In the Matter of the Complaint Against GRAPEFRUIT DIET DIVISION, 2421 Colee Station at Ft. Lauderdale, Florida 33303 P.S. Docket No. 1/29January 24, 1972
William A. Duvall Chief Hearing Examiner
APPEARANCES: Thomas A. Ziebarth, Esq. Law Department Consumer Protection Office United States Postal Service Washington, D. C. 20260 for the Complainant Charles B. Chernofsky, Esq. 73 Ketewemoke Drive Halesite, New York 11743 for the Respondent
The Senior Assistant Postmaster General and General Counsel for the Postal Service, through the Assistant General Counsel in charge of the Office of Consumer Protection, filed a complaint on September 21, 1971, charging that Neltor, Inc. and Grapefruit Diet Division, Ft. Lauderdale, Florida, are 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 39 U. S. Code 3005.
A motion to dismiss the complaint insofar as it related to Neltor, Inc. was filed. The motion was supported by an affidavit of its president to the effect that the advertising of the product involved in this case had been abandoned by Neltor and would not be resumed. Complainant's Counsel indicating that no objection was interposed thereto, the complaint was dismissed as to Neltor, Inc., but the complained remained in effect as to the Respondent, Grapefruit Diet Division.
The hearing was continued to November 4, 1971, upon the representation, among others, by Respondent that it would be represented at the hearing by the counsel whose name appears above. However, Respondent was not present or represented at the hearing which was held as scheduled, pursuant to the following provisions of 952.11(b) of the Rules of Practice, a copy of which had been furnished to Respondent with the complaint and notice of hearing:
"(b) 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 complaint sets forth charges that Respondent is operating contrary to the controlling statute by engaging in the sale through the mail of a so-called "grapefruit diet" upon the basis of false representations. The elements of the complaint will be discussed separately.
Test correspondence conducted by a Postal Inspector establishes conclusively that the Respondent does use the mails to obtain and to attempt to obtain remittances of money for the product sold. (Comp. Exs. 1 through 5 and 7 through 11)
The substance of each alleged misrepresentation is as follows (numbered in accordance with the numbering system employed in the complaint):
1. Charge No. 3(a). Grapefruit is an essential part of the diet regimen and is efficacious, when eaten with the diet as
In regard to this charge, the advertisement contains the following excerpts which are not exhaustive but which serve as illustrative examples:
"How to Lose up to 10 Pounds
in only 10 days with Newest
Grapefruit 'Super-C' Diet
* * * *
"SUPER-C Grapefruit Diet is different .
* * * *
"it flushes fat out of your body.
* * * *
"it (Respondent's product) METABOLIZES (deep
stored fats) right out of your body."
2. Charges No. 3(b) and (c). Any obese person may, by using Respondent's product as directed, lose up to 10 pounds in 10 days without following a restrictive diet.
The basis for alleging that this representation is made is found in the following illustrative quotations from Respondent's advertising literature:
"You eat your fill* * * "You don't skip a single meal. In fact, you get hearty breakfasts, lunches, dinners. *** Just imagine...now you can partake of spareribs, thick, juicy steaks, fried chicken, pork, bacon and eggs, and scores of other 'prohibited' dishes.
* * * * * * * "you lose pound after pound -- even though you gorge yourself on scrumptious foods]"
3. Charge No. 3(d). The "Grapefruit Super-C Diet" provides all the vitamins needed for human nutrition without the need for supple- mental vitamins.
The basis for inclusion of this charge is found, among other places, in the following language in Respondent's advertisement:
* * *
"NO DRUGS ... NO PILLS
"No nauseating medicines. Not even
vitamin capsules are required."
4. Charge No. 3(e). Respondent's product is a new development in the area of weight reduction and is different from other so-called grapefruit diets.
This charge is stated in substance in the following illustrative language of the advertisement:
* * * * "The 'SUPER-C' Plan is new and different from other grapefruit diets.
* * * *
"SUPER-C Grapefruit Diet is different .
* * * * "This new Super-C Diet/Regimen helps you feel younger."
5. Charge No. 3(f). The Respondent's product, if used as directed, is 100% safe.
This representation is taken directly from column 2 of Appendix B where it appears under the sub-caption "ERASE OLD AGE LOOKS]" The statement is: "Besides, this natural plan is 100% safe."
6. Charge No. 3(g). The diet plan is "fun" and "easy."
At least one basis for this charge is found immediately follow- ing the language quoted above in connection with Charge No. 3(f), where it is said--
"*** It's fun. It's easy and economical to follow."
In addition to the specific language quoted above, the whole tenor and impact of Respondent's advertising literature supports the finding 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 interpreta- tion of the advertising material which is expressed in the charges of the complaint. ( Donaldson v. Read Magazine , 333 U.S. 178)
Complainant called as an expert witness Dr. Vincent Cordaro, a medical doctor, who testified in regard to the Respondent's diet program. The testimony of Dr. Cordaro is to the effect that, in his capacity as medical consultant to the Postal Service, he has examined a number of weight-loss plans and products, and there is nothing particularly novel about the plan involved in this case.
Grapefruit is a source of vitamin C, but there are other products which are just as good sources of this vitamin, such as oranges, lemons, other citrus fruits, peppers and tomatoes. The presence of grapefruit as recommended in Respondent's diet does not contribute materially to a rapid and substantial loss of accumulated fat. Grapefruit has been advertised for some extended time as a catalyst which burns fat, thus enabling a person to eat any fat and protein, but limit carbohydrates, and still lose weight because of the action of the grapefruit which is to be eaten at the same time. In fact, grapefruit has no special properties or capabilities as a metabolizer of fat. Aside from the vitamins, the few calories and the slight bulk it would provide, the inclusion of grapefruit in a weight-reduction diet would have no special effect. The loss of or diminution of body fat is produced by the ingestion of fewer calories than the body expends. There are no food or chemical agents which will reduce body fat in the normal person.
The diet plan sold by Respondent, if followed, does not permit the user to eat his fill. Diets are prescribed by Respondent which are quite restrictive. In spite of this fact, however, no person would be able to lose as much as 10 pounds in 10 days. To lose one pound, a person requires a net deficit of 3500 calories. Therefore, even if a person should ingest only 1000 calories a day, the required caloric deficit needed to lose 10 pounds in 10 days would not be realized. If the user were to adhere strictly to Respondent's diet plan, he might lose 5 pounds in 10 days, but he could not eat as much as he wanted and achieve that result.
Respondent's plan is nutritionally adequate for a person who desires to lose weight, but it should not be followed as a normal, daily routine. Followed too long and without supervision, the diet could produce deleterious effects for persons having abnormal heart or kidney conditions.
The diet is not easy to adhere to, and the user does not find it fun to follow the diet regimen, because the amounts of food are so restricted that hunger and discomfort would ensue because of the lack of satiety.
1. The Respondent is engaged in the sale through the mails of a so-called "Grapefruit Super-C Diet."
2. In engaging in the sale of said diet, Respondent obtains and attempts to obtain remittances of money through the mails by means of advertising matter appearing in various publications widely distributed throughout the United States.
3. In the advertising material used by Respondent as aforesaid, Respondent makes, or makes in substance, the representations set forth in paragraph 3, and its subparagraphs, of the complaint filed herein.
4. The advertising representations found in Finding of Fact Number 3 to have been made by Respondent are false, with the following exceptions:
A. There is no sufficient evidentiary basis to support a finding of falsity in regard to representa- tion 3(d) "that the 'Grapefruit Super-C Diet' provides all of the vitamins needed for human nutrition without the necessity of supplemental vitamins"; and
B. The evidence of record in regard to the safety of following Respondent's diet regimen is that the following of the diet under proper supervision is not considered to be likely that all persons who order the diet will consult with their physicians about it and, under these circumstances, or if the diet is followed too long, it becomes hazardous.
Upon consideration of the entire record, and in the light of the facts and circumstances discussed herein, it is concluded that the Respondent has been, and is, engaged in conducting a scheme or device for obtaining money or property through the mails as proscribed by 39 U. S. Code 3005.
A remedial order should be issued pursuant to the governing statute against this Respondent.
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