In the Matter of the Complaint Against ALPINE SKI DIET, Post Office Box 284 at Alpine, California 92001 P.S. Docket No. 1/139September 27, 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
This proceeding was initiated by the filing by the General Counsel for the United States Postal Service, the Complainant, of a complaint on July 28, 1972, in which the Respondent, Alpine Ski Diet, Alpine, California, is charged with conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of Title 39, United States Code 3005.
On behalf of the Respondent an answer was filed on August 11, 1972. After some preliminary motions were disposed of, this matter was set down for hearing in Lost Angeles, California, for September 15, 1972.
The hearing proceeded as scheduled. There was no appearance entered on behalf of the Respondent and in accordance with the provisions of 952.11(b) of the Rules of Practice, the presiding officer has heard the evidence offered by Complainant and is now proceeding to issue an initial decision.
Specifically, the complaint charges the Respondent with engaging in an enterprise contrary to the statute by selling and offering to sell through the mails a diet plan or program upon the basis of false representations.
Postal Inspector Gerald E. Raftery conducted the investigation of this case and in connection with that investigation, he conducted test correspondence with the Respondent. This test correspondence culminated in the ordering from and the delivery by the Respondent the diet which was being offered for sale by the Respondent.
This test correspondence was received in evidence as Complainant's Exhibits 1 through 5, and Exhibit No. 1. is the advertisement which prompted the Inspector to order the product and begin his investigation. The exhibits just referred to clearly establish that the Respondent does use the mails to obtain and attempt to obtain remittances of money for the product sold.
The charges in the complaint in this proceeding are relatively brief and they read as follows:
(a) That an individual can lose 20 pounds in two weeks by following the Women's Alpine Ski Team Diet;
(b) That the dieter will experience no feeling of weakness or hunger while adhering to the diet because the basis of the diet is chemical;
(c) That the diet was devised by a famous Colorado physician especially for U. S. Skiers; and is used by official U. S. Ski Teams during the off season to get and stay in shape;
(d) That the diet is specially formulated to allow the dieter to maintain his normal energy while reducing; and
(e) That the diet is easy to follow by all individuals under all circumstances.
The above charges are predicated upon an advertisement used by the Respondent, a copy of which was received in evidence as Complainant's Exhibit No. 1. This advertisement is also relatively brief and it reads as follows:
LOSE 20 POUNDS
IN TWO WEEKS]
Famous Women Alpine Ski Team Diet
With the amazing Women's Alpine Ski Team diet you
can lose 20 pounds in just two weeks. This diet is
used by U.S. Skiers during the off season to get and
stay in shape. It allows you to obtain your best
individual weight, thus become stronger, more agile,
and more alert.
The diet, devised by a famous Colorado physician
especially for U.S. Skiers, allows you to maintain
normal energy while reducing.
Since the basis of the diet is chemical, you do
not have the feeling of weakness or hunger that is
prevalent with so many other diets. It is a diet that
is easy to follow, whether you work, travel or stay at
home. Whether you lead an active or sedentary life,
you can lose weight the scientific, proven way.
You owe it to yourself to try the fantastically
successful 'Alpine Ski' diet. Remember you can lost 20
pounds in just 14 days] To look and feel great, order
today. Tear this out as a reminder.
Send only $2.00 ($2.25 for Rush Service)--Cash is
OK -- to: Alpine Ski Diet, Dept. 3E, P.O. Box 284,
Alpine, Calif. 92001. If you expect to lose 20 pounds
in two weeks, then this is the diet for you. Money
back guarantee."
A fair interpretation of the advertising material used by the Respondent, leads inevitably to the conclusion that when viewed as a whole and when considered in the light of the effect the advertising material would have on the average reader, such reader would reasonably derive the interpretation of the advertising material which is expressed in the charges of the complaint.
In regard to the charge that the representations found to have been made by the Respondent are false, the Complainant called Dr. Vincent F. Cordaro, a medical doctor, who is well qualified to give testimony in the area of medicine which is involved in this proceeding. Dr. Cordaro testified that the method of choice in treating a person for obesity is to see the patient individually and to prescribe a well balanced diet, which will meet the nutritional needs of that patient, while, at the same time, lowering his caloric intake. The diet plan offered by the Respondent fails to meet that criterion in a number of respects.
To begin with, it is not an individualized diet, but it is offered for sale to any and all persons who will make the required remittance, regardless of their degree of obesity, or other physical ailments with which they might be afflicted.
The following of this diet will not produce the promised loss of 20 pounds in 2 weeks for the average obese person. The reason for this fact is that although the diet calls for the ingestion of only 1200 to 1400 calories per day, a net deficit per day of several thousand calories would be necessary in order for a patient to achieve the promised weight loss. In order to produce this net deficit of several thousand calories per day, the individual following the diet would have not only to ingest fewer calories than he was accustomed to doing, but in addition his expenditure of energy would have to be increased enormously.
Contrary to the statement in the advertising material used by the Respondent, the medical expert testified that a person following this diet would feel weakness and hunger for the time that he was on the diet. In addition, the general efficiency of the individual would be decreased in most cases while the person was following the diet offered for sale by this Respondent.
The statement in the advertising literature that "The basis of the diet is chemical", is a statement which the medical expert said is baffling to him for the reason that it has not medical significance.
Finally, Dr. Cordaro indicated that the following of this diet would be a very difficult matter for the average person.
The testimony given, as indicated above, by Dr. Cordaro, represents the consensus of informed medical and scientific opinion on the subjects concerning which the doctor testified.
In view of the foregoing facts and circumstances, I make the following findings of fact and conclusions of law.
1. The Respondent, Alpine Ski Diet, of Alpine, California, is engaged in the sale, through the mails, of a so-called "Women's Alpine Ski Team Diet".
2. In engaging in the sale of said diet, the Respondent obtains and attempts to obtain remittances of money through the mails by means of advertising matter appearing in a publication of wide distribution throughout the United States.
3. In the advertising material used by the Respondent, as aforesaid, the Respondent makes or makes in substance, the representations set forth in Subparagraphs (a) through paragraph (e) of Paragraph 3 of the complaint filed herein.
4. The representations set forth in Subparagraphs (a), (b), (d), and (e) of Paragraph 3 of the complaint are false.
5. In regard to representations embodied in Subparagraph (e) of Paragraph 3 of the complaint, I find that there is insufficient evidence to support the charge that this claim is false. For example, the testimony of Inspector Raftery is that he consulted the Coach of the Women's Ski Team and the Coach indicated that he designed the diet initially, based on what he described as the Mayo Clinic Diet. The Ski Team Coach then checked with a doctor who is on the staff of Saint Lukes Hospital in Denver, Colorado, and the results of that consultation are not precisely spelled out in that regard. It is not clear whether the doctor did or did not make changes in the diet. The record is clear that he did express his approval of the final form which the diet took, not for the purpose of producing a weight loss of 20 pounds in two weeks, but only for producing a weight loss of from 4 to 8 pounds in that period of time. Also, it is clear from Inspector Raftery's communication with the Coach of the Ski Team that this diet was designed for and used by the Women's Ski Team. So, on the basis of this evidence, there is insufficient proof of the falsity of the charge set fort in Subparagraph (c) of Paragraph 3 of the complaint.
It has been pointed out before that no appearance was entered on behalf of the Respondent in this proceeding. No oral testimony or other evidence was introduced in behalf of the Respondent. Sincere there is a record consisting of medical evidence supporting the complaint as indicated above, this evidence amply supports the findings of fact heretofore made ( U.S. Health Club v. Major , 292 F.2d 665, Third Circuit, 1961).
It is concluded that the Respondent, Alpine Ski Diet, of Alpine, California, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations.
In view of the foregoing findings of fact and conclusion of law, a mail stop order, as provided in Section 3005, Title 39, United States Code, should be issued against this Respondent.
_________________