In the Matter of the Complaint Against ANAPAX PRODUCTS, INC.c, P.O. Box 194, Ryder Station at Brooklyn, New York 11234 P.O.D. Docket No. 3/53 February 22, 1971 H. Richard Hefner and Thomas A. Ziebarth, Esqs., Office of the General Counsel, Post Office Department, for the complainant. Kenneth P. Keller, Esq., Krieger, Chodash & Politan, Jersey City, New Jersey, for respondent. Before: John Lewis, Hearing Examiner.
This proceeding was initiated by the filing of a complaint by the General Counsel of the Post Office, on September 25, 1970, 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 4005. In essence, said complaint charges respondent with having made false representations in advertising matter concerning the effectiveness, permanency, ease, safety, scientific soundness and medical acceptability of respondent's weight-reduction method known as "The Anapax Method." Respondent appeared by counsel and filed answer, in which it admitted the use of the advertising matter alleged in the complaint, but denied the making of the representations alleged, or the falsity thereof. A motion by respondent for a change in the place of hearing was denied by the Hearing Examiner initially assigned as Presiding Officer in this proceeding, by order filed October 16, 1970, without prejudice to the renewal of such motion upon completion of complainant's case-in-chief. Upon the death of the original Hearing Examiner, this proceeding was reassigned to the undersigned Hearing Examiner on November 24, 1970.
Hearings for the reception of evidence in support of, and in opposition to, the complaint were convened on December 16, 1970, in Washington, D.C. Both sides were represented by counsel and were afforded full opportunity to be heard, and to examine and cross- examine witnesses. Counsel for complainant called two witnesses, (1) a postal inspector, through whom they sought to establish that respondent's method of operation involved the obtaining of money through the mail by means of statements made in advertising, and (2) a physician, through whom they sought to establish the falsity of the representations made in respondent's advertising matter. Counsel for respondent elected not to offer any witnesses, relying entirely on the cross-examination of the Government's witnesses and the purported insufficiency of their testimony.
At the close of all the evidence the parties were granted until January 18, 1971, to file proposed findings of fact and conclusions of law. On motion of counsel for respondent, the time for filing thereof was extended until February 3, 1971. Proposed findings of fact and conclusions of law were filed by counsel for complainant on February 3, 1971. A memorandum on behalf of respondent, containing proposed findings and conclusions, was received and docketed on February 4, 1971, but said memorandum has been treated by the under- signed as if it had been timely filed.
After having carefully reviewed the evidence in this proceeding and the proposed findings and conclusions,1/ and based on the entire record, including his observation of the witnesses, the undersigned makes the following:
FINDINGS OF FACT
A. Solicitation of Money Through the Mail
1. Respondent is engaged in the business of selling a weight- reduction product and program to the general public known as "The Anapax Method." Such method involves the use of certain tablets known as the "Anapax Diet Plan Tablets" and a printed leaflet designated as the "Anapax Weight Control Plan" (Compl. Ex. 4-5). Together, they are designated as the "Anapax Weight Control Method."
2. Public attention is attracted to respondent's weight control method through advertisement placed in magazines and other publications or general circulation. As part of its advertisements, respondent includes an order form to be used by prospective customers for ordering respondent's product and program through the mail. Such form requires the sending of money in payment of the order since, as respondent states therein: "We do not ship C.O.D. orders." The record establishes that respondent does, in fact, obtain money through the mail from customers who have detached and mailed the order form, in payment of respondent's product and program (Compl. Ex. 1-3; Tr. 12, 16-24, 40-42).
B. The Representations
3. Respondent's advertising matter contains various statements concerning the efficacy of its weight-reduction product and method. A copy of respondent's advertising matter, by which it solicits money through the mail, is attached hereto as Appendix "A."
4. The complaint charges that respondent has made various representations to the public concerning its product and method, by means of the statements made in its advertising matter. Although no user or consumer witnesses were offered to establish how the general public would interpret respondent's advertisements, the meaning thereof is so plain and unambiguous that appropriate findings may be made as to the impression such advertisements would make on the ordinary reader, without the necessity for introducing testimony as to the meaning thereof. 2/ It is accordingly found that, based on the portions of the advertisements quoted in the complaint (hereinafter set forth in parenthesis), as well as other statements in its advertisements, respondent has made the following representations to the public in its advertising material:
a. That "The Anapax Method", advertised in Exhibit "A" attached hereto, is a scientifically sound and effective means of overcoming, treating and/or curing obesity, (e.g., "NEW YORK DOCTOR DISCOVERS A DRAMATIC NEW BREAKTHROUGH TO CURE OVERWEIGHT. 10,000 PATIENTS LOSE POUNDS AND INCHES QUICKLY AND SAFELY WITH NEVER BEING HUNGRY.", "'I lost 85 lbs. of ugly fat in only 2 short months]'", "Yes, This is My Astounding Story of How I lost 85 Pounds of Extra Weight in only 60 Days", "The pounds actually melt away before your eyes with dramatic weight loss in only 3 days.", "Trim down quickly and safely as I did to almost half the size I was.", "Dramatic Weight Loss of 25-60-90 Pounds or More Can Now Be Accomplished in Just 60 days or Less", "...The best weight reduction Method available to the public today ...", "... losing all the weight you desire can be a simple, fast and safe experience for you by just following the ANAPAX METHOD." etc.);
b. That "The Anapax Method", is a certain means of overcoming, treating and or curing obesity, (e.g., "I can't tell you what a blessing this method was to me and what this same method I used can do for you.", "THIS AMAZING METHOD HAS NOW BEEN USED BY THOUSANDS OF PEOPLE LIKE YOURSELF ALL OVER THE UNITED STATES WITH 100% SUCCESS, SATISFACTION, AND WITH COMPLETE SAFETY", "Results guaranteed in only 3 days believe it or not." "... I say the Anapax Method will work for you...", "... for me and hundreds of thousands of other men and women like myself..." etc.);
c. That "The Anapax Method" will permanently, overcome treat and or cure obesity, (e.g., "Now even though I love to eat I have no problem to keep my weight down to what it should be.", "Yes, The ANAPAX Method was the end of my overweight problem and the answer to Hundreds of Thousands of other people, male and female alike...", "THE BENEFIT OF LOSING WEIGHT AND KEEPING IT OFF PERMANENTLY WITHOUT REALLY TRYING CAN NOW BE YOURS.", "Yes to END THAT FAT PROBLEM FOREVER]]" etc.);
d. That "The Anapax Method" may be safely employed by all obese persons, (e.g., "COMPLETELY SAFE", "Never once did I suffer any ill effects from this quick and Dramatic weight loss.", "I urge every overweight man or woman to start my method immediately...", etc.);
e. That adherence to "The Anapax Method" will not require the obese person to restrict his caloric intake or significantly alter his eating habits, (e.g., "No Diets...No Calorie Counting...Never Hungry", "Yes, these people were permitted as many meals as they wanted. They ate as much or more than ever...Were never Hungry...", "NEVER HUNGRY EVEN ONCE", "NOW] EAT UNTIL YOU ARE FULL AND LOSE POUND AFTER POUND]", "Now with this New Method it is possible for you to maintain your proper weight without depriving yourself of good healthful filling meals, AND BEST OF ALL DON'T COUNT CALORIES]", "...losing pounds and inches with no effort at all..."etc.);
f. That through adherence to "The Anapax Method" an obese person may increase the amount and rate of body weight and size reduction through an increased consumption of food, (e.g., "Yes] The more I ate to satisfy my body the more weight I would lose", "I ate and ate those extra pounds away and the more food I felt I needed to satisfy me, the more weight I would Lose]" etc.);
g. That through adherence to "The Anapax Method" an obese person may reduce his body weight and size at any desired rate of speed, (e.g., "Now I can Lose Weight as quickly as I desire and so can you.", "Please Fill in Enclosed Information Blank As to How Quickly You Desire to Lose Weight." etc.);
h. That the "The Anapax Method" has been proven and generally accepted by the medical profession as a scientifically sound and effective means of overcoming, treating and/or curing obesity, (e.g., "10,000 PATIENTS LOSE POUNDS AND INCHES QUICKLY AND SAFELY", "...a report written by a New York Doctor who was specializing in internal Medicine. The doctor wrote that he had helped 10,000 overweight men and women to lose all the weight they desired.", "Thanks To This Famous Doctor's Discovery" etc.).
C. The Alleged Falsity of the Representations
5. The representations made by respondent with respect to its product and program (as to which the complaint contains some overlap and duplication) may be condensed for purposes of determining the truth or falsity thereof into the following categories: (a) That respondent's product and method are effective, i.e., that they will result in certain and permanent weight reduction, (b) that the weight loss may be achieved at a desired rate, (c) that the weight loss may be achieved without a change in eating habits, (d) that respondent's method is safe and (e) that it is accepted by the medical profession as scientifically sound. The evidence offered in support of the complaint, through the credible testimony of Dr. Lawrence E. Putnam, clearly establishes, and it is so found, that the representations made by respondent in its advertising, as above set forth, are false in all material respects.
6. According to the uncontradicted and credited testimony of Dr. Putnam, a specialist in internal medicine with a practice consisting of many patients suffering from overweight, neither the Anapax Tablets nor the Anapax program of weight control will enable overweight persons to achieve the results which respondent represents, in its advertising matter, are achievable. The tablets themselves have no value whatsoever in a weight-reduction program since none of the ingredients thereof is an appetite depressant nor is calculated in any way to cause an appreciable loss of weight (Tr. 62, 67, 73, 114). The ingredient benzocaine is a local anesthetic, which is principally used on mucuous membranes such as the mouth. If placed on the tongue in quantities far greater than the 7.5 mg. contained in respondent's recommended daily dosage of three tablets, it could conceivably anesthetize the tongue and thus have a secondary effect on food ingestion by affecting the sense of taste. However, in quantity contained in respondent's recommended dosage, and following the directions on the bottle that the tablets be swallowed, it will have no effect on the tongue and will produce no appetite depressant effect on the stomach (Tr. 57, 83). Two other ingredients in the tablets, i.e., sodium carboxy and methyl cellulose in combination, and methyl cellulose separately, are used in bulk-forming laxatives. In the quantities contained in respondent's recommended dosage (7.5 gr. and 3 gr., respectively), they will not act as a bulk laxative and, moreover, even if they did, such laxatives are of no significant value in an effective program of weight reduction (Tr. 58-59, 84-90). The remaining ingredients in respondent's tablets consist of various vitamins and minerals which act as diet supplements, but have no value in achieving weight reduction (Tr. 59-61).
7. The one-page leaflet enclosed with respondent's tablets, which is referred to as the "Anapax Weight Control Plan," will not achieve the results promised to readers in respondent's advertising. Essentially, the plan recommends the use of a high protein-low fat and carbohydrate diet. While a given quantity of proteins contains less than one-half the calories than the same quantity of fats, and some loss of weight might be achieved thereby, respondent represents in its advertising that weight loss may be achieved thereby, respondent represents in its advertising that weight loss may be achieved without regard to the quantity or kind of food eaten (e.g., "No Diets...No Calorie Counting". "People were permitted as many meals as they wanted. They ate as much or more than ever"). Moreover, as Dr. Putnam's testimony makes clear, a sound program of weight reduction is based on a balanced diet, rather than one concentrating on proteins, and is dependent in large measure on psychological support as well as on physical factors (Tr. 65-76). The indiscriminate use of a weight-reduction program such as that described in respondent's plan may be harmful to some people, since the diet should be tailored to the individual's medical condition. Thus, persons with diabetes have to control the amount of proteins, fats and carbohydrates ingested, and persons with kidney disease should not be on a high protein diet since it tends to overwork their kidneys (Tr. 70). Respondent's diet method and program is not scientifically sound and is not one that is generally accepted in the medical profession. It will not effectively and permanently achieve weight reduction, to say nothing of being unable to help the user achieve such reduction in desired amounts and at desired rates of speed (Tr. 65, 69, 72-74, 97, 110).
8. Although it introduced no affirmative evidence to establish the efficacy of its weight-reduction product or method, respondent seeks support for its position from certain supposed admissions made by Dr. Putnam in the course of his testimony. Thus, respondent cites Dr. Putnam's testimony that the tablets might have some value as a placebo, by lending psychological support to persons finding it difficult to adhere to a weight-reduction program. Respondent refers, further, to Dr. Putnam's testimony that (a) a high-protein diet was recommended by some doctors (although he himself and the profession generally did not consider it effective), (b) that respondent's method might cause some people to lose weight, to the extent they adhered to a high-protein diet, and (c) that there is no method of weight reduction which is 100% certain of success. Respondent also calls attention to the fact that if readers are dissatisfied with its product they may receive a refund, since its product is sold with a money-back guarantee.
9. In the opinion of the Examiner respondent misconceives the import of the supposed admissions contained in Dr. Putnam's testimony. The issue here is not whether there is any certain method of weight reduction, or whether some persons could conceivably receive some benefit from respondent's method of weight control. Respondent is charged here with having made certain specific and affirmative representations as to what benefits readers may expect to receive from its product and method of weight reduction. Either they will normally achieve these results, in the manner and under the conditions represented, or they will not. The testimony of Dr. Putnam clearly establishes that they will not. The fact that some individuals using respondent's method may, conceivably, achieve some incidental loss of weight is immaterial. It is clear from Dr. Putnam's testimony as a whole that any such loss will not be permanent or safe. The fact the tablets could act as a placebo for some individuals is likewise immaterial, since they are represented and sold to the public not as a placebo, but as having positive value in achieving a reduction of weight. Furthermore, the fact that there are some weight-reduction methods on the market containing similar ingredients, or that there is no certain method of weight reduction, is immaterial. The issue here is whether respondent's method works as respondent has represented it will, not whether it is as good as other methods or whether there is any perfect method of weight reduction. Finally, the fact that users may apply for a refund is immaterial. A false representation is not dissipated by the fact that dissatisfied customers may obtain a refund.3/ It is accordingly found that the representations made by respondent, as above found, are materially false as a matter of fact.
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 4005, as amended. It is accordingly recommended that an order in the form attached, as provided in 39 U.S. Code 4005, should be issued.
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1/ Proposed findings not herein adopted, either in the form proposed or in substance, are rejected as not supported by the evidence or as involving immaterial matters.