In the Matter of the Complaint Against THORNWOOD LABORATORIES, 10 Burnside Avenue at Congers, New York 10920 P.O.D. Docket No. 3/88August 11, 1971
Thomas A. Ziebarth, Esq., Office of the General Counsel, U.S. Postal Service, for the Complainant. Respondent, no appearance. Before: John Lewis, Hearing Examiner.
STATEMENT OF PROCEEDINGS
This proceeding was initiated by the filing of a complaint by the General Counsel of the Post Office on May 24, 1971, charging the Respondent, Thornwood Laboratories, 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 4005 (now Section 3005). In essence, the complaint charges Respondent with having made false representations in advertising matter concerning the effectiveness, in weight and appetite control, of Respondent's product designated as "Slenro".
Respondent did not appear by counsel and did not file a formal answer. However, Respondent did submit a letter which bears the date June 7, 1971, in which it stated in substance that it was unaware it was in violation of 39 U. S. Code 4005 and expressed the hope that this would be considered a timely answer to the com- plaint. The letter contains the further assertion that Respondent had "informed advertising agency to cancel all advertising as it appears in the April 1971 issue of Mademoiselle magazine", and that within two weeks of the date of the letter it would supply the Post Office with new advertising matter which it was confident would comply with Postal Regulations.
The original hearing in this matter, which was scheduled for June 24, was cancelled on motion of counsel for Complainant for the reason that it appeared likely a satisfactory compromise disposition of the case would be made. However, no such disposition was accom- plished and a motion to reset the hearing and for an oral decision was filed by counsel for Complainant. Thereafter, the Hearing Examiner issued an order dated July 9, 1971, a copy of which was duly served upon Respondent, rescheduling the hearing for July 20, 1971, and reserving ruling on the request for an oral decision until the conclusion of the reception of evidence.
In accordance with the foregoing order, a hearing for the reception of evidence in support of, and in opposition to, the complaint was convened in this proceeding on July 20, 1971, in Washington, D. C. Complainant was represented by counsel, but Respondent failed to make any appearance at the hearing. Although the letter of June 7, 1971, which Respondent requested be considered an answer in this matter, was duly docketed herein, said letter does not comply with the requirements of Section 952.10 of the Rules of Practice in that it does not contain a concise statement admitting, denying, or explaining each of the allegations set forth in the complaint. That section provides that any facts not denied may be considered as proved, and would justify the making of findings of fact in accordance with the allegations of the complaint since such allegations have not been denied. At best, the letter sets forth an affirmative defense of discontinuance of the use of the challenged advertisement. However, since evidence has been offered in support of the complaint and said evidence stands unchallenged, appropriate findings may be made on the basis of such evidence, without relying on the technicality that the allegations of the complaint have not been specifically denied.
After having carefully listened to the testimony and examining the evidence in this proceeding, and having duly considered the proposed findings and conclusions proposed by counsel for Complain- ant, and based on the entire record, including my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. Respondent is engaged in the solicitation of money through the mail. It is engaged in the business of selling a weight reduction product to the general public, said product being designated as "Slenro". Although Respondent also is engaged in supplying a weight reduction plan with its product, such plan is not referred to in its advertising matter. Respondent's plan for weight reduction involves the use of certain tablets which are designated as "Slenro" tablets. Such tablets have been received in evidence as Complainant's Exhibit 5B.
2. Public attention is attracted to Respondent's weight control product through advertisements placed in magazines and other publications of general circulation. In such advertisements Respondent offers to send a bottle of "Slenro" capsules through the mail in return for payment therefore in amounts ranging from $3.00 to $9.00, depending on the number of capsules ordered. Respondent's advertisement contains the statement that it will pay postage but will not honor COD's. The record establishes that Respondent does, in fact, obtain money through the mail from customers who order such capsules through the mail and make payment therefore. Complainant's Exhibits 2, 3 and 4 are evidence of the ordering of, and payment for, such capsules and Complainant's 5 is evidence that such capsules are supplied pursuant to the order.
3. The next issue is as to what representations Respondent makes in its advertising matter, copies of which are in evidence as Complainant's Exhibits 1, 6 and 7. A copy of Respondent's adverti- sing matter, by which it solicits money through the mail, was attached to the complaint as Exhibit "A" and is identical with Complainant's Exhibit 6 in evidence. Said advertisement will be attached as part of this decision as Appendix "A".
4. The complaint charges that Respondent has made various representations to the public concerning its product by means of statements made in its advertising matter. From an examination of the advertisements which are in evidence, I find that Respondent did represent, directly or indirectly, in substance and effect, as follows:
(a) That Slenro capsules are an effective aid to appetite control. (This it does through statements in the advertisements that it can help readers lose weight, and specifically through the statement that its "special capsule" is "an aid to appetite control" and through other statements made in the advertisements);
(b) That sodiumcarboxy-methylcellulose contained in Slenro capsules will create a feeling of fullness in the user's stomach. (It does this through the statement that each capsule contains this ingredient, which "makes your stomach feel full");
(c) That the Benzocaines contained in Slenro capsules will help dull the user's appetite. (It does this through the specific statement that the capsules contain Benzocaine "to help dull your appetite"); and
(d) That Slenro capsules will make a substantial and material contribution to a weight loss of at least ten pounds in a month without the necessity of adhering to a dietary regimen. (It does this through the statement in the advertisement that users will lose at least ten pounds within thirty days and, although no specific statement is made with respect to the necessity of adhering to a dietary regimen, the advertisement as a whole would indicate to the ordinary reader that the weight loss will result from the use of the tablets alone without the necessity of adhering to any dietary regimen).
5. Respondent has not challenged the use of these representa- tions in its advertising matter, but has asserted in its answer merely that such advertisements are being cancelled. However, the evidence of record establishes that the July 1971 issue of Glamour magazine contains an identical advertisement to the April 1971 advertisement which Respondent stated it intended to cancel.
6. The next issue is that with respect to whether the representations made in Respondent's advertising matter are materially false as a matter of fact, as alleged in paragraph 4 of the complaint. In essense, Respondent has represented through its advertisements that is Slenro capsules are an effective aid to appetite control and will make a substantial and material contribu- tion to a weight loss of at least ten pounds a month, without the necessity of adhering to a dietary regimen, through the action principally of two of its ingredients, namely: sodiumcarboxy- methylcellulose will create a feeling of fullness in the user's stomach and that the Benzocaine will help dull the user's appetite. The evidence offered in support of complaint through the credible and uncontradicted testimony of Dr. Vincent F. Cordaro, a licensed and qualified physician, clearly established and it is so found, that the representations made by Respondent in its advertising, as above set forth, are false in all material respects.
7. According to the uncontradicted and credited testimony of Dr. Cordaro, sodiumcarboxy-methylcellulose in the quantity contained in Respondent's capsules will not produce a feeling of fullness in the stomach and has no value as part of a program for weight control. While the use of sodiumcarboxy-methylcellulose in substantially larger quantities than that contained in Respondent's capsules has been used as a bulk laxative and may result in a feeling of fullness in the stomach and have some impact on weight control, it is clear that in the quantity here involved there will not be enough water absorption by reason of the sodiumcarboxy- methylcellulose to create distention of the stomach and reaction as a bulk laxative. With respect to the ingredient Benzocaine, in the quantity here involved, namely, five milligrams, the tablets will not result in any dulling of the appetite. Were such ingredient used in much larger quantities, it may produce an anaesthetizing effect on the mucus membranes, but in the quantities here involved it will not result in any appreciable dulling of the appetite. The only other ingredients contained in the capsules are certain vitamins which, while they are valuable as part of a program of weight control in restoring necessary vitamins and minerals to the diet, will not in themselves create any feeling of fullness or dulling of the appetite or otherwise result in any loss of weight. The record establishes that there is no other substance in the capsules which will have any materials effect in an program of weight control.
8. The product supplied by Respondent through the mail also includes a leaflet designated as a "Diet Plan". Said leaflet is not referred to in Respondent's advertising matter and is not specifically referred to in the label included with the tablets which have been received in evidence as Complainant's Exhibit 5B. Such diet plan does contain valuable information which may be of help to individuals in planning a program of weight control, to the extent that the leaflet contains three different diets which, if followed by the reader, may result in a loss of weight. However, the "Slenro" tablets which are advertised and sold through the mail have no impact whatsoever and make no contribution toward such program of weight control. It is clear from Respondent's advertise- ments that it is appealing to readers on the basis of the "Slenro" capsules and on the basis of the ingredients therein and not on the basis of any program for weight control which will involve an actual limitation on the ingestion of food. On the contrary, the impression created by the advertising is that a loss of weight will result without regard to adhering to dietary regimen. It is accordingly found that the representations made by Respondent, as above found, 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 in violation of 39 U. S. Code 3005, formerly 39 U. S. Code 4005. It is accordingly recommended that an order in the form regularly used in such cases, as provided in 39 U. S. Code 3005, should be issued.
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