In the Matter of the Complaint Against MARVELEX COMPANY, 7471 Melrose Avenue at Los Angeles, California 90046 INITIAL DECISION OF HEARING EXAMINER P.S. Docket No. 1/5 October 6, 1971 Thomas A. Ziebarth, Esq., Office of the General Counsel, U. S. Postal Service, for Complainant. Charles B. Chernofsky, Esq., of New York, New York, for Respondent. Before: John Lewis, Hearing Examiner.
This proceeding was initiated by the filing of a complaint by the General Counsel of the United States Postal Service on July 22, 1971, charging the above-named Respondent with conducting a scheme or device for obtaining money or property through the mail by means of false representations in violation of 39 U. S. Code, Section 3005. In essence, said complaint charges Respondent with having made false representations concerning the nature of its product MARVELEX and its plan known as the MARVELEX PLAN, and their ability to cause obese persons to lose weight. Respondent appeared by counsel and initially filed answer in which it admitted publication of the advertising matter alleged in the complaint, but denied the remaining allegations thereof. However, Respondent thereafter filed an amended answer in which it pleaded "NOLO CONTENDERE" to paragraphs (3) and (4) of the complaint, which paragraphs set forth the representations allegedly made by Respondent in its advertising matter and the material falsity of such representations.
Pursuant to notice duly given, a hearing for the purpose of receiving such evidence as the parties cared to submit was convened on September 20, 1971, in Washington, D. C., said hearing having been twice postponed on motion of counsel for Respondent. No appearance was made at said hearing on behalf of Respondent. Thereupon counsel for Complainant moved to close said hearing for the reception of evidence and for the issuance of an initial decision in accordance with the allegations of the complaint, on the ground that Respondent'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 by reason of its failure to deny paragraphs (3) and (4) of the complaint, pursuant to Section 952.10 of the Rules of Practice which provides that any facts in the complaint not denied "may be considered as proved, and no further evidence regarding these facts need be adduced at the hearing." The motion of counsel for Complainant was granted and the hearing was thereupon closed for the reception of evidence. In accordance with the allegations of the complaint, as admitted in Respondent's answer as amended, the undersigned Hearing Examiner makes the following:
FINDINGS OF FACT
1. Respondent is engaged in selling a weight-reduction product and program to the general public known as the "MARVELEX PLAN." Such plan involves the use of certain tablets designated as "MARVELEX" tablets, and a set of dietary directions designated as the "MARVELEX PLAN."
2. Public attention is attracted to Respondent's weight-control product and plan through advertisements placed in magazines of general circulation. As part of its advertisements Respondent includes an order form to be used by prospective purchasers for ordering such product through the mail. Such form requires the sending of cash, check or money order through the mail in payment for Respondent's product and plan since, as stated in the form, C.O.D. orders are not honored.
3. Respondent's advertising matter contains various statements concerning its weight-reduction product and method. A copy of said advertising matter is attached hereto as Appendix "A." By and through the use of said advertising material, Respondent represents, directly or indirectly, in substance and effect:
a. That MARVELEX Tablets and the chemical ingredients contained therein are an integral and essential part of the MARVELEX PLAN and contribute materially to a rapid and substantial weight loss on the part of an obese user;
b. That the MARVELEX PLAN will succeed after all other known methods of attempting to control obesity have failed;
c. That MARVELEX PLAN is simple and easy and involves merely the taking of MARVELEX tablets before each meal and following "simple dietary directions";
d. That the MARVELEX PLAN involves no calorie counting, starvation diets, or discomfort on the part of the user and will, therefore, permit obese persons to achieve the specified reductions of body weight and size irrespective of calorie intake;
e. That the use of MARVELEX will help maintain the user's weight and figure permanently once the desired degree of weight loss is achieved;
f. That the MARVELEX PLAN constitutes a radical departure from or is different than "all the commonly known diets - such as calorie counting, starvation diets, dangerous pill diets, high protein diets, etc."; and
g. That adherence to the MARVELEX PLAN will result in the loss of "55 pounds of embarrassing, unsightly fat in only 8 weeks."
4. The aforesaid representations are materially false as a matter of fact.
CONCLUSION
Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U. S. Code 3005. It is accordingly recommended that an order in the form attached, as provided in 39 U. S. Code 3005, should be issued.