusions of law:
1. The complainant has failed to prove by substantial evidence fraud in fact, i.e., that representations have been made in its literature and that such representations are false in fact.
2. The complainant has failed to prove by substantial evidence an intent to deceive.
3. The current Rules of Practice, Procedure and Organization are violative of the Administrative Procedure Act.
For the reasons stated herein, Respondents' proposed findings of fact and conclusions of law are rejected.
All proposed findings of fact and conclusions of law submitted by the parties have been fully considered and they are adopted to the extent herein indicated. Otherwise, such proposals are denied for the reasons stated or because of their immateriality.
Attached hereto for execution by the Judicial Officer are the appropriate orders for the suppression of the fraudulent enterprises herein found.
William A. Duvall
Chief Hearing Examiner
[1] See pages 8, 9, 10, 81, 82 and 83 of the transcript of the proceedings, and pages 1, 2 and 3 of the testimony of Dr. Martin taken by interrogatories on July 2, 1959.
[2] The Journal of the Medical Society of New Jersey, November, 1944, Vol. 41, page 406. See Department's Exhibit D.
[3] Respondent's Exhibit 1.
[4] On February 24, 1960, new Rules of Practice were published in the Federal Register (25 F.R. 1590) eliminating from the language of the rules the provisions concerning which Respondents now complain.