In the Matter of the Complaint Against WILSON PRODUCTS, INC. at Jersey City, New Jersey 07306 P.S. Docket No. 1/7 October 15, 1971 William A. Duvall Director, Office of Hearing Examiners APPEARANCES: H. Richard Hefner, Esq. James J. Robertson, Esq. Consumer Protection Office Law Department United States Postal Service Washington, D. C. 20260 for the Complainant Sidney Schreiberg, Esq. 233 Broadway New York, New York 10007 for the Respondent
1/ This proceeding was initiated by the filing on August 16, 1971, of a complaint by the Senior Assistant Postmaster General and the
General Counsel for the United States Postal Service alleging in substance that the Respondent, Wilson Products, Incorporated at Jersey City, New Jersey, is engaged in a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of Section 3005 of Title 39 of the United States Code. The complaint is attached to this decision as Appendix A hereto.
The Respondent's answer was filed on September 7, 1971. The Respondent denies each and every allegation set forth in the complaint.
The enterprise in which the Respondent is engaged is the sale through the mails of a so-called SLIM-AWAY PLAN, which is a plan to assist persons in the loss of weight. There were received into evidence in this proceeding exhibits which establish that, based on the receipt of an unsolicited circular, the Postal Inspector ordered the product from the Respondent, remitted the required amount of money and, in return, received the SLIM-AWAY PLAN which consists of certain pills or tablets, together with instructions for a diet.
The circular which precipitated the order for the product is Exhibit A to the complaint which is attached to this decision. The pills were delivered in a plastic container and the label indicates that there are ninety tablets in this particular container and that the ingredients of each tablet are as follows: Benzocaine, 10 mgs.; Sodium C.M.C., which the medical witness translated to sodium carboxymethylcellulose, 163 mgs.; Methocel, which is another form of cellulose according to the medical doctor, 65 mgs.; Caffeine Anhydrous, 15 mgs.; and Uva Ursi, in powdered form, in the amount of 50 mgs.
Appearing as an expert witness on behalf of the Complainant was Vincent F. Cordaro, a medical doctor who has been in private practice -- at one time he was a medical officer in the United States Air Force, and, for a period of time, has been a medical officer with the Food and Drug Administration in Washington, D. C.
The statement of Dr. Cordaro's education, training and experience, indicates that he is well qualified to testify in regard to the subject matter involved in this proceeding. Dr. Cordaro testified that the Benzocaine contained in Respondent's product is in insufficient amount to be of any significant anesthetic effect. Dr. Cordaro also testified that the cellulose products contained in the SLIM-AWAY PLAN pills will form only a small globus in the stomach, and the testimony in this case is that there is nothing in this product considered singly or in conjunction with the other products which will have the effect of depressing the appetite or decreasing the desire for food by any individual.
The foregoing statement represents the consensus of informed medical opinion on this subject.
In regard to the diet sold by the Respondent, Dr. Cordaro testified that, ideally, in prescribing a diet for a patient, it is better for the doctor to interview the patient, obtain a medical history and perform such tests as may be considered necessary or desirable. On the other hand, Dr. Cordaro did state that, generally speaking, a person who followed this diet would probably lose some weight, although he was positive in his testimony that the weight losses claimed in the advertising literature used by the Respondent could not result. These weight losses, in order to be specific, are represented in the advertising literature as being eight pounds in two days, fifteen pounds in six days, thirty-one pounds in one month or ninety pounds within three months.
The foregoing statements express the substance of the testimony that was given in this proceeding on behalf of the Complainant, and no testimony of any kind, either of expert or lay witnesses, was offered by the Respondent.
While the advertising literature does make the foregoing statements about weight losses that users of the product can expect in certain periods of time, the greatest misrepresentation lies in the fact that the prospective purchaser is not at any time prior to the receipt of the product made aware of the fact that he is going to have to go on a diet. The advertising literature contains suggestions directly to the contrary.
For example, in the block on the first column in the upper left-hand portion of the circular, which was Exhibit 3, are these words: "NO CALORIE COUNTING." At another place the circular uses these words: "No specialized diets," and "no starve yourself thin punishments."
So, all of these statements -- and these do not purport to be all that appear in the Respondent's advertising circular -- suggest to the prospective purchaser that he will be permitted to maintain his normal eating habits but that he will be permitted and enabled to lose weight by reason of this discovery, which is so miraculous.
Upon the basis of the testimony of record in this proceeding, I make the following findings of fact:
1. The Respondent is obtaining and attempting to obtain remittances of money through the mail.
2. The Respondent does make the representations set forth in Paragraph 3 of Appendix A to this decision.
3. The representations found to have been made by the Respondent are materially false and misleading.
The conclusions of law are as follows:
1. The Complainant has sustained the required burden of proof in this proceeding.
2. The effects of false representations persist, even though the seller promises to refund the purchase price should the articles sold prove to be unsatisfactory. Borg-Johnson Electronics v. Christenberry , 169 Fed. Supp. 746 at 751.
3. The Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations as proscribed by the provisions of Section 3005 of Title 39, U. S. Code.
I have considered the 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 either contrary to the evidence or they are immaterial.
Upon the basis of all of the foregoing considerations, I conclude that a remedial order as provided in Section 3005 of Title 39, U. S. Code should be issued against this Respondent.
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