In the Matter of the Complaint Against STANFORD RESEARCH CORP., 19 North Harrison Street and P. O. Box 1013 at East Orange, New Jersey 07019 P.S. Docket No. 1/117November 16, 1972
William A. Duvall Chief Administrative Law Ludge
APPEARANCES: H. Richard Hefner, Esq. Consumer Protection Office Law Department United States Postal Service Washington, D.C. 20260 for the Complainant Robert Ullman, Esq. Bass & Ullman 342 Madison Avenue New York, New York 10017 for the Respondent
This proceeding was initiated by the filing on June 20, 1972, of a complaint by the General Counsel for the United States Postal Service alleging, in substance, that the Respondent, Stanford Research Corp. at East Orange, 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 3005 of Title 39 of the United States Cord.
The Respondent's answer was filed on July 10, 1972. The Respondent admits that in its business it uses the mails and the advertising material attached to the complaint, but Respondent denies each and every other allegation set forth in the complaint.
The enterprise in which the Respondent is engaged is the sale through the mails of so-called Slim-Tabs 33 which are tablets to be ingested to assist persons in the loss of weight. There were received into evidence in this proceeding exhibits which establish that, based on an advertising circular received through the mail from Respondent, the Postal Inspector who investigated this case ordered the product from the Respondent, remitted the required amount of money and, in return, received the Slim-Tabs 33 pills or tablets, together with instructions for a diet. The entire transaction was conducted by mail.
From what has been described thus far, there is ample proof of the use of the mails by the Respondent in the conduct of this business and in the effort to obtain money.
The Complainant alleges that, in the conduct of its business, the Respondent makes the following representations in regard to the product being sold:
(3) By means of the advertising matter referred to above, Respondent expressly and impliedly represents to the public in substance and effect:
a. "Slim-Tabs 33" are a scientifically sound and effective remedy for obesity.
b. Prior to the marketing of "Slim-Tabs 33," the ingredients were available only by prescription of a physician.
c. "Slim-Tabs 33" will effectively overcome, treat and cure obesity without requiring an obese person to diet.
d. The ingredients of "Slim-Tabs 33" are generally accepted and recognized by the medical profession as a remedy for obesity.
e. "Slim-Tabs 33" has (sic) been scientifically tested and proven to be an effective remedy for obesity.
f. "Slim-Tabs 33" are a permanent remedy for obesity.
g. "Slim-Tabs 33" will effectively overcome obesity without requiring conscious effort or willpower on the part of an obese person.
h. "Slim-Tabs 33" will stop compulsive eating.
i. "Slim-Tabs 33" are an effective appetite depressant.
j. "Slim-Tabs 33" will enable an obese person to control the amount and rate of speed at which he will reduce his body weight.
k. The ingredients of "Slim-Tabs 33" represent a significant scientific departure from all previous products intended for control of obesity.
Respondent's advertising circulars which were received from Respondent by the investigating Postal Inspector are attached hereto as Appendices A, B and C. A comparison of the charges in the complaint with Respondent's advertising material discloses that the charges are based on the language appearing in the advertising matter or that they state inferences which reasonably and logically flow therefrom.
Looking at this advertising material as a whole, and placing upon it a reasonable construction, considering it in the light of the effect that the advertising material would be most likely to produce on the average reader ( Donaldson v. Read Magazine , 333 U.S. 178), the conclusion is inevitable that such average reader would derive the impressions stated in the charges set forth in the complaint.
The label on the container of Slim-Tabs 33 sets forth the dosage as "one capsule 1/2 hour before meals with full glass of water, or as directed by physician." It is further stated on the label that each three capsules contain the following ingredients:
% MDR*
Vitamin A
(Acetate) 4000 USP Units 100
Vitamin D2 400 USP Units 100
Vitamin B1
(Thiamine HCL) 1 mg. 100
Vitamin B2
(Riboflavin) 1.2 mg. 100
Niacinamide 10 mg. 100
Ascorbic Acid 30 mg. 100
Pyridoxine HCL. 1 mg. **
Calcium Pantothenate 1 mg. **
Iron (as Ferrous
Fumarate) 13 mg. 130
Sodium Carboxymethyl-
cellulose
(Non-Nutritive) 500 mg.
Benzocaine
(Non-Nutritive) 12 mg.
*MDR%-Percent Minimum Daily Requirement.
**Minimum Daily Requirement has not been established.
As previously indicated, with the container of capsules the Respondent sends to the remitter a diet about which more will be said later and a copy of which is attached hereto as Appendices D-1 and D-2.
Respondent urged that the benzocaine in the product would, by its anesthetic effect, lessen the feeling of hunger, while the sodiumcarboxymethylcellulose, being hydrophilic in character, would expand and tend to create a feeling of fullness in the person who ingests it.
There were three medical doctors who were called to give testimony as expert witnesses in regard to, among other things, the efficacy of Slim-Tabs 33 in terms of their capacity to enable persons to lose weight if the Slim-Tabs are taken as directed. These doctors were Vincent F. Cordaro and Robert Marcus, called by Complainant, and Harold S. Feldman, called by Respondent. Each of these physicians is qualified to give testimony concerning matters in the area of medicine which is the subject of this proceeding. Each of these physicians testified unequivocally and emphatically that the ingestion as directed of Slim-Tabs 33, alone, would not enable a person to obtain the results which Respondent heretofore has been found to promise remitters. (See: Cordaro--Tr. 41-52; Marcus--Tr. 158 162; Feldman--Tr. 276-284)
That brings the inquiry to the subject of the diet sent with Slim-Tabs 33 to remitters by Respondent. This diet (Appendix D) is a severely restricted diet and consists of meals totaling approximately 1000 calories per day. Although the following of this diet would entail considerable risk on the part of some persons, there is no question but that if it is followed it will produce a loss of weight.
A discussion of this diet, however, is an academic exercise insofar as this case is concerned. The reason for this statement is that persons to whom Respondent's advertising material is sent are led to believe that the marvelous weight losses featured therein will result from the use, alone, of the Slim-Tabs 33 tablets. Nowhere in that literature is there any suggestion that the remitter will have to follow a diet of such drastically lowered caloric content. Therein lies one of the greatest misrepresentations in this case. The emphasis is on the wonderfully effective tablets and nothing so prosaic, but demanding, as the stringent diet is mentioned.
The evidence in this record is convincing that the representations made by Respondent in the sale of Slim-Tabs 33 are materially false as matters of fact.
All of the exhibits in this case, including the articles from various medical journals offered by Respondent, have been considered. Those articles offered by Respondent, when given the full weight to which they are entitled, are not persuasive in any way to contradict or outweigh the testimony of the medical doctors which has been summarized and referred to in this decision.
Upon the basis of the entire record in this proceeding, I make the following findings of fact and conclusions of law.
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 the complaint and set forth heretofore in this decision.
3. The representations found to have been made by the Respondent are materially false and misleading.
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 3005 of Title 39, U.S. Code.
Full consideration has been given to 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.