In the Matter of the Complaint Against WONDER BELT at Roslyn, New York 11576 P.S. Docket No.1/25November 5, 1971
William A. Duvall Director, Office of Hearing Examiners
APPEARANCES: H. Richard Hefner, Esq. Consumer Protection Office Law Department United States Postal Service Washington, D.C. 20260 for the Complainant Charles B. Chernofsky, Esq. 73 Ketewemoke Drive Halesite, New York 11743 for the Respondent
This proceeding was initiated by the filing of a complaint by the General Counsel of the United States Postal Service on September 13, 1971, charging Wonder Belt, at Roslyn, New York, with conducting a scheme or device for obtaining money or property through the mails by means of false representations, contrary to the provisions of 39 U. S. Code 3005. The substance of the complaint against the Respondent is that the Respondent has been and is making false representations concerning the efficacy of a so-called "Wonder Belt" as a means by which obese persons may lose weight.
An appearance on behalf of Respondent was entered by Counsel who filed an answer to the complaint in which Respondent admitted publication of the advertising matter attached to the complaint, but denied the making of the representations specifically charged by the Complainant. In addition, Respondent, in its answer alleged that the statute under which this proceeding was brought is unconstitutional in that it violates the First Amendment of the Constitution because of a lack of procedural safeguards. Finally, Respondent alleged that the Office of Hearing Examiners has issued a decision on a similar product (Sauna Belt) which makes equal claims and that decision is favorable to Respondent.
On November 1, 1971, Respondent filed an amended answer in which it pleaded "NOLO CONTENDER" to paragraphs 3 and 4 of the complaint, in which paragraphs are set forth the representations allegedly made by Respondent in its advertising matter and the allegation of the material falsity of such representations.
Pursuant to notice, a hearing was convened on November 2, 1971, in Washington, D. C., said hearing having previously been postponed from October 13, 1971, on motion of Counsel for the Respondent. At the hearing there was no appearance on behalf of Respondent.
Section 952.10 of the Rules of Practice applicable to this proceeding (39 CRF 952.10) contains as subsection (b) the following provision:
"Any facts alleged in the complaint which are not
denied or are expressly admitted in the answer may be
considered as proved, and no further evidence regard-
ing these facts need be adduced at the hearing."
In view of the foregoing provision, Counsel moved that the hear- ing be closed and that an initial decision be issued in accordance with the allegations of the complaint on the grounds that Respond- ent's original answer admitted publication of an advertisement involving the solicitation of money through the mail, and that its amended answer admitted the making of the representations alleged in the complaint and the material falsity thereof.
The motion of Counsel was granted, but it is deemed necessary to comment in regard to the affirmative allegations of Respondent's answer. First, it is not within the province of hearing examiners to rule on the constitutionality of statutes. ( Engineers Public Service Co. v. S.E.C. , 138 F.2d 936 at pp. 952-3; see, also, 39 C.F.R. 821.3(c)(ii)) It might be well at this juncture, however, to point out that the present statute and its predecessors have been held by the courts for many years to be constitutional. Secondly, it is not enough for the Respondent to make the bald allegation that a prior decision has been made with respect to a similar product concerning which equal claims were made. Unsupported allegations in a pleading do not constitute competent, creditable evidence.
In accordance with the allegations of the complaint and based on consideration of the advertising material attached to the complaint, a copy of which is attached hereto as Appendix A, the Hearing Examiner makes the following:
FINDINGS OF FACT
1. Respondent is engaged in selling a product known as "Wonder Belt" as a device by means of which obese persons may lose weight.
2. Public attention is attracted to Respondent's product by means of advertising matter distributed to the public.
3. The advertising matter used by the Respondent solicits remittances of money through the mails for the product known as "Wonder Belt."
4. Respondent's advertising matter contains various statements concerning its weight reduction product, as evidenced by Appendix A to this decision.
5. Reasonably construed in the light of the effect Respondent's advertising material would most probably product on ordinary minds ( Donaldson v. Read Magazine, Inc. , 333 U.S. 178), Respondent makes the following representations in substance and effect:
a. "Wonder Belt" will reduce the amount of fat deposited around the users' mid-section.
b. Wearing the "Wonder Belt" will accomplish the results promised in Respondent's advertisement without requiring the user to change his daily routine or to reduce his caloric intake.
c. Wearing the "Wonder Belt" will reshape and slenderize the figure of the user.
d. Wearing the "Wonder Belt" will remove fat from any particular part of the user's anatomy.
6. The foregoing representations found to have been made by Respondent are materially false as a matter of fact.
CONCLUSION OF LAW
Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, an activity which is proscribed by Section 3005 of Title 39, U. S. Code.
In view of the foregoing findings of fact and conclusion of law, it is recommended that an order in the form attached, as provided in 39 U.S. Code 3005 be issued against Respondent.