In the Matter of the Complaint Against VIGOR TONE, Room 256, Department (NIC), 35 N.E. 17th Street at Miami, Florida 33132 P.S. Docket No. 1/129 October 4, 1972 William A. Duvall Chief Administrative Law Judge APPEARANCES: James J. Robertson, Esq. Consumer Protection Division Law Department United States Postal Service Washington, D.C. 20260 for the Complainant No appearance entered for Respondent
There being no appearance here entered on behalf of the Respondent, this proceeding will be conducted in accordance with < the provisions of 952.11(b) of the Rules of Practice, which provides that if the Respondent files an answer but fails to appear at the hearing, the presiding officer shall receive Complainant's evidence and render an initial decision. The initial decision follows.
This proceeding was initiated on July 11, 1972, by the filing of a complaint by the General Counsel for the U. S. Postal Service, in which it is alleged that Vigor Tone at Miami, Florida, is engaged in conducting 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, U. S. Code.
The scheme or device which the Respondent is charged with operating is described as a muscle building program.
Inspector Allen O. Peffer testified that in the course of his duties he investigated the activities of the Respondent in this case. In connection with that investigation he clipped from the April 30, 1972, issue of a publication known as the National Informer an advertisement advertising the Respondent's product. Responding to this advertisement, the Inspector, by means of a test letter, sent an order to the Respondent for the product. In due course the Inspector did receive the product which he had ordered, and along with the product, there came in the same mailing container a business reply envelope addressed to the Respondent, an order blank by means of which the purchaser could re-order the Respondent's product, and the instructions for use of the product.
The foregoing statements are supported by Complainant's Exhibits A through D-4, which were received in evidence. These exhibits establish conclusively that the Respondent in the conduct of its business does obtain and attempt to obtain money through the mails for its product.
In the complaint the Complainant charges that the Respondent makes the following representations in regard to its product:
(1) That the mere application of Respondent's product "Magic Muscle Cream", will have some substantial effect on the development of:
(a) bulging biceps;
(b) steel-like arms;
(c) lifeguard shoulders;
(d) gladiator back;
(e) mighty muscles.
(2) Respondent represents that the use of "Magic Muscle Cream" will effect the foregoing results in just 28 short days.
(3) That Respondent's product will work to build or rebuild muscle tissue.
(4) That Respondent will enclose all that is needed to effect the muscular development, Respondent represents is possible, in the package to be forwarded to the purchasers of Respondent's product.
The advertisement used by the Respondent, which was received in evidence as Complainant's Exhibit A, contains the following language:
"Magic Muscle-Building Cream Program-- Developed by Pro Athlete
"Build bulging biceps. Show steel-like arms.
Develop lifeguard shoulders. Grow a gladiator back] Amazing new all-natural cream helps make MIGHTY MUSCLES and turn you into a HE-MAN in just 28 short days.
"Mickey Doyle, former professional prize fighter- athlete and famous body-building, used this Magic Muscle Cream to help turn him into a young Hercules. He trained other athletes and helped them build he-man physiques--with this simple and ALL NATURAL muscle cream program.
"How to Use: Apply just like any skin lotion. Its six magic all-natural ingredients (Vitamin A, D, E, protein, moisturizer, helio-warmth) work to build and rebuild muscle tissues. Follow easily described program. Just minutes a day adds up to mighty muscles before four weeks are over. NO DRUGS] NO COSTLY EQUIPMENT] Everything you need in this one package. NO CHEMICALS]
"Guarantee: Try it for 10 days. Dissatisfied? Return package for full refund. No questions asked. Fair enough?
"ORDER TODAY: Send $4.00 for one month supply, or $7.00 for two month supply or $9.00 for three month supply. Orders shipped immediately. Send cash, check, or money order. Mail with name, address, zip code (a must) to:
Vigor Tone, Rm. 256, 35 North East .
17th St., Dept. (NIC) Miami, Fla. 33132"
From an examination of the advertising material used by the Respondent in the conduct of its business, when that advertisement is viewed as a whole and considered in the light of the impression that it would make upon the average reader, the conclusion is inescapable that the Respondent does make the representations set forth in the complaint. ( Donaldson v. Magazine , 333 U.S. 178).
The Complainant called as an expert witness Dr. Vincent F. Cordaro, a medical doctor, who testified in regard to the Respondent's muscle building cream program. Dr. Cordaro testified that the proper and only method of building a muscular physique is for the person to be on a nutritionally balanced diet with emphasis on proteins, and secondly, for this person to engage in a strenuous and continuous exercise program. Both the diet and the exercise program must be adhered to for extended periods of time in order for a person to build the type of physique that is generally described in the advertising material in use by this Respondent.
Dr. Cordaro testified unequivacally that there is no cream which, when used alone, will develop bulging biceps, steel-like arms, lifeguard shoulders, gladiator back, or mighty muscles.
Dr. Cordaro was just as positive in his testimony that there is no cream which could produce any of the foregoing results in 28 days, or even 28 years.
Neither is there any cream which has the capability of building or rebuilding muscle tissue. This result is produced only by the following of the diet and exercise programs previously described by the expert medical witness.
There was received in evidence as Complainant's Exhibit D-4 the Respondent's instructions for use of the Magic Body Cream. There are two comments which are appropriate in regard to this exhibit. First, contrary to the indications in the Respondent's advertise- ment, the instructions calls for engaging in certain types of exer- cise. The advertising material, on the other hand, makes it appear that the application of the cream is all that is necessary to permit the user to achieve the desires results.
Secondly, there is in the advertising material the statement that everything you need will be enclosed in this one package, which the purchaser receives when he orders the product from the Respondent. There is one important ingredient which is missing, and that is the diet program on which the doctor placed so much emphasis in his testimony in regard to a successful body-building program.
Dr. Cordaro testified that the evidence given by him in respect to this proceeding is in accord with the consensus of informed medical and scientific opinion in this field.
The representations found to have been made by the Respondent in the conduct of its business through the mails are false, and they are materially false.
In consideration of all the foregoing matters, I make the following findings of fact and conclusions of law:
1. The Respondent, Vigor Tone, Miami, Florida, is engaged in the sale of a product through the mails.
2. In connection with the Respondent's business, the Respondent advertises in a publication of wide circulation in the United States.
3. In Respondent's advertising material Respondent makes the representations set forth in paragraph IV of the complaint.
4. The representations made by Respondent in regard to its product are materially false as a matter of fact.
It is concluded as a matter of law that the Respondent 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, U. S. Code.
In view of the foregoing findings of fact and conclusion of law, a remedial order pursuant to Section 3005 of Title 39, U. S. Code, should be issued against this Respondent.
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