In the Matter of the Complaint Against EASY SLIM, 5140 White Oak Avenue and Post Office Box 742 at Encino, California 91316 P.S. Docket No. 1/15December 22, 1971
William A. Duvall Director, Office of Hearing Examiners
APPEARANCES: Thomas A. Ziebarth, Esq. Law Department United States Postal Service Washington, D.C. 20260 for the Complainant David Bloomgarden, Esq. Burick and Bloomgarden 9300 Wilshire Boulevard Beverly Hills, California 90212 for the Respondent
1/ This proceeding was initiated by the filing on August 27, 1971, of a complaint by the General Counsel for the United States Postal
Service, alleging, in substance, that the Respondent, Easy Slim, with an address at 5140 White Oak Avenue and another address at Post Office Box 742, at Encino, California, referred to collectively as the Respondent, is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, contrary to the provisions of Section 3005 of Title 39 of the United States Code.
The pertinent part of this statutory provision reads as follows:
"(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 representations, *** the Postmaster General may issue an order which--
(1) directs any postmaster at an office at which registered or certified letters or other letters or mail arrive, addressed to such a person or to his representative, to return such letters or mail to the sender appropriately marked as in violation of this section, if such person, or his representative, is first notified and given reasonable opportunity to be present at the receiving post office to survey such letters or mail before the postmaster returns such letters or mail to the sender; and
(2) forbids 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 sum named in the money order or postal note."
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Specifically, the Complainant has charged the Respondent with making the following representations which are alleged to be materially false:
The first one is that grapefruit is an integral and essential part of the diet regimen which the Respondent is selling through the mails, and that grapefruit contributes materially to a rapid and substantial weight loss on the part of the dieter by acting as a catalyst to help burn excess fat and body fluids from the body.
Second, that an obese person can, under this diet, eat almost as much as he wants of various fatty foods normally forbidden on a weight-loss regimen and still experience a loss of ten pounds in ten days, and, thereafter, lose a pound and a half every two days until he reaches his proper weight.
Third, and last, the diet constitutes a safe and effective regimen which will enable an obese person to lose excess fat and body fluid.
An Answer was filed on September 15, 1971, in which the Respondent denied all of the allegations of the complaint.
There was a series of motions and supplements to motions later filed, in which the Respondent asked that this hearing be transferred to Los Angeles.
The last supplement to the formal motion stated that one of the reasons for asking that this case be transferred to Los Angeles was that a review of the case law suggests that the Complainant would probably introduce the testimony of an expert in the field of medicine, biochemistry, chemistry or nutrition. In the event this occurred, Respondent would seek to offer evidence in one of the aforementioned fields. Respondent advised that it was in the process of engaging an expert who would testify that Respondent's diet plan results in weight loss.
Counsel for Respondent stated at the hearing that he contacted more than one expert, namely, a medical doctor, and a biochemist, in an effort to get them to testify in this proceeding. Respondent's Counsel also said at the hearing that the Respondent had contacted several medical experts in an effort to get them to appear and testify on behalf of the Respondent in this proceeding, but neither Respondent nor Respondent's Counsel was successful in these efforts.
The first question to be dealt with is whether the Respondent, in its advertising matter, in fact makes the representations ascribed to it in the complaint.
Referring back to the first charge in paragraph 3(a) of the complaint, which is to the effect that grapefruit is an essential part of this diet plan, it seems to me that any fair reading of either on of these advertisement -- Exhibit A-1 or A-2 -- creates the impression in the mind of the average reader that there is something special, something really esoteric, about the presence of grapefruit in connection with this diet plan.
It is not only the impression that would be created in the mind of a reader, but this language which I am about to read is a statement that could only be construed as a statement of medical fact:
"The use of grapefruit juice as prescribed by the diet plan, will, through natural chemical action, act as a catalyst to help your body burn excess fat and body fluids, allowing you to keep your weight down and figure in firm control."
There is no "puffing" there. This is the statement of what purports to be the medical fact.
I find that this representation is made as alleged.
The second representation is that, while on this diet, the dieter can partake of almost as much as he wants of foods that would normally be forbidden to a person on a diet, and that he would still lose ten pounds in ten days, and thereafter lose a pound and a half every two days until he reaches his proper weight. There, again, this language is certainly not taken out of context. It is not given any subtle meaning that is not stated boldly by the Respondent in the second half of the advertisement. There is no question but that the average reader who picks up this advertisement and reads it receives the distinct impression -- and therefore proceeds on the belief -- that if he purchases and follows this plan, he will achieve the results of the loss of ten pounds in ten days and that, thereafter, he will lose one pound and a half until he reaches his proper weight. If one understands the English language, one can reach no other conclusion on the basis of the language in the advertisement.
In regard to the allegation that the Respondent represents his plan as a safe and effective regimen which will enable an obese person to lose excess fat and body fluid, I think it is fair to conclude that such an inference is to be reasonably drawn from the entirety of this advertising material. Certainly, people would not expect sellers to offer for sale a remedy that was unsafe and ineffective for the purposes for which it is designed to be used.
We have now arrived at the question of the truth or falsity of these representations. Testifying on this subject as a medical expert was Dr. Shelton Margen, a medical doctor who is at the University of California in Berkeley in the capacity of Professor of Human Nutrition and Chairman of the Department of Nutritional Science. Dr. Margen is Board-certified in internal medicine and he is certified by the American Board of Nutrition and Clinical Nutrition. Dr. Margen is extremely well qualified to testify in the field which is the subject matter of this hearing.
Dr. Margen stated without equivocation that the effect of following the directions in this pamphlet -- and I want to limit that statement to mean the following the daily caloric ingestion as prescribed by the formula on page 7 of the pamphlet which is sold by the Respondent and which has been admitted into evidence as Exhibit B-2 -- would be the same with the ingestion of the grapefruit that is recommended as it would be by omitting from the diet the grapefruit that is recommended.
Dr. Margen testified that he has not made a test of the dietary regimen recommended in this exhibit, B2. There is no known instance in which such a test has been performed, and the reason why no such test has been performed is that from a medical standpoint there is no reasonable basis for the conducting of such a test. The basis for this conclusion is that the chemical components of the grapefruit are well known to the medical profession, and those components have been utilized in various other tests, and the only reasonable conclusion that flows from these tests is that the employment of grapefruit in the manner in which it is represented by this Respondent in the advertising material is worthless and meaningless, in connection with a reducing diet. Therefore, the representation which is set forth in paragraph 3(a) of the complaint is false.
Now, representation 3(b), in regard to the dieter being permitted to partake of almost all of the various fatty foods as he likes and still experience a loss of ten pounds in ten days, is to my mind -- if the testimony of the medical expert is viewed fairly -- true. The evidence of record leads to the conclusion that a person would lose ten pounds of weight if he followed this caloric- reduction program for a period of ten days.
Therefore, that part of the representation is made and it is true.
The latter part of this representation, however -- that the person after the first ten days, if he should continue to follow this caloric reduction program, would lose a pound and a half every two days -- is false, based on the only competent evidence of record.
The last representation, which is that the diet plan constitutes a safe and effective regimen which will enable an obese person to lose excess fat and body fluids, is false. The basis for the finding of falsity in regard to this representation is the severity of certain deleterious effects which may be attendant upon the following of this caloric reduction that is recommended on page 7 of this regimen. For example, if the reduced caloric intake is followed for a sufficient period of time, there well may be an excess reduction in the amount of carbohydrates which the body takes in. If this reduction is continued for a sufficiently long period of time, it can have adverse effects such as the development of ketosis, which will precipitate an attack of gout. There are other situations in which the following of this program is contra- indicated because of the induced variance in the amounts of certain lipids in the blood of persons with certain conditions, such as coronary diseases and liver diseases. It could even result in the death of such individuals. Therefore, the representation that this plan is safe and effective for all users is false.
In making the determinations that have just been stated, I have kept in mind the admonition that advertisements are to be considered as a whole; in the light of the effect that such advertisements would most probably produce on ordinary minds. This admonition is found in the case of Donaldson v. Read Magazine , 333 U.S. 178.
The Complainant had the burden of establishing by persuasive evidence that the representations made by the Respondent are false. To the extent that I have previously indicated, the Complainant has either sustained or failed to sustain that burden or proof.
The effect of false representations persists even where there is a promise to refund the purchase price should the article sold prove to be unsatisfactory. A number of cases contain holdings to this effect. One such case is Borg-Johnson Electronics, Inc. v. Christenberry , 169 Fed. Supp. 746 at 751.
I conclude as a matter of law that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails as proscribed by the provisions of Section 3005 of Title 39, U. S. COde.
I have heard and I have considered proposed findings of fact and conclusions of law submitted by the parties. To the extent indicated herein, those proposed findings of fact and conclusions of law are adopted. Otherwise, such proposed findings and conclusions are rejected because they are contrary to the evidence, or because they are immaterial.
It should be pointed out again that there was expert medical evidence offered by only the Complainant in this proceeding. What the reason is for this fact is not certain, but it is a fact that the record as it is now constituted contains no medical evidence on behalf of the Respondent, and this proceeding was transferred to this locality in order that the Respondent might have the opportunity -- the full opportunity to present such medical evidence, if any, as he could find to support his position.
Since there is a record consisting of medical evidence supporting the complaint, this evidence amply supports the findings of fact and conclusions of law heretofore made. In support of this statement, there is the case of U. S. Health Club v. Major , 292 F.2d 665, decided by the Third Circuit Court in 1961.
Upon the basis of all the foregoing facts and considerations, a remedial order should be issued against this Respondent as provided by Section 3005 of Title 39 of the United States Code.
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