In the Matter of the Complaint Against

 BRUCE ROBERTS CO.
 at Jersey City, New Jersey

 P.O.D. Docket No. 2/170; 

 APPEARANCES:
 Thomas F. Meagher, Jr., Esq.
 Office of the General Counsel
 Post Office Department
 for the Complainant

 Sidney Schreiberg, Esq.
 52 Broadway
 New York, New York
 for the Respondent

The Complainant in the above-named case has charged the Respondent with conducting a fraudulent scheme in violation of 39 U.S. Code 4005 ¹/ by obtaining remittances of money through the mails by false and fraudulent pretenses and representations.

The Complainant introduced copies of the advertisements mentioned in the foregoing scheme. The Respondent admits making these representations and receiving remittances through the mail but denies the interpretation of them as made by the Complainant in the complaint.

Dr. Lester Maris Dyke was called by the Complainant and was the only witness in the case. There is no question about the qualifications of Dr. Dyke. Along with his medical degrees he has had specialization in general and orthopedic surgery. He is a member of the College of Surgeons and has been director of the Health Service of the University of Illinois, Champaign, Illinois, Urbana and two Chicago campuses from 1952 to 1957. At present he is the Medical Director of the University of Maryland Health Service.

The subject matter of the above-named case is "Isometric Exercises" and the device as shown in the exhibits. Dr. Dyke described the isometric exercises as being essentially tension exercises in which no part of the body is moved. The isotonic exercise is different--a part of the body moves as in walking, running, weight lifting, and push-ups.

After reading all of Dr. Dyke's testimony and the complete record, I am forced to conclude that the field of isometric exercises is new, that these exercises have value, that there is no consensus of opinion as to the degree of value, that even though Dr. Dyke in answer to a specific question on the representations says the representations are either incorrect or untrue, he does admit he has used isometric exercises since 1930 Tr. 111 and has had hospital patients use them. All through his testimony he

qualified his answers. One thing he made clear was that isometric exercises should always have proper supervision. Tr. 109.

Dr. Dyke believes that the isometric exercises described in the Respondent's advertisement representations are exaggerated and in some instances would not have the results as described by the representations.

The Respondent in his cross-examination of Dr. Dyke read statements by Dr. Eric A. Muller, a professor of Physiology at the Max Planck Institute of Dortmund, Germany Tr. 77. Dr. Dyke agreed with the statements but said they called for qualification. The statements of Dr. Muller corroborated the representations made by the Respondent's advertising. The Respondent alluded to a book "Physiology of Strength" by Dr. Theodore Hettinger who is also connected with the Planck Institute at Dortmund, Germany. Dr. Dyke admitted that the book was published by reputable publishers--Charles C. Thomas Tr. 90-94. Relative to Dr. Hettinger's statements, Dr. Dyke concluded with Tr. 98 "I have no quarrel with the medical statements but--with some of the medical statements, but I have got to say, but, and, and so on and so forth."--that Dr. Dyke on the basis of his professional experience regarded the statements as incomplete and inadequate. Dr. Dyke seemed to agree with the truth of these statements made on isometric exercises but disagreed with the degree of value. When Respondent Counsel read passages out of American Journal of Physical Medicine--Vol. 43, No. 1, by Dr. Philip J. Rasch--a physical educator--Dr. Dyke admitted that the isometric exercises have been accepted in departments of physical medicine and rehabilitation in some hospitals and clinics. He acknowledged

that the comparison between isometric and isotonic exercises is still in its infancy Tr. 113. The Respondent questioned Dr. Dyke on excerpts from other books on isometric exercises. He said they may be of value but they shouldn't be used except when there is nothing else. He further stated that "...this form of exercise is a fad, and it is a fad which has blossomed and it has some potential but it just doesn't have the potential that many claim for it." Tr. 129.

The representations in the advertisements used by the Respondent no doubt are exaggerated but there is a strong element of truth in them which does not reflect a fraudulent intent. The law in fraud is well known. Fraud cannot be inferred, it must be proved. ²/ Like the Hearing Examiner I cannot condone the exaggeration of the representations but neither can I say they are fraudulent or that there is an intent to defraud.

The question was raised in the above-named case as to whether or not the Hearing Examiner had the right to request that further questions by Respondent's Counsel on excerpts from certain non-medical books be sent to Complainant's witness, Dr. Dyke, for answer. It was a courtesy to Dr. Dyke that he did not need to be recalled to testify again. To the questions that were to be submitted to the doctor in writing he could answer that he agreed or disagreed, and could qualify his answers. The Hearing Examiner gave permission to file objections to this procedure by a certain date--if objections were not filed that would be taken to mean consent. No objections were interposed within the time allowed so the questions were sent to Dr. Dyke. Under the circumstances I see nothing unusual or improper in this procedure.

In one of the advertisements there is a picture of Mickey Mantle and his son, Mickey Mantle, Jr., under the title "Endorsed by Athletes." It is alleged by the Complainant that this is fraudulent. Mickey Mantle on February 21, 1963, did give beacon Enterprises of 286 Fifth Avenue, New York City, New York, the right to use in brochures, newspapers, and magazines a photograph of Mickey Mantle and that of his son using an "Isometric Minute a Day Gym." The Respondent obtained the basic exercise plan and the "Isometric Minute a Day Gym" manual of instructions from the Beacon Enterprises company. This does not indicate fraud in the value of the representations of the isometric exercises. There is the lack of authorization of the Bruce Roberts Co. to use the photographs but I agree with the Hearing Examiner that "the facts concerning the Mantle photograph and endorsement, aforesaid, in the total evidential context, here present, fail to establish material falsity in Respondent's representations or Respondent's intent to defraud." I further agree with the Hearing Examiner that the vindication of rights in the matter of the consent of Mickey Mantle to use his picture, etc., may be resolved in the proper court.

Respondent's representations relative to "S-X Exercises"--Complainant's Exhibit D-3--are fraudulent. It is admitted by Dr. Dyke, Complainant's witness, "...that improved physical well being is a salutary factor in good sex relations

between a man and a woman." Tr. 73. but he went on to say, "I don't think you can achieve that type of long-lost joy and marital bliss and that sort of thing with this particular program." When the doctor was asked whether these "S-X Exercises"--Complainant's Exhibit B--would "reveal any little known tricks, methods or secrets for new marital bliss", he said the representations were untrue. Tr. 74. He did not qualify this answer as he did all through his testimony on the other representations. There was no proof submitted by Respondent that the isometric exercises would reveal "little known tricks, methods or secrets for new marital bliss". There was no proof that "exclusive 'S-X Exercises' enable every married couple to find new joy and happiness." Dr. Dyke claimed the representations on Complainant's Exhibit D-3 and Exhibit B were untrue. At one point he admitted there was exaggeration. Tr. 73. One cannot find fraud where there is truth with exaggeration which stops with puffing. Exaggeration amounts to fraud when there is a willful untruth or where there is a reckless disregard as to what the truth may be. ³/ Other than the effect of good general health on sex, the doctor made no admissions whatsoever as to the effect of the "S-X Exercises" on sex. The representations on the "S-X Exercises" are a fraudulent gimmick used in the sale of the isometric exercises and device in the above-named case. It is too bad the Bruce Roberts Co. succumbed to the sex angle of advertising which seems to be so commonly used in sales procedures of today.

The Judicial Officer sustains the Hearing Examiner's Initial Decision except in the representations in the advertisements on "S-X Exercises." A fraud order is hereby issued against the Bruce Roberts Co. at Jersey City, New Jersey.

10/15/65

Bosone, Reva Beck

1/ In pertinent part Sec. 4005 reads:

§ 4005. Fraudulent *** matter

(a) Upon evidence satisfactory to the Postmaster General that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false or fraudulent pretenses, representations or promises; *** the Postmaster General may--

(1) direct postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representative, to return the registered letters or other letters or mail to the sender marked "fraudulent" ***; and

(2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes.

* * * * * *

2/ Reilly v. Pinkus, 338 U.S. 269

Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 461

U.S. v. Wunderlich, 342 U.S. 98

3/ Darnell v. Darnell, 200 F. 2d 747