In the Matter of the Complaint Against SAUNA BELT, INC., and P. O. Box 3984 at San Francisco, California 94119 P.S. Docket No. 3/4310/04/72
Lewis, John
APPEARANCES:
Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C. for Complainant
John F. Banker and Nathan G. Gray, Esqs. Stark, Stewart, Simon & Sparrowe Oakland, California and Timothy J. May, Esq. Patton, Blow, Verrill, Brand & Boggs Washington, D.C. for Respondent
This matter is now before me for final decision, on exceptions filed by Complainant to the Initial Decision of the Chief Hearing Examiner recommending dismissal of the complaint herein. Said complaint charges Respondent 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.C. § 4005 (now § 3005). The false representations charged in the complaint are alleged to have been made in connection with the advertising and sale of a device known as the "Sauna Belt", and relate principally to the efficacy and safety of said device as a waistline reducer.
Hearings for the reception of evidence in support of, and in opposition to, the charges were held before the Chief Hearing Examiner of the Post Office Department (now U.S. Postal Service), from June 9 to June 19, 1970. At the conclusion of Complainant's case-in-chief the Hearing Examiner granted, in part, a motion by Respondent to dismiss certain allegations of the complaint on the ground that the representations charged to be false were not made in Respondent's advertising matter. At the close of all the evidence, and following the filing of proposed findings of fact and conclusions of law, the Hearing Examiner issued his Initial Decision, on January 20, 1971, in which he (1) reaffirmed his ruling made at the end of Complainant's case-in-chief dismissing certain of the allegations of the complaint, (2) found that certain additional representations alleged in the complaint were not made in Respondent's advertising matter, (3) found that Complainant had failed to establish that the remaining representations alleged in the complaint were false, and (4) recommended that the complaint be dismissed.
Complainant has excepted to a number of the Hearing Examiner's rulings dismissing various allegations of the complaint on the ground that Respondent's advertising matter did not make the representations alleged in the complaint. Complainant has also excepted to the Hearing Examiner's findings that Complainant had failed to sustain the burden of proving that the remaining representations were materially false.
The undersigned was initially appointed by the Postmaster General as Acting Judicial Officer, on March 1, 1971, for the purpose of deciding the appeal in this proceeding due to the fact that the then Acting Judicial Officer was the Hearing Examiner herein. Upon appointment of a regular Judicial Officer, the undersigned's designation was continued, subject to the filing of exceptions to such order on or before June 14, 1971. No exceptions to such designation were filed.
The complaint alleges that Respondent has represented to the public, in its advertising matter, that the wearing of its Sauna Belt will enable users to achieve certain results. These are, in substance, that (a) the wearing of the belt will enable users to achieve certain losses from the waistline and other benefits, (b) alternatively, the results enumerated in (a) above may be achieved by the belt when used in conjunction with certain exercises, (c) the enumerated results will be permanent, (d) the enumerated results will occur regardless of the user's girth, age, health or physical condition, (e) the enumerated results will occur regardless of the user's diet, (f) any slimming that may occur will result primarily from the wearing of the Sauna Belt and not from the exercises, (g) the reduction in girth attained may be retained "by using the belt about twice a week", (h) the Sauna Belt is a "new idea in slenderizing", (i) the exercises to be used in conjunction with the belt are new, specially designed for the belt, may be easily and safely performed by any user, and take little time, and (j) certain of the exercises are safe for persons with lower back problems.
At the end of Complainant's case-in-chief, the Chief Hearing Examiner, on motion of Respondent, struck certain of these allegations, apparently on the ground that Respondent's advertising matter did not make the representations alleged. Those stricken as to which exceptions have been filed are the allegations that Respondent represented (1) the wearing of the Sauna Belt alone will achieve the indicated results, (2) the indicated results will occur regardless of the user's girth, age, health or physical condition, (3) the indicated results will occur regardless of diet, (4) any slimming achieved results primarily from the Sauna Belt and not the exercises, (5) the exercises are specially designed for use with the Sauna Belt and (6) the exercises take little time. Exceptions have also been filed to the Hearing Examiner's failure to find, in his Initial Decision, the making of the representations that (1) the use of the Sauna Belt in conjunction with the prescribed exercises will result in a loss from the waistline of as many inches as the user desires and (2) the prescribed exercises may be easily and safely performed regardless of the user's age, health or physical condition. 1/ Exceptions have likewise been filed with respect to the Hearing Examiner's findings that Complainant failed to carry the burden of establishing the material falsity of the remaining representations, which he found had been made by Respondent.
A resolution of the issues presented on this appeal depends, in large measure, on what legal criteria are used for (a) interpreting Respondent's advertising matter in order to determine what representations it made and (b) determining whether Complainant has sustained the burden of proving the falsity of the remaining representations, in view of the conflict in the medical and scientific testimony. Complainant's brief on appeal and Respondent's reply brief reflect a basic difference in what the <
Counsel for Complainant suggests that the Hearing Examiner did not apply the proper legal criteria in determining that Respondent did not make certain of the representations alleged in the complaint. Thus, counsel notes that the Hearing Examiner took cognizance of certain qualifying or explanatory language in the advertising matter as limiting the representations made by Respondent. Counsel for Complainant argues:
"Assuming arguendo that a careful reading discloses subtle qualifications of claims, the protection of § 4005 extends not only to the careful reader, but to 'that vast multitude which includes the ignorant, the unthinking and the credulous', Charles of the Ritz v. FTC, 143 F.2d 676, 679 (CA 2, 1944)." (CB at 6) 2/
Respondent, however, argues that the criteria applied in cases arising under the Federal Trade Commission Act are not applicable to the Postal statute since the former is directed at advertising which has the "tendency to mislead", while the latter is directed at actual falsity in advertising. (RRB at 55)
Whatever differences may exist in the application of the two statutes, there is no significant difference, in my opinion, in the standard to be used for determining how advertising should be interpreted. Both are remedial statutes intended to protect the consuming public from misrepresentations by the vendors of merchandise. In determining whether there is any misrepresentation or falsity in advertising it is necessary, under both statutes, to determine what it is that is being represented. In both instances, the advertising matter must be viewed in the light of how it would be interpreted by the general public to which it is addressed. As noted in Charles of the Ritz, cited by counsel for Complainant, the general public comprises "that vast multitude which includes the ignorant, the unthinking and the credulous".
In Donaldson v. Read Magazine, 333 U.S. 178, 189, a leading case prior to the 1968 amendment of the Postal statute, the Court stated that advertisements should be interpreted "in the light of the effect they would most probably produce on ordinary minds". Decisions since Read have made it clear that the reference to the "ordinary mind" is not interpreted as establishing a constituency which is more restrictive than that falling within the protection of the Federal Trade Commission Act. On the contrary, succeeding cases have considered the two statutes as being in pari material, insofar as the standard for interpreting the meaning of advertising is concerned. Thus, in Gottlieb v. Schaffer, 141 F.Supp. 7 at 16 (S.D.N.Y. 1956), the court, after referring to the above-quoted language in Read, concluded that the Postal statute was intended to protect "the gullible and the simple . . . even though they do not reach the level of the 'ordinary mind'". The court further stated:
"The purpose of the Postal statute is to protect the unwary and unsuspecting, as well as the knowledgeable or worldly-wise--those who are 'trusting as well as suspicious.' 3/ The public includes 'that vast multitude *** the ignorant, the unthinking and the credulous.'4/ The fact that informed and sophisticated persons would laugh off, or even be amused by obviously false and absurd statements in an advertisement does not detract from their power to deceive the ignorant, gullible and less experienced.5/
* * *
In Stein v. Pilling, 256 F.Supp. 238 (D.N.J. 1966), the court stated that the test in Read (that advertisements should be determined "in the light of the effect they would most probably produce on ordinary minds") had been "amplified" in P. Lorillard v. Federal Trade Commission, 186 F.2d 52, 84 (4 Cir. 1950), from which it quoted with approval as follows (at 243):
"In determining whether or not advertising is false or misleading within the meaning of the statute, regard must be had, not to fine spun distinctions and argument that may be made in excuse, but to the effect which it might reasonably be expected to have upon the general public. 'The important criterion is the net impression which the advertisement is likely to make upon the general populace.'"
The decision in the Stein case was affirmed, per curiam, by the Third Circuit Court of Appeals, 379 F.2d 554, "for the reasons so well stated" by the District Court in its opinion.
The foregoing decisions interpreting the Postal statute involve the pre-1968 statute, when the law was interpreted as requiring a showing not merely that Respondent had used false advertisements, but that he had done so with an intent to defraud or deceive. As a result of the amendment of the law in 1968, the requirement for a showing of intent was eliminated as a necessary element of the offense, and the Postal statute was brought even closer to the Federal Trade Commission Act in its application. The amendment eliminated the words "false or fraudulent pretenses" from the original statute and substituted the words "false representations".
The purpose of the amendment was stated as follows (H.R. Rep. No. 235, 90th Cong., 1st Sess. 3, 1967):
"It is the purpose of this legislation to improve one of the major statutory measures for protecting the consuming public by eliminating the necessity for establishing an 'intent to deceive' in connection with the issuance of mail-stop orders by the Postmaster General under 39 U.S. Code 4005, which are issued to protect consumers who are being victimized by false representations by promoters through the U.S. mails."
The Senate Report similarly reflects a purpose "to protect the public from false and misleading advertisements" (S. Rep.No. 886, 90the Cong., 1st Sess. 1, 1967). One of the sponsors of the legislation, Congressman Udall of Arizona, stressed in his testimony before the House Committee the desirability of eliminating the requirement for a showing of an intent to misrepresent, which he stated "place s a greater burden upon the Post Office Department than upon other Federal agencies operating in similar consumer areas, agencies such as the Food and Drug Administration and the Federal Trade Commission" (emphasis supplied), (Hearings Before the Subcommittee on Postal Operations, 90th Cong., 1st Sess., Ser. No. 90-3 at 3). Under the latter statute (15 U.S.C. § 52), the dissemination of "any false advertisement by United States mails, or in commerce by any means, for the purpose of inducing, or which is likely to induce . . . , the purchase of foods, drugs, devices or cosmetics" is considered to be an unfair or deceptive act and practice within the meaning of the Federal Trade Commission Act.
It is difficult to conceive that, in eliminating the principal element that distinguished the Postal statute from the Federal Trade Commission Act, viz., the element of intent, in the interest of "protecting the consuming public", Congress, nevertheless, intended to establish a different standard for interpreting the falsity of advertisements under the Postal statute from that applicable under the Federal Trade Commission Act. On the contrary, it must be assumed that it was aware of the decisions prior to the amendment of the Postal statute, which viewed the statutes as being in pari material, insofar as the criteria applicable in determining how advertising should be interpreted.
The 1968 amendment to the Postal statute is also relevant on the issue of how the falsity of representations should be determined. Respondent argued before the Hearing Examiner (Reply Brief at 1-2), and takes the same position in its brief on appeal (RRB at 64), that in order to establish the falsity of the representations made Complainant has the burden of establishing that "there exists a universality of scientific opinion supporting Complainant's position". Respondent cites, in this regard, American School of Magnetic Healing v. McAnnulty, 187 U,.S. 94, 105-106 (1902), which it contends was reaffirmed in Reilly v. Pinkus, 338 U.S. 269, 274 (1949), and which it argues precludes the issuance of a postal mail-stop order where there is a divergence of medical opinion (RRB at 64). Complainant, on the other hand, argues that the divergence in medical opinion does not, as a matter of law, preclude a finding of misrepresentation.
For the reasons which will be hereinafter more fully discussed in connection with the "falsity" issue, Respondent's reliance upon the McAnnulty and Reilly v. Pinkus cases is misplaced. Both were decided under the Postal statute prior to its 1968 amendment, when a showing of an intent to defraud was considered an element of the offense. While a divergence of medical opinion might, as a matter of law, have precluded a finding of violation under a statute requiring a showing of an intent to deceive, it cannot do so under the statute as amended in 1968, where the question is whether a representation is false and not whether the Respondent acted in good faith in relying on a contrary medical opinion in the preparation of its advertising copy.
With these principles and criteria in mind, consideration will not be given to the specific exceptions filed by Complainant. Such exceptions will be considered in the following groupings: (a) The dismissal of allegations at the end of Complainant's case-in-chief, (b) the failure to find, in the Initial Decision, that certain representations were made, and (c) the finding that Complainant had failed to sustain the burden of proof concerning the material falsity of the representations found to have been made.
A. Allegations Dismissed at End of Complainant's Case-in-Chief
1. Paragraph 3(a)--Results Achievable by Wearing Sauna Belt
Paragraph 3(a) of the complaint charges the Respondent with representing, in its advertising matter, that the wearing of the Sauna Belt will achieve certain results, consisting principally of the loss of various amounts from the waistline during various time-periods. This paragraph must be viewed in conjunction with Paragraph 3(b) which alleges, in the alternative, that Respondent represents these results will be achieved by the use of the Sauna Belt in conjunction with certain exercises.
In moving to dismiss Paragraph 3(a) at the end of Complainant's case-in-chief, Respondent argued that it did not represent "the mere wearing of the Sauna Belt . . . without doing any exercise, will effect the . . . specific results enumerated in Subparagraphs (i) through (v) of Paragraph 3(a)." It contended that: "The advertising matter is very plain that this is an exercise program, that the Sauna Belt is to be used with the exercises" (Tr. 692).6/ Since the Hearing Examiner struck this allegation at the end of Complainant's case-in-chief he presumably agreed that Respondent's advertising matter could not be construed as representing that the Sauna Belt, without more, i.e., without performing the exercises, would achieve the indicated results.
Counsel for Complainant notes, in his brief on appeal, that the principal thrust of Respondent's advertising is on the Sauna Belt, with the exercise program being "almost totally eclipsed". He contends that "the advertisement if read casually tends to mislead because of its emphasis upon the belt and the de-emphasis of the exercise program" (CB at 7-8). He argues that the responsibility of the Postal Service under the statute is similar to that of the Federal Trade Commission which, as stated in Parker Pen Co. v. Federal Trade Commission, 159 F.2d 509 at 511 (7 Cir. 1946), is:
". . . to protect the casual, one might say the negligent, reader, as well as the vigilant and more intelligent and discerning public."
It is Respondent's position that "Complainant's 'emphasis' argument is not appropriate to this proceeding" since, as previously noted, Respondent contends the decisions under the Federal Trade Commission Act are not apposite to the Postal statute (RRB at 55). In its view the reference to the exercises at various places in the advertisement makes it sufficiently clear to the reader that the performance of the exercises are a necessary part of the Sauna Belt waist-reduction program. Respondent notes, in this connection, the Hearing Examiner's statement made with respect to another of the representations charged, that the "necessity of doing exercises . . . is made clear in Respondent's advertising" (I.D. at 8).
In my opinion there would be a substantial segment of the general populace which, as the courts have noted, includes the "ignorant, the unthinking and the credulous", who would interpret Respondent's advertising matter as representing that the results therein promised will be achieved solely through the use of the Sauna Belt. While there are some incidental references to the performance of exercises, these would be apt to be overlooked by many readers in view of the overwhelming emphasis in the advertisements on the Sauna Belt. The advertisement is headed:
"THE FASTEST, MOST EFFECTIVE WAISTLINE REDUCER EVER DISCOVERED The Incredible New SAUNA BELT"
It refers in the text to:
"SAUNA BELT--the first really new idea in slenderizing in years produces sensationally rapid results in reducing the waistline . . . "
Following this are extracts from four testimonial letters (purportedly received from users of the device) which refer to "Using the Sauna Belt" or "used the Sauna Belt" and achieving a reduction in the waistline, and which make no reference to the performance of any exercises. Not until halfway through the advertisement is there any reference to exercises. This appears, in much smaller type, under the heading:
"WHAT IS THIS SENSATIONAL NEW 'SAUNA BELT'?"
After four lengthy sentences describing the belt and its use, a reference appears to performing "the two magic waistline reducing exercises, specially designed for use with this remarkable belt." There are several additional brief references to "two magic waist reducing exercises" and "exercises", but they would be apt to be overlooked by many readers. The repeated references to the Sauna Belt dominate the advertisement and the overall impression given is that it is the Sauna Belt which is the key instrumentality for achieving the promised results.7/
2. Paragraph 3(f)--Sauna Belt "Primarily" Responsibl e for Slimming
In addition to charging Respondent, in Paragraph 3(a), with representing that the indicated results will be achieved thorough the use of the Sauna Belt, and in the alternative, in Paragraph 3(b), with representing that they will be achieved by a combination of the Sauna Belt and the exercises, the complaint also charges, in Paragraph 3(f), that Respondent represented the slimming of the waistline or tummy "results primarily from the wearing of the Sauna Belt, and not from the exercises". This charge was stricken by the Hearing Examiner at the end of Complainant's case-in-chief, on motion of Respondent, presumably because he agreed with Respondent's argument that the advertising made it clear that the losses would be achieved from a combination of the belt and the exercises.
As has previously been found, many ordinary readers would be apt to overlook the reference to the exercises, and would understand that the slimming effect was due solely to the Sauna Belt. However, even among readers who might take note of the reference to the "two magic exercises", there would be many, in my opinion, who would gain the impression that whatever slimming was achieved would be due primarily to the Sauna Belt and not to the exercises. The references to the belt, some of which have been heretofore quoted, are so dominant, persistent and positive, and the references to the exercises are so casual and brief, that many of the readers who did note the references to the exercises would be apt to believe that they are an incidental and insignificant factor in the loss of girth.
3. Paragraph 3(d)--Results Achievable Regardless of Girth, Age, Health or Physical Condition
Paragraph 3(d) of the complaint alleges that Respondent has represented that the results enumerated in Paragraph 3(a), viz., that certain losses from the waistline will be achieved through the use of the Sauna Belt, "will occur regardless of the user's girth, age, health or physical condition." Counsel for Complainant does not cite any specific language in the advertisement in which this representation is specifically made. He seeks to infer such representation from the fact that the advertisement "unqualifiedly promises these results".
While the advertisement does not specifically state that the results promised may be achieved without regard to the individual's girth, age, health or physical condition, they are stated in such broad, unqualified terms that, in my opinion, many readers would be apt to infer that the results are achievable by all users, without regard to the particular user's girth, age, health or physical condition. As stated in Aronberg v. Federal Trade Commission, 132 F.2d 165, 167 (7 Cir. 1942), the "ultimate impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied". This observation has particular application to the allegation here under consideration.
4. Paragraph 3(e)--Results Will Occur Regardless of Diet
Paragraph 3(e) of the complaint alleges that Respondent has represented the results enumerated in Paragraph 3(a) of the complaint "will occur regardless of the user's diet". In support of this allegation counsel for Complainant cites the language of the advertisement that the Sauna Belt will produce results "without the need for any weight loss."
In moving to strike this allegation at the close of Complainant's case-in-chief, counsel for Respondent conceded that the reference in the advertisement to the lack of need for losing weight was equivalent to representing that a reduction in waistline could be achieved "without the need for any dieting" (Tr. 696). However, he argued that the allegation of the complaint could be interpreted as representing that the reduction in waistline could be achieved "while gaining weight" (emphasis supplied). The position taken by counsel for Complainant at the hearing is not entirely clear, he contending that the advertising meant "you don't have to worry about your diet" (Tr. 706). The basis of the Hearing Examiner's dismissal of this allegation does not appear from the record, but he presumably agreed with Respondent's argument.
In my opinion, it would be a strained construction of paragraph 3(e) of the complaint to interpret it as alleging that Respondent represented a loss of girth can be achieved despite a gaining of weight by the user of the belt. The natural interpretation of this paragraph is substantially that which Respondent conceded it was claiming in its advertising, viz., that a reduction in weight can be achieved by Respondent's method "without the need for any dieting." this, in essence, is what counsel for Complainant argues, in his brief on appeal, the advertising means, viz., that the user of Respondent's belt "need not change his diet" (CB at 10). Normally the public associates a reduction in weight with the need to go on a diet involving a lesser caloric intake. This aspect is what discourages many people from participating in such programs. However, when one is told he can lose girth without losing weight he would infer he need not go on a diet, i.e., he can continue to eat as he has. However, he would not be apt to infer from this that he may actually gain weight and still lose girth, and I do not understand that this paragraph of the complaint so alleges. It is found that Respondent's advertising does substantially make the representation alleged.
5. Paragraph 3(i)(ii)--Exercises "Specially Designed"
Subsection (ii) of Paragraph 3(i) alleges that Respondent represents in its advertising matter that the exercises to be used in connection with the Sauna Belt are "specially designed for use with" the Sauna Belt. Since this portion of the complaint is based on specific language in the advertisement, there is no question but that Respondent does make the representation in question. The only issue raised on the appeal is whether the representation involves a material matter, this being the ground on which Respondent moved to dismiss (Tr. 698). In my opinion it does.
It is common knowledge that many programs for weight or waist reduction contain exercises as a required element of the program. Many people do not participate in such programs or cease participation therein because the exercises are too difficult, take too much time, have been found to be ineffective or for other reasons related to the performance of the exercises. It seems evident that Respondent's reference to the exercises, brief as it may be, was calculated to appeal to such people by referring to its exercises as "two magic waistline reducing exercises, specially designed for use with this remarkable belt", and assuring the reader that they "take just a few minutes". The reference to the exercises as "specially designed" for use with the belt was obviously included in the advertisement to overcome reader resistance. It is difficult to conceive that Respondent used valuable advertising funds to pad its advertising matter with immaterial claims, which had no purpose of inducing readers to purchase its product.
6. Paragraph 3(i)(v)--Exercises Take Little Time
Subsection (v) of Paragraph 3(i) alleges that Respondent represented in its advertising matter that the reducing exercises to be used in connection with the Sauna Belt "take little time". The ground of Respondent's motion to dismiss this allegation at the end of Complainant's case-in-chief was not that it did not make the representation, but rather that it "is not a material allegation" (Tr. 699).
While Respondent does not specifically state in its advertising matter that the exercises will take only a little time, it uses the expression "just a few minutes". From this language and the general tenor of the references to the exercises, the impression created is that the performance of this portion of the reduction program will require only a little time. The only issue now presented, is whether the representation made involves a material matter. In my opinion, for substantially the same reasons as stated in connection with the exceptions to the striking of Paragraph 3(i)(ii), it does involve a material matter. The reference to the brevity of time in accomplishing the exercises was obviously intended to overcome the objection of those who have found, or have been under the impression, that the performance of such exercises are extended and time consuming.
B. The Representations Found Not To
Have Been Made
As heretofore noted, the Hearing Examiner, in addition to dismissing a number of representation-allegations at the end of Complainant's case-in-chief, also found in his Initial Decision that various other representations alleged in the complaint were not made by Respondent. Consideration is now given to the exceptions filed with respect to the Hearing Examiner's failure to find that these representations had been made by Respondent in its advertising matter.
1. Paragraph 3(b)(iv)--Loss of As Many Inches As Desired
Among the results which it is charged Respondent represents will be achieved from the combined use of the belt and the exercises, is that set forth in Subsection (iv) of Paragraph 3(b) of the complaint, viz., "a loss from the waistline of as many inches as the user desires". Complainant's contention that Respondent does make the representation charged is based on the following statement in Respondent's advertisement, which appears under the heading "How Long Must I Use the Sauna Belt?" (Ex. C-6-A):
"It is recommended that you use the belt for a few minutes each day for 3 days in a row when you first get the belt and then about 2 or 3 times a week until you have lost as many inches as you desire" (emphasis added).
The Hearing Examiner found that this statement did not justify the interpretation sought to be placed upon it by Complainant, since it was preceded by the following language after the question:
"How Long Must I Use the Sauna Belt?":
"that depends on your goals--how many inches you want to lose from your waistline and the rate at which your body responds. Each person's body makeup is different, therefore the degree of loss will vary with individuals."
The Hearing Examiner found that the average person reading the language "until you have lost as many inches as you desire" would interpret it in the light of the preceding explanation as meaning that "repeated use of the belt as directed will produce any desired reduction within the limitations of one's own physical characteristics" (emphasis supplied).
In my opinion the language cited by the Hearing Examiner in his Initial Decision does not place any limitation on the representation explicitly made in the advertisement, upon which Complainant relies. The advertisement makes the explicit statement that the user may expect to lose "as many inches as you desire." There is nothing in the language preceding or succeeding this statement which places any limitation on the amount of loss which the user may expect to achieve. The qualifying language referred to by the Hearing Examiner relates primarily to the amount of time it will take to achieve the loss and does not negate the statement that the user can expect to lose as much as he wants. The particular section of the advertisement in which the language relied upon by Complainant appears is headed: "HOW LONG MUST I USE THE SAUNA BELT" (emphasis supplied). The answer given in the advertisement is that it "depends on your goals--how many inches you want to lose from your waistline and the rate at which your body responds." The reader is told that the "degree" of loss will differ because "each person's body make-up is different". However, he is assured thereafter that by using the belt in accordance with the recommended schedule he can lose "as many inches as you desire". Following this the reader is told that the "speed of inch loss" (emphasis supplied) may vary with his "particular metabolism", but he is guaranteed a minimum amount of loss in three days. The only language in the advertisement which in any way relates to amount of loss, as distinguished from rate or time of loss, is the word "degree" in the center of this portion of the advertisement. However, in the context in which it appears it too connotes a time, rather than an amount, limitation. At best, the language is ambiguous and the language cited by Complainant would be interpreted by all but the most sophisticated of readers as implying that the user can achieve an unlimited amount of loss from his waistline, so long as he has the patience to persevere in the program.
The difficulty with the Hearing Examiner's finding with respect to this, and several of the other representations which he found Respondent had not made because of various explanatory or qualifying language used in the advertisement, is that he has viewed the advertisements from the vantage point of "an educated analytical reader" (Aronberg v. Federal Trade Commission, supra). As stated in the Aronberg case:
"The weakness of this position . . . lies in the fact that such representations are made to the public, who, we assume, are not, as a whole, experts in grammatical construction. Their education in parsing a sentence has either been neglected or forgotten. . . . Advertisements are intended not 'to be carefully dissected with a dictionary at hand, but to produce an impression upon' prospective purchasers. Newton Tea & Spice Co. v. United States, 288 F. 475, 479 (CCA 6, 1923)."
The court held, as previously noted, that advertisements should be interpreted in the manner in which they would be read by the general public, "that vast multitude which includes the ignorant, the unthinking and the credulous".
2. Paragraph 3(i)(iii)--Ease of Performance of Exercises
Subsection (iii) of Paragraph 3(i) charges Respondent with representing that the exercises to be used in connection with the Sauna Belt "are easily performed by any user, regardless of his age, health or physical condition". The Hearing Examiner interpreted this allegation as being based on references in the advertisement to the exercises being "magic" and as being capable of being performed in "just a few minutes". He held that such statements did not support the charge in the complaint. He noted that the advertisement referred to the Sauna Belt as being "specially designed to provide resistance to the exercise movements" and stated that:
" . . . the very necessity of doing exercises . . . is an indication to persons with debilitating diseases or conditions . . . that (1) the performance of the exercises will require the exertion of varying degrees of effort, and (2) some of the activity required of them may test or exceed their capacities". (I.D. at 8-9)
The Hearing Examiner concluded that while the advertisement might be construed as representing that the following of Respondent's plan "will not present any undue difficulty for the average person who wants to decrease the girth of his waistline, the advertisement does not contain the all-encompassing representation set forth in the language of the complaint" (emphasis supplied).
In my opinion Respondent's advertisement is subject to the interpretation placed upon it by the complaint and would be so interpreted by a substantial segment of the purchasing public. The reference in the advertisement to the "two magic waistline reducing exercises" and to the fact that such exercises "will take just a few minutes" would lead many readers to infer that the exercises require minimal effort and are capable of being performed by anyone.8/ The impression created by these specific references to the exercises is reinforced by the overall impression sought to be created in the advertisements concerning the ease of performance and complete lack of effort involved in Respondent's program as a whole. Thus, the advertisement refers to the Sauna Belt itself as "a marvel of ease and comfort" and as "give ing results in just a few minutes a day." The program is described as involving merely the putting of the belt in place, the performing of the two "magic" exercises, which take "just a few minutes", "relax ing " for another twenty minutes with the belt in place; "that is all there is to it", and when the belt is removed "viola] . . . the excess inches are already beginning to disappear". From this description one would hardly infer that it is necessary to be in at least average health or condition to participate in the program.
I do not agree with the Hearing Examiner's interpretation that the reference in the advertisement to the belt as providing "resistance to the movements" and to the need for the performance of exercises, would alert the reader to the fact that persons with various diseases or physical conditions may have difficulty in performing the exercises. The reference to the belt as providing "resistance" is not made in the context of its creating a counter-pressure requiring the exertion of effort in the performance of the exercises, but as a positive factor which actually helps in the performance of the exercise program. Thus, the reference to the belt as providing pressure is made in the context of its providing "heat and massage to every area of your waist" and as providing "a snug, comfortable feeling of warmth and support throughout your waistline and lower back." Nor does the mere reference to the need to perform exercises, in the context in which it appears, suggest that only persons of average condition will be able to perform them. The program, as described, appears to be so simple and effortless that there would be many older persons and persons with various infirmities who would believe that they are capable of performing the exercises and participating in the program. In fact, several of Respondent's customer-witnesses were persons with severe physical infirmities. It is unnecessary at this point to consider their testimony as to whether they did, in fact, experience difficulty in performing the exercises. However, the fact that they saw fit to purchase the Sauna Belt would suggest that they did not interpret the advertisement as indicating that performance of the exercises "may test or exceed their capacities" (I.D. at 9).
3. Paragraph 3(i)(iv)--Safety of Performance
Subsection (iv) of Paragraph 3(i) of the complaint alleges Respondent with representing in its advertising that the exercises to be used in conjunction with the Sauna Belt "may be safely performed by any user, regardless of his age, health or physical condition." In holding that Complainant had failed to establish that Respondent had made the representation in question, the Hearing Examiner stated in his Initial Decision that his conclusions regarding the charge of "ease" of performance of the exercises were "applicable to a considerable degree to the charge regarding the safety of following Respondent's plan" (I.D. at 9). He held, however, that "it might be fair to interpret Respondent's advertising matter as representing that for the average individual, no undue health hazard will be undertaken by following the plan" (emphasis supplied).
In my opinion Respondent's advertisement is reasonably subject to the interpretation placed upon it in Paragraph 3(i)(iv) of the compliant, and should not be interpreted as having the narrower meaning suggested by the Hearing Examiner. Although the word "safe" itself is not used, the reference to the ease and brevity of the exercises, and the entire wording of the advertisement, would lead many readers to believe that the exercises are capable of being safely performed irrespective of their age and state of health. There is nothing in the advertisement to suggest that the representation applies only to the average individual or to an individual in an average state of health.
Respondent argues that the most that can be inferred from the advertisement is "relative", rather than "absolute" safety. It contends that there is no basis for inferring "absolute safety (for any person, regardless of any physical disability) from advertising which fails to admonish the reader as to the marginal risk of a particular exercise." It cites in this connection various exercise products: " B bicycles, football helmets, saddles, bowling balls, barbells, tennis rackets, etc. which are commonly advertised and sold with no admonition as to the hazards they pose for certain persons."
The difficulty with Respondent's argument is that its Sauna Belt is not sold as a product akin to the various sporting products cited by it, with which the public is generally familiar and which it purchases with knowledge of the risks commonly associated with such products. As heretofore noted, Respondent's Sauna Belt is presented as a "marvel of ease and comfort" and the "magic" exercises as involving "just a few minutes". The impression which the reader gets is that of a program involving so little time and effort that he would have no reason to question its safety. He certainly would not associate it with the risks inherent in participation in many sporting activities.
C. The Alleged Falsity of the Representations
Up to this point consideration has been given to Complainant's exceptions based on the Hearing Examiner's failure to find that Respondent had made certain of the representations charged in the complaint, either by dismissing various allegations at the close of the case-in-chief or by failing to find them in his Initial Decision. Consideration is now given to the remaining exceptions, which are based on the Hearing Examiner's failure to find that the representations which he did find to have been made were materially false.
The Hearing Examiner considered the remaining representations as falling within three categories (a) those relating to the "efficacy" of Respondent's plan (b) those relating to its "safety", and (c) those relating to its "newness". With respect to the "newness" representations, the Hearing Examiner found that, to the extent the allegations of the complaint pertaining thereto were material, the representations made were true. With respect to the efficacy and safety representations the Hearing Examiner, after noting the "wide divergence in the medical testimony" pertaining to these issues, found that Complainant had failed to sustain the burden of proof as to the falsity thereof.
Complainant's exceptions based on the Hearing Examiner's failure to find material misrepresentation, involve principally his purported holding that the divergence in the medical testimony precludes a finding as to the material falsity of the efficacy and safety representations. Before considering whether the record does, as Complainant contends, establish the falsity of these representations, it is appropriate to consider the legal criteria which are applicable to the resolution of this issue, a matter that has been heretofore briefly alluded to.
It is Respondent's position that, on the issues of efficacy and safety, Complainant has the burden of establishing that "there exists a universality of scientific opinion supporting Complainant's position, and that such opinion is grounded on reliable experience" (RRB at 64). It cites in this connection American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 105-6 (1902), which purportedly established the principle; and Reilly v. Pinkus, 338 U.S. 269, 274 (1949), and Atlanta Corp. v. Olesen, 124 F.Supp. 482 (S.D. Cal., 1954), which purportedly reaffirmed it. Its reliance on these cases is, in my opinion, misplaced for two reasons. Firstly, because they do not stand for the proposition that there must be a universality of medical opinion supporting Complainant's position and that the existence of contrary scientific opinion automatically precludes a finding of misrepresentation. Secondly, and more importantly, the cases are no longer applicable for the proposition cited since they involve the criteria for determining the issue of fraud or intent to deceive which, as previously noted, is no longer a necessary element of the offense since the 1968 amendment of the Postal statute (see pp. 9-12, supra).
Regarding the first of these two considerations, it may be noted that Respondent's citation from Reilly v. Pinkus, which purportedly reaffirmed the McAnnulty holding, begins with the Court's statement:
"But we do accept the McAnnulty decision . . . when the charges concern medical practices in fields where knowledge has not yet been crystalized in the crucible of experience."
However, prior to the portion of the decision quoted by Respondent, the Court referred to McAnnulty as involving a situation where "there were two widely held schools of opinion" (emphasis added), and not a mere divergence of opinion. The Court also expressed its disagreement with the position of the Respondent there that:
". . . the McAnnulty case bars a finding of fraud whenever there is the least conflict of opinion as to curative effects of a remedy. The contention seems to be that even the testimony of the most experienced medical experts can never rise above a mere 'opinion' unless the expert has made actual tests of the drug to determine its effects. . . ." 338 U.S. at 273-74.
Addressing itself to this contention, the Court stated:
"The McAnnulty holding did not go so far. We do not understand or accept it as prescribing an inexorable rule that automatically bars reliance of the fact-finding tribunal upon informed medical judgment every time medical witnesses can be produced who blindly adhere to a curative technique thoroughly discredited by reliable scientific experiences." 338 U.S. at 274.
Regarding the second consideration above stated, it is clear from both McAnnulty and Reilly v. Pinkus, that the conflict of opinion issue was a relevant consideration there because of the need to establish fraud or intent to deceive under the then existing Postal statute. The Court in McAnnulty, referring to a situation where a difference of medical opinion existed regarding a particular method of treatment, stated that "the efficacy of any special method of treatment is certainly not a matter for the decision of the Postmaster General within these statutes relative to fraud". 187 U.S. at 105 (emphasis added). In accepting McAnnulty (as reinterpreted by it) the Court in Reilly v. Pinkus referred to the McAnnulty decision as a "wholesome limitation upon findings of fraud under the mail statutes". 338 U.S. at 274 (emphasis added).9/ The Court further referred to the McAnnulty case as involving a situation where "there were two widely held schools of opinion as to whether the mind could affect bodily diseases, and . . . scientific knowledge had not advanced to the point where an actual intent to deceive could be attributed to one who asserted either opinion." 338 U.S. at 273 (emphasis added). The existence of a universality of medical opinion was alluded to in Reilly v. Pinkus, not as a prerequisite for a finding of misrepresentation, but as bearing on the question of fraudulent intent. Even on the latter issue it was not referred to as a requirement for showing fraud, but in the negative context that an inference of fraud based on the purported existence of a universality of opinion "might be lessened" by a showing of contrary medical opinion, the Court stating:
"Proof of fraudulent purposes is essential--an 'actual intent to deceive.' See Seven Cases v. United States, 239 U.S. 510, 517. Consequently fraud under the mail statutes is not established merely by proving an incorrect statement was made. An intent to deceive might be inferred from the universality of scientific opinion that advertising representations are wholly unsupportable; conversely, the likelihood of such inference might be lessened should cross-examination cause a witness to admit that the scientific belief was less universal than he had first testified." 338 U.S. at 276 (emphasis added).
Under the rationale of McAnnulty and Reilly v. Pinkus, the existence of substantial medical or scientific opinion contrary to that of the expert witnesses testifying for the Post Office was considered to preclude a finding of "an actual intent to deceive" and hence of a finding that the representation was fraudulent. However, since the 1968 amendment of the statute the making of a false representation is a violation of law, without regard to an intent to deceive or fraud. Hence, the mere existence of a divergence of medical opinion does not necessarily preclude a finding that a representation is false. This not to say that the existence of a divergence in medical opinion no longer has any relevance. It still has a bearing on the issue of whether the representation is, in fact, false. However, it is not an automatic bar to a finding of a violation of the law, as was considered to be the case prior to the statute's amendment, nor does it foreclose the fact-finding official from evaluating the conflicting opinions to determine which is more tenable.
Turning to the specific portion of the Initial Decision to which Complainant takes exception, the basis of the Chief Hearing Examiner's conclusion that Complainant had failed to carry its burden of proof as to falsity appears to rest on his holding that:
"It is not within the province of the Hearing Examiner to determine which among the divergent, but equally persuasive, opinions of qualified physicians and scientists are correct. (Reilly v. Pinkus, 338 U.S. 269 (1929); Atlanta Corp. v. Olesen, 124 F.Supp. 482 (D.C.S.C. Cal., 1954)". (I.D. at 27).
The Hearing Examiner's conclusion in this regard is somewhat ambiguous. If the divergent opinions of the expert witnesses are, as he indicated, "equally persuasive", then it follows that Complainant has failed to sustain the burden of proof, which would be a valid ground for concluding that Complainant had not established a case of misrepresentation. However, the Hearing Examiner's reference to the Reilly v. Pinkus and Atlanta Corp. cases (which were cited to him in Respondent's proposed findings, along with the McAnnulty decision), suggests that he may have felt he was precluded from finding a violation of the statute merely because of the substantial divergence of medical opinion. As heretofore noted, prior to the 1968 amendment of the statute a substantial divergence in medical opinion might have barred a finding of an intent to deceive, and hence of fraud, on the part of a Respondent who contended that he was relying on a contrary, albeit not the prevailing, medical opinion in making certain representations.
However, since the 1968 amendment the Hearing Examiner is no longer precluded from evaluating divergent medical opinions and finding that the one urged by the Postal Service witnesses is the correct one, and that the representations made are therefore false, without regard to Respondent's good faith in relying on contrary medical opinion. With these principles in mind, consideration is now given to Complainant's exceptions to determine whether Complainant has sustained the burden of proof with respect to establishing the material falsity of the representations found to have been made by Respondent. 1. The Issue of Efficacy
The Hearing Examiner found that Respondent did make a number of the representations charged in Paragraph 3 of the complaint concerning the efficacy of Respondent's product and plan, viz., those alleged in Subsections (i)-(iii) of Subparagraph (b), and also in Subparagraph (g). The representations alleged in Subparagraph (b), Subsections (i)-(iii), are that the Sauna Belt when used in conjunction with the waistline reducing exercises will effect the following results:
"(i) a loss of up to 3 inches from the user's waistline within 3 days;
(ii) a loss of 2 inches from the user's waistline and 1 1/2 inches from the tummy when worn 'for about 30 minutes one afternoon';
(iii) a loss of 'nearly 5 full inches' in the waistline when worn for a two-week period".
The representation alleged in Subparagraph (g) is that "the attained desired girth may be retained merely 'by using the belt about twice a month'". Before considering the question of whether the Hearing Examiner correctly decided the issue as to the falsity of these representations, reference should be made to a threshold question concerning the precise nature of the efficacy representation made by Respondent.
In its reply brief (RRB at 26) Respondent argues that its advertising should be construed as making "qualified claims" of efficacy, viz., that:
(a) "Many, but not all users of the belt will lose one to three inches from their waistline in three days.
(b) Some persons will lose inches from the waistline and abdomen in one session with the belt.
(c) Some persons will lose four to five inches from their waistline in two weeks."
The short answer to Respondent's argument in this respect is that the Hearing Examiner did not so find and it filed no exceptions to his failure to so find. What he did find was that:
"In regard to the other representations previously listed as remaining in the compliant after those dismissed, with one exception . . . when the statements in the advertising material on which the complaint is based are reasonably construed, those statements do lead to the understanding expressed in the charges set forth in the complaint." (I.D. at 10).
Among the representations specifically referred to by the Hearing Examiner as having been made by Respondent were those alleged in paragraphs 3(b)(i)-(iii) and 3(g) of the complaint.
I interpret the paragraph in question of the complaint as alleging, in substance, that Respondent represents that all, or substantially all, users could expect to achieve the indicated results, rather than that "many" or "some" users will do so. It must be assumed that this is how the Hearing Examiner interpreted these allegations since in Respondent's proposed findings it made precisely the same contention as it is now presenting in its appeal brief (Respondent's Proposed Finding, par. 5 a.b.c.), and the Hearing Examiner did not accept such proposed findings.
Even if Respondent's failure to except to the Hearing Examiner's findings regarding this issue is disregarded, I find the position urged by it to be lacking in merit. Respondent's position as to the "qualified" nature of the claims made concerning the efficacy of its plan is based on the testimony of Dr. Julian Boyd, a professional linguist, and upon a survey conducted among 100 persons in the downtown San Francisco area (RRB at 23-26). In my opinion the evidence relied upon by Respondent is insufficient to support its position concerning the "qualified" nature of the advertising representations in question.
Dr. Boyd's opinion that Respondent's advertising made only "qualified" claims concerning the amount of waistline reduction that could be achieved was based on various qualifying language purportedly used in the advertisement. Thus, he cited the reference to the "guarantee" as being "a conditional statement," i.e., as implying that not everyone could expect to achieve a 1 to 3 inch reduction in girth within 3 days (Tr. 1128). He also cited the phrase "many, many people lose" girth, as implying that there will be some who will not do so (Tr. 1131).
Aside from a question as to the appropriateness of considering opinion evidence on one of the basic issues which the cognizant agency must decide and which lies within its own expertise,10/ Dr. Boyd's testimony fails to support the Respondent's position concerning the limited nature of the representations made by it. In the first place, he testified as to the impression which the qualifying language made on himself as an expert philologist, and not as to its impression on the general public, a matter which he admitted was not "within my realm" of expertise (Tr. 1126). Secondly, the so-called qualifying language which he cited fails to support his thesis. Thus, the reference to "many, many people" as implying that there are some who will not lose girth, fails to take into account the full text of the advertisement in this respect. The language cited is:
"Many, many people lose an inch or more the very first day they use the belt. There are those who have lost as many as three inches on their waistline from just one sessions with this magic belt." Ex. C-6-A (emphasis added).
After referring to possible variations in "speed of inch loss" due to the individual's "particular metabolism", the portion of the advertisement from which the above is taken continues with the following assurance:
"You must lose from 1 to 3 inches from your waistline in just 3 days or you may return the belt and your entire purchase price will be refunded immediately." (emphasis added).
What this section of the advertisement is saying is that "many, many" people will lose an inch or more the first day and that some will lose up to 3 inches the first time, but that everyone who uses the belt may expect to lose from 1 to 3 inches by the third day.
Dr. Boyd's reference to the guarantee as qualifying this representation is incredible. The ordinary man in the street looks to a guarantee as an assurance that a promise made will be fulfilled. While he may get some comfort from knowing that if it doesn't happen he may get some money back, this is a secondary consideration in his purchase of the product. He interprets the guarantee as saying to him in effect: "We are so sure this will happen that we are willing to back it up with a money-back guarantee."11/ The individual who buys the product does so because he expects the particular result to happen, and not because the guarantee is telling him it may not happen.
The survey evidence relied upon by Respondent consists of a poll of 100 persons selected from among persons interviewed on the streets of downtown San Francisco who had read one of the magazines in which the advertisement had appeared. Of these, 89 purportedly responded in the affirmative to the question: "Did the advertisement claim or represent that the effectiveness of the belt will vary with individuals?" (Ex. R-23, Table 3). In my opinion, the survey has marginal, if any, relevance to the issue here under consideration. There is no question but that variations in results are indicated in the advertisement, particularly those relative to the speed at which the loss of girth will be achieved, but that is not the issue here. The issue is whether the advertisement
"We are so convinced that the Sauna Belt is the fastest, surest, most convenient waistline reducer ever discovered that we will offer this unconditional Money Back Guarantee: Man or woman, i8f your waistline is not 1 to 3 inches smaller after using the Sauna Belt for only 3 days, you may simply return the belt to us and your money will be refunded promptly and without question." contains assurances that despite certain variations in speed or amount of loss all, or substantially all, individuals will obtain certain minimal results. This it does, as the Hearing Examiner apparently found.
I now turn to a consideration of whether the representations found by the Hearing Examiner to have been made concerning the efficacy of Respondent's plan in the reduction of girth are false. The question presented is whether the record establishes that not all, or substantially all, users of the belt will achieve the reductions in girth promised in Respondent's advertisements.
The issue of efficacy is presented in the Initial Decision principally in terms of certain tests which were conducted by each of the parties "to determine the general question of the efficacy of Respondent's plan" (I.D. at 20). The Initial Decision sets forth a reasonably accurate summary of the two groups of tests and refers to the testimony of an expert statistician called by Respondent, who testified that the tests conducted on behalf of Respondent were less subject to objection, in terms of what he considered to be the applicable criteria, than were the tests conducted on behalf of Complainant. Reference is also made in the Initial Decision to the testimony of certain users and lay witnesses, and to a study conducted by a co-owner of Respondent, which testimony and evidence the Hearing Examiner apparently regarded as of doubtful competency or validity, in terms of the criteria for appraising such evidence applied by Respondent's expert statistician. Apparently based on the divergence in the medical testimony regarding the efficacy of Respondent's plan, the Hearing Examiner concluded that it was "not within the province of the Hearing Examiner to determine which among the divergent, but equally persuasive, opinions of qualified physicians and scientists are correct."
In its appeal brief, Respondent has framed the issue of efficacy in terms of the two groups of tests referred to in the Initial Decision. Although citing other evidence as corroborative, it is Respondent's position, basically, that the tests conducted on its behalf are the ones that should be accepted as valid, and that the tests conducted by one of Complainant's medical witnesses suffer from various infirmities in procedure and content. Counsel for Complainant-Appellant, on the other hand, minimizes the importance of the test evidence. He places principal emphasis on the testimony of his medical witnesses, which he contends establishes that Respondent's program for girth control is contrary to "the consensus of informed medical and scientific opinion." He refers to the tests conducted by Complainant's medical witness as merely corroborative of the medical witnesses' expert testimony, and argues that the tests conducted on behalf of Respondent fail to rebut Complainant's prima facie case.
In my opinion, the issue of efficacy cannot be resolved simply on the basis of the two sets of tests, and a determination of which one is the more valid scientifically. The issue is broader than that posed by Respondent, and possibly broader than that considered by the Hearing Examiner. Furthermore, even accepting Respondent's tests as valid, the record establishes the material falsity of Respondent's efficacy representations.
As noted in the Initial Decision, Respondent's plan for waist or girth reduction involves the performance of certain exercises while wearing the Sauna Belt in an inflated condition. Respondent's advertisement specifically states that such reduction will be achieved "without the need for any weight loss." According to both of Complainant's medical witnesses, it is the consensus of medical opinion that there can be no reduction in the waistline without a reduction of body weight. Such a reduction in body weight is accomplished principally by a reduction of caloric intake, and cannot be achieved by normal exercise, massage or compression. The testimony of Complainant's medical witnesses further establishes that the performance of the exercises prescribed by Respondent, with or without the wearing of the Sauna Belt, will not result in any substantial change in waistline measurements (Tr. 424-26, 430, 445-46, 450-53, 534-37, 539-40).
One of Complainant's medical witnesses, Dr. Sedgewick Mead, conducted a test on himself wearing the Sauna Belt and performing the prescribed exercises. There was no resultant change in his waistline measurements (Tr. 460-61). The other medical witness testifying on behalf of the Complainant, Dr. Ralph Waldo Weilerstein, conducted a test on 20 subjects, who wore the Sauna Belt and performed the prescribed exercises under his supervision. As described in the Initial Decision, there was no significant reduction in the waistline achieved by any of the subjects (I.D. at 21-2). Such minor reductions as were achieved (less than 1 inch) may be ascribed to normal variations in a person's girth at various times of the day (Tr. 557, 562).
Aside from the results of the tests conducted by two experts, Respondent offered no affirmative medical evidence that a reduction in waistline may be achieved by exercise or by exercise in conjunction with compression. The principal evidence relied upon by Respondent concerning the nature of medical opinion on the subject of girth reduction was the negative testimony of Dr. Linfoot who when asked his opinion, based on his medical knowledge, concerning the effect of the Sauna Belt program on girth reduction, testified:
"Well, having no special, having done no special studies, I would have to speculate about this. I know of no data--and I follow the literature in this pretty well in related areas--I know of no data that such an approach would not reduce the girth. Intuitively, I can think of no reason why such a program would not affect the girth." (Tr. 801).
Dr. Linfoot further indicated that "perhaps there would be two areas where this loss of girth could be accomplished." The first "would have to do, perhaps, directly with the exercises themselves where muscle tone is improved by exercises." The second had to do with certain processes involving "substances in the blood that localize fat", and he stated that "it is conceivable that some local factors could increase fat mobilization." (Tr. 802).
The likelihood that girth reduction could be accomplished through an improvement in "muscle tone" resulting from the performance of the exercises here involved would appear to be negatived by Dr. Linfoot's testimony on cross-examination that he regarded such exercises as "similar to other mild exercises." (Tr. 807). He also conceded that he "was speculating about the fat mobilization" as "a possibility" in causing a reduction in girth (Tr. 808). He conceded that girth reduction is best achieved through the loss of weight resulting from eating less, combined with exercises. While claiming that "spot reduction" of particular portions of the anatomy was feasible, without loss of weight, the only example he cited was the reduction of particular areas of the body by a binding process which caused a re-distribution of fluid in the body. However, he conceded that in the latter situation when the constriction was removed, the fluid would tend to return to the place from which it had been displaced (Tr. 816-17).
I find Dr. Linfoot's testimony singularly unpersuasive. Although claiming he could give no affirmative opinion on the efficacy of Respondent's product because he had "done no special studies" (Tr. 801), his testimony reveals that he did perform the prescribed exercises wearing the Sauna Belt. Yet he made no effort to take his measurements to determine whether he had, in fact, lost any girth. His explanation for not doing so was that he was asked to do the program merely as a basis for testifying about the safety aspect, rather than its efficacy (Tr. 822-23). Respondent's effort to limit Dr. Linfoot's testimony on the issue of efficacy to the negative opinion expressed by him, when it was within the doctor's power to actually determine the validity of such opinion, seriously impairs the persuasiveness of his opinion testimony. Moreover, Dr. Linfoot's efforts to explain the basis of his opinion were characterized by such uncertainty as to the factors in Respondent's program which "perhaps", or which it was "conceivable", could result in girth reduction, that I can give his opinion very little weight.
As heretofore noted, Respondent rests its case largely on the evidence of the tests conducted on its behalf. It contends that such tests were more valid, scientifically, than those conducted on behalf of Complainant by Dr. Weilerstein. Its attack on Dr. Weilerstein's tests rests principally on the method used by him in measuring his subjects, as compared to that used in Respondent's tests. There were two principal differences between the two groups of tests in this regard. One involved the measuring device used and the other involved the condition of the waistline being measured. Dr. Weilerstein used an ordinary fiberglass tape measure to measure his subjects. To this he added a chatillon scale, as described in the Initial Decision, with a pressure of one pound to make the tape measure sufficiently taut. The tape measure was applied to the subject's waistline after the subject had been instructed to suck in his breath and pull in his abdomen. In the tests deviced by Dr. Ralston for Respondent, an ordinary adhesive tape was applied around the waist and was later removed and measured. The adhesive tape was applied with the subject standing in a relaxed position and breathing normally.
Respondent attacks Dr. Weilerstein's methodology mainly on the grounds that (a) the use of a measuring device with numbers on it detracts from its objectivity, and (b) the measuring of the waistline with the abdomen drawn in does not permit reproducible results. Complainant attacks Respondent's test on the grounds that measuring the subject in a relaxed condition involves measurements in different stages of the breathing cycle which, according to Dr. Weilerstein's testimony, can result in differences of as much as one inch (Tr. 636, 640). Complainant suggests that "the gross disparity" between the results obtained in the two sets of tests conducted on behalf of Respondent by the two expert witnesses is indicative of the lack of reliability of Respondent's tests.
After a careful evaluation of Respondent's criticism of Dr. Weilerstein's tests, I am not persuaded that such tests suffer from any basic infirmity. I find no reason to question Dr. Weilerstein's objectivity and lack of bias, based on the fact that he used a tape measure containing numbers on it. The testimony of one of Respondent's experts, Dr. Close, reveals that he normally uses a steel tape measure in making bodily measurements, and that at most the use of such a device may result in a discrepancy of one-half to five-eighths of an inch in measurements as compared to the adhesive tape which he used during the tests (Tr. 1062-63). Dr. Ralston, the research physiologist who actually devised Respondent's tests, used an ordinary tape measure in the early phase of his tests, in which the subjects purportedly showed an average reduction in girth of 2.17 inches. This compares to a reduction of 1.81 inches for the subjects who were measured by the adhesive tape method, with a difference of less than one-half inch between the two methods used. Measurements in the tests conducted by Respondent's official on various subjects at its place of business were all made with an ordinary tape measure. Since these generally purported to record a reduction in girth, it is clear that the use of such traditional measuring devices is not basically inimical to reflecting reductions in girth, if such in fact occur.
I can likewise find nothing basically defective in Dr. Weilerstein's method of measuring his subjects with the abdomen pulled in. Respondent's principal attack on this method is based on an alleged inconsistency in Dr. Weilerstein's testimony concerning the methodology which he used in measuring subjects in connection with another device several years previously. Respondent interprets Dr. Weilerstein's testimony as being to the effect that he developed his current methodology in the earlier tests, which were conducted with a Dr. Austin. Respondent offered evidence to show that Dr. Austin's tests involved the measuring of the subject with the stomach relaxed, rather than holding in the abdomen. I do not interpret Dr. Weilerstein's testimony as being to the effect that he used the pulled-in abdomen technique in the earlier tests, but rather that he developed the technique as a result of the fact that the method used in the earlier tests had proven not to be satisfactory. However, even assuming Respondent's interpretation of his testimony is correct, and that Dr. Weilerstein was mistaken as to whether the technique he currently used was actually used in his earlier tests, this does not destroy his credibility, nor justify the conclusion that the technique he used in the current tests was not an appropriate method for measuring the waistline.
Turning to Respondent's own tests, there are, as noted by the Complainant, significant variations in the results achieved by the two experts who conducted them. There were 19 subjects who performed the recommended exercises for a period of 3 days while wearing the Sauna Belt, and who were measured in accordance with Dr. Ralston's recommended method. Of the 10 subjects from the San Francisco area who were supervised by Dr. Ralston, 3 lost less than 1 inch in girth and 3 others barely exceeded 1 inch (viz., 1.05, 1.07, 1.17). The average loss for the 10 individuals tested by Dr. Ralston was 1.11 inches (Ex. R-16, App. II, Table 1).12/ Of the 9 subjects in the Los Angeles area supervised by Dr. Close, one lost exactly 1 inch in girth, and the balance all lost over 2 inches and some exceeded 3 inches, with the average being 2.58 inches.
This significant variation in the results achieved in the two groups of individuals tested suggests that factors other than Respondent's girth reduction program may have accounted for the variations in the reductions in girth achieved. It may be noted, for example, that of the 16 subjects who purportedly achieved a reduction in girth of 1 inche or more, 4 also experienced some reduction in weight. It may also be noted that of the 6 individuals included in Dr. Ralston's original test (in which the individuals' waists were measured by a tape measure) all of the persons purportedly achieved reductions in girth of over 1 inch, with an average reduction of 2.17 inches, but 5 of the 6 also underwent a loss of weight (Ex. R-16, App. II, Table 2). It is possible that there were other reductions in weight than those above indicated and that some of the weight figures are not accurate since, while Dr. Ralston took the waist measurements himself, he admittedly did not weigh all of the subjects but allowed some of them to do so (Tr. 1028-30). Dr. Ralston conceded that "there is a possibility the weight entered into it", i.e., the results achieved (Tr. 1026).
Viewing Respondent's tests on an overall basis, a number of serious questions appear which are not adequately explained in the record. For example, it is clear that the performance of the exercises themselves, without wearing the belt, has no appreciable effect in girth reduction. Thus, of the 7 control subjects who performed the exercises without wearing the belt, only one lost as much as 1 inch in girth, and he also experienced a loss of weight during the period of the test. Of the 6 subjects who merely wore the belt for 3 days, but performed no exercises, none lost as much as 1 inch in girth (Ex. R-16, App. II, Table 1, Groups 2 and 3). Since the exercises themselves produced no significant loss of girth and the wearing of the belt alone did not do so, Dr. Ralston had some difficulty in explaining how the combination of the two could cause some of the results purportedly achieved in the tests devised by him. He agreed that a reduction in caloric intake would take off weight and reduce the waistline (Tr. 992). However, he contended that even if caloric intake was constant, a loss in girth could be achieved through exercise (Tr. 979). At the same time, he conceded that Respondent's exercise program, which he claimed was equivalent to light industrial work in terms of amount of energy expended, was not designed to cause a loss of weight (Tr. 991). While he claimed that the tests indicated that there was "some kind of re-distribution of fat which is not dependent on weight changes", he admitted that he had no "solid physiological evidence at this point" (Tr. 958) on the subject, and conceded that "as a scientific paper there would be a great deal more work you would want to do in the way of ironing out some of the things about weights" in connection with the study he had conducted (Tr. 1047).
In my opinion the tests conducted on behalf of Respondent do not rise to the level of overcoming the medical evidence offered by Complainant, which establishes that without a reduction in weight, generally resulting from a reduction in calories, there can be no significant reduction in girth. However, even accepting Respondent's tests at face value, they tend to support the complaint. As heretofore found, Respondent has represented that all or substantially all users of the belt program will achieve a reduction in girth of at least 1 to 3 inches within 3 days, without having to lose weight. The tests conducted by Dr. Ralston on 10 subjects, using the procedure prescribed by him, discloses that 3 (or 30% of those tested) did not achieve the minimum loss of girth promised. Moreover, of those who purportedly lost the promised amount of girth, 2 (or 20% of those tested) also experienced a loss of weight, which could account for all or part of the reduction in girth. Of Dr. Close's 9 subjects, while all purportedly lost 1 inch or more in girth, in 2 instances (or 22% of those tested by him) this was accompanied by a loss in weight.
In addition to the test evidence offered through Drs. Ralston and Close, Respondent also relies on the testimony of a number of users of Respondent's device and on certain tests conducted by Respondent itself. The Hearing Examiner found the user-testimony of dubious value and I join in his conclusion in this regard. Moreover, the evidence discloses that in a number of instances there was a loss of weight involved, which could account for the reduction in girth, or the record discloses that the users failed to compare their weight before or after using the program. In the latter instances, of course, there is no way of determining whether the reduction in girth was accomplished through a loss of weight, rather than through Respondent's Sauna Belt program.
The results of the tests made by Respondent's co-owner on 531 female patrons of reducing salons owned by her were characterized by the Hearing Examiner as "impressive", but he concluded that they were of dubious reliability. I concur in this conclusion. Although purporting to cover only a single bout of exercises wearing the belt, there is evidence that in a number of instances the subjects engaged in the exercise program over more than 1 day. At least
10% of those tested, according to Respondent's own figures, did not achieve the minimum 1-inch reduction. I also note that despite the claim for the effectiveness of Respondent's Sauna Belt program and the lack of need for weight reduction in accomplishing the reduction in girth, the reducing program in the salons conducted by Respondent's owners involves dieting as a regular part of the program (Tr. 764). One of Respondent's co-owners conceded that exercise alone is not as effective as diet and exercise (Tr. 729). Nevertheless, he claimed that it was possible to change the circumference of the waistline, without changing body weight (Tr. 730). He based this on his experience with the application of Ace bandages to an injured knee resulting in a reduction in circumference (Tr. 735). This was later applied to bandaging the waistline of women in the salons, combined with an exercise program, which gave rise to the development of the Sauna Belt. In the light of the contrary medical evidence and the lack of scientific basis for Respondent's official's opinion, I find such testimony to be wholly unpersuasive.
In addition to the issue discussed above involving the question of whether the users of Respondent's belt can achieve certain specific losses in girth by following the program, there is also involved the efficacy issue alleged in Paragraph 3(g) of the complaint, viz., whether the attained desired reduction in girth may be retained merely "by using the belt about twice a month." Complainant contends that even if the tests conducted by Respondent are considered valid as establishing that specific losses in girth may be achieved, they fail to establish that such loss may be retained merely by using the belt about twice a month.
Although the Hearing Examiner found that Respondent did make the representation alleged in Paragraph 3(g) of the complaint, he made no specific finding concerning its truth or falsity, but considered it on an overall basis in connection with the test evidence as to the efficacy of Respondent's product. He concluded, as previously noted, that the scientific and medical evidence on the issue of efficacy were equally persuasive and that Complainant had not sustained the burden of proof. However, as noted by Complainant, the scientific evidence offered by Respondent involved the tests conducted over a 3-day period and in some instances during a 6-day period. No test evidence was offered by
Respondent that the losses in girth allegedly achieved in the tests could be retained merely by using the belt about twice a month.
The medical opinion evidence offered by Complainant establishes that even if Respondent's program enabled a user to achieve a loss of 1 to 3 inches, or some other specific amount, during a 3-day period, such losses cannot be retained merely by using the belt about twice a month. (Tr. 432, 542). The only countervailing evidence offered by Respondent was that of several purchasers of Respondent's belt who claimed that they had used the belt several times a month after the initial loss of girth, and were able to retain such loss. The Hearing Examiner characterized the testimony of such lay witnesses, in general, as being of "doubtful competency" and the undersigned concurs in this conclusion. Furthermore, the testimony of such witnesses discloses that in most instances the witnesses experienced a loss in weight during the period following their loss of girth, which may well have accounted for any loss or continued loss of girth, without reference to the use of the belt or any exercises performed in connection therewith (Tr. 619, 1108, 1261). Moreover, Respondent's own tests disclose that the use of the belt by itself did not result in any loss of girth. It is difficult to conceive, therefore, how any loss of girth which might possibly have been achieved by the belt and exercise program could be retained by merely wearing the belt twice a month thereafter.
2. The Issue of Safety
Resolution of the question of whether Respondent has misrepresented the safety of its device is dependent on a resolution of the threshold question of what it is that Respondent has represented concerning the safety thereof. As heretofore noted, the complaint in Paragraph 3(i), Subsection (iv) thereof, charges Respondent with having represented that the performance of the prescribed exercises in conjunction with the wearing of the Sauna Belt is safe for "any user, regardless of his age, health, or physical condition". The Hearing Examiner found that Respondent did not make the representation charged, but rather that "for the average person" its plan presents no "undue chance of injury or adverse effect on his health" (I.D. at 27). As heretofore indicated, I do not concur in the Hearing Examiner's finding and have found that Respondent does make the safety representation alleged in complaint (supra at 31). The issue presented, therefore, is whether Respondent's plan is safe for all users and not merely for the "average user". Furthermore, this issue must be determined on the basis of whether there are actual dangers presented to users and not merely whether there is any "undue" chance of injury or adverse effect on his the user's health."
In determining that Complainant had failed to sustain the burden of proof on the issue of safety, the Hearing Examiner took note of the "wide divergence in the medical testimony in regard to the risk involved in engaging in Respondent's plan" and concluded, as he did on the efficacy issue, that it was "not within the province of the Hearing Examiner to determine which among the divergent, but equally persuasive, opinions of qualified physicians and scientists are correct." In my opinion, in terms of the safety issue posed by the complaint, Complainant has adequately sustained the burden of proof, and the record does establish that the representation made by Respondent is materially false as a matter of fact.
Although the Initial Decision refers to a "wide divergence in the medical testimony in regard to the risk involved in engaging in Respondent's plan", the record establishes that there is, in fact, a considerable area of agreement between the two groups of experts. Such differences as exist in the testimony involve more a difference in degree and emphasis than with regard to the fact that significant dangers do exist. While several of Respondent's experts did, as noted in the Initial Decision, express the opinion that there was "no medically unacceptable risk or danger involved in recommending the exercises in Respondent's plan to the general public" (I.D. at 18), their testimony as to the actual dangers presented to users renders their opinions questionable, particularly if the issue is viewed as being one of safety for the public as a whole, and not merely for the average user.
Despite certain generalized expressions of opinion by Respondent's witnesses concerning the safety of Respondent's plan, their testimony establishes the existence of elements of real danger and lack of safety for many users from the use of Respondent's plan. Thus, Dr. Close, an orthopedic surgeon, after expressing the opinion that "the belt is safe, presents no hazard to anyone who would be willig to use it" (Tr. 87), clarified this to mean that it would be "quite safe" for "a normal person with nonpathology" (Tr. 88). However, as indicated in the Initial Decision (Finding No. 15, at 16), Dr. Close identified a number of back conditions where performance of the exercises in Respondent's program should be discouraged (Tr. 90-1). He also conceded that it might be dangerous for persons with high blood pressure to perform the exercises (Tr. 129). While he felt that in many instances the pain associated with the performance of the exercises might discourage persons with certain conditions from engaging in them, he conceded that there were other situations where the individual would have no pain or where the pain would develop later, and the person could injure himself without realizing it (Tr. 91, 94-106, 120-24). In any event, the fact that an individual might be discouraged from continuing the use of Respondent's program because of the warning received from his pain does not detract from the dangerous or unsafe nature of the program.
While Respondent's cardiologist-witness, Dr. Webster, also gave the generalized opinion that there was no "medically unacceptable risk or danger" for the "general population" in Respondent's exercise program (Tr. 280), he proceeded to list a number of conditions where he would not recommend performance of the exercises. These included persons with certain degrees of high blood pressure, angina pectoris, and arteriosclerosis, some of which conditions are fairly common and a person might not be aware he had them (Tr. 285-86, 295-96, 313-15). It is also worthy of note that Dr. Webster indicated that his opinion concerning the lack of danger in performing the exercises was based solely on the exercises themselves, and he did not know whether the wearing of the belt while performing the exercises added to the danger (Tr. 340). It may also be noted that his opinion concerning the lack of danger was based on the information given to him by Respondent's physiologist-witness, Dr. Ralston, concerning the amount of energy involved in performing the exercises as measured by the oxygen consumption rate (Tr. 291, 300). This does not, however, according to the credible testimony of Complainant's Dr. Mead, take into account the strain caused by a single severe exertion occurring while performing the exercises (Tr. 410).
Despite some broad-brush assertions by Respondent's medical witnesses concerning the relative safety or lack of danger of Respondent's exercise program, their testimony in large measure tends to corroborate that of Complainant's witnesses, Drs. Weilerstein and Mead, as to the danger involved in the program. I have noted a number of the arguments made in Respondent's brief concerning purported infirmities in the testimony of these two witnesses, but do not find such arguments persuasive. No useful purpose would be served by discussing such arguments in detail. However, reference should be made to Dr. Mead's purported admission that he would change his opinion concerning the lack of safety of the program if it were established, as Respondent contends, that 100,000 people had used the belt without any of them suffering a heart attack. It may be noted that Dr. Mead's supposed concession was premised on a fact which has not been established for the record. He stated that he would change his opinion "if this were established as a fact" (emphasis added), i.e., that 100,000 persons had engaged in the program without experiencing heart difficulty. It is Respondent's position that this fact is established through the lack of complaints received by Respondent. In my opinion, no affirmative inference such as that suggested by Respondent can be drawn from the lack of complaints. The public is notoriously reluctant and slow to complain. Moreover, as the medical evidence indicates, difficulties may show up sometime after the use of the belt and the individual may have no way of associating it with Respondent's program.
Respondent has also emphasized the fact that the same exercises as are involved in the Sauna Belt program are used in the reducing salons operated by its owners and that no injury has occurred. This too does not rebut the medical opinion establishing the potentiality for injury or danger. In the first place, the exercises in the salons are generally performed without wearing the Sauna Belt and without working against the pressure of the belt. Secondly, and more importantly, the program in the salons is a supervised one. A medical history of each patron is taken and technicians are alerted to watch for signs of fatigue or illness (Tr. 766, 1349).
Respondent further argues that: "Complainant has utterly failed in his burden of proving that the Sauna Belt and its exercise program are more dangerous than any other mild forms of exercise" (RRB at 21). It refers to the testimony of its cardiologist-witness, Dr. Webster, who characterized Respondent's exercise program as "mild to moderate" (Tr. 280), and as comparable to bowling or golf, but less strenuous than tennis (Tr. 301). Aside from the fact that Dr. Webster's opinion as to the severity of the program was based merely on the exercise program and did not take into account the additional pressure resulting from performing the exercises while wearing the Sauna Belt, his testimony does disclose, as previously noted, the existence of dangers to persons with certain types of heart condition. More importantly, however, the issue in this case is not whether Respondent's program is more dangerous or less dangerous than other types of exercise programs. As previously noted, persons who undertake to engage in certain athletic, sport, or exercise activities, do so on the basis of assuming the risks normally incident in such programs. Respondent's program is not advertised as an active exercise program. Its emphasis is on the Sauna Belt, with incidental reference to performing a few minutes of "two magic waistline reducing exercises". Persons who, because of a heart, back or other condition, might hesitate to engage in bowling or golf, would not be apt to have the same hesitation about engaging in Respondent's program.13/
Finally, Respondent suggests that the issue of lack of safety is moot since it now includes a cautionary note with its product, suggesting a medical check-up before the user begins the program. Without passing judgment on whether such note is actually sufficient to alert readers to the dangers of engaging in the exercise program, it may be observed that disclosures made after the reader has purchased a product do not cure the misleading character of the original advertisement on the basis of which he made the purchase. Exposition Press, Inc. v. Federal Trade Commission, 295 F.2d 869, 873 (2 Cir. 1961), cert. denied, 370 U.S. 917.
3. The "Newness" Issue
The complaint charges Respondent with representing that (a) the Sauna Belt represents a "really new idea in slenderizing" (paragraph 3(h)), and (b) the reducing exercises to be used in conjunction with the belt are new (paragraph 3(i)(i)). The Hearing Examiner held that Complainant had failed to establish the falsity of these representations. Although he found that the "sauna principle has long been known . . . and the exercises are likewise not new", he held that "the employment of the sauna principle in the form of Respondent's belt and the combining of this belt with the exercises do comprise a new application of these ideas." Accordingly, he concluded that "assuming, without deciding, that the representations in charges 3(h) and 3(i)(i) of the complaint are material, these representations are true" (I.D. at 12).
According to the uncontradicted and credible testimony of Complainant's witness, Dr. Weilerstein, there have been various types of waistline constrictive garments "which have been offered, with or without exercises, in the hope of achieving waistline reduction," since the middle of the 19th century (Tr. 543). He further testified that the Sauna Belt "represents the application of a nonporous material, constrictive garment, which fits snugly and is worn during exercise. It is not a new concept" (Tr. 544). Dr. Mead corroborated Dr. Weilerstein's testimony concerning the lack of novelty of a belt such as the Sauna Belt (Tr. 433). Respondent suggests that its product is new because it is "inflatable" (RRB at 76). However, the undersigned does not understand Dr. Weilerstein's testimony concerning prior constrictive garments to be limited to those that were noninflatable. Furthermore, the fact that the constriction results from inflation rather than from some other form of pressure does not, in my opinion, make Respondent's belt "a really new idea in slenderizing", as it claims in its advertising.
Insofar as the exercise program is concerned, as distinguished from the belt, Respondent's own officials conceded that the exercise program used with the Sauna Belt is no different from the exercise program used in their salons for a number of years and sold as far back as 1962 on a mail-order basis (Tr. 739-42). Similar exercise programs have been offered for many years (Tr. 784-86). According to Dr. Mead's testimony, the exercises prescribed for the Sauna Belt are general calisthenics and there is nothing new about them (Tr 435).
As noted above, the Hearing Examiner assumed "without deciding" the materiality of the newness representation. Respondent likewise views the materiality of the newness claim as to the Sauna Belt as "surely doubtful" and finds it difficult to perceive "the materiality of the purported representation of newness concerning the exercises." In my view the representation made as to the newness is indeed material. The public has been regaled for many years with many devices and methods claiming to enable the user to achieve a slimmer figure. After experiencing repeated failures, the public tends to become cynical and dubious about the claims made for such products. Yet, as the bard once said, "hope springs eternal in the human breast", and when a product is brought on the market which is said to be new or different from its predecessors, such claims may help to overcome buyer resistance.
4. The "Ease" of Performance Issue
As heretofore noted, the Hearing Examiner held that Respondent's advertising could not be construed as representing that the exercises used in conjunction with the Sauna Belt could be "easily performed by any user, regardless of his age, health or physical condition", as alleged in paragraph 3(i)(iii) of the complaint. He found that, at best, Respondent represents that the following of its plan "will not present any undue difficulty for the average person who wants to decrease the girth of his waistline" (I.D. at 9). However, unlike a similar representation as to safety, the Hearing Examiner did not determine whether the less sweeping representation as to ease of performance was false or not.
For the reasons heretofore noted, the undersigned does not concur in the Hearing Examiner's finding as to ease of performance representation, and finds that Respondent did make the representation alleged in the complaint (supra at 28). The issue at this point is whether such representation is materially false.
The evidence establishes that Respondent's program, including the exercises, is not "a marvel of ease", as claimed in the advertisement, but involved considerable effort, exertion and discomfort to a considerable number of persons engaging in it, depending on their age, health, and physical condition. Dr. Weilerstein's testimony establishes that a number of persons tested by him complained of pain, stiffness or fatigue after performing the exercises (Tr. 654-56). One of them, a Mrs. Kamp, actually performed the exercises in the Hearing Room, and testified that she had muscular pain, was out of breath and her arms were shaking. After having performed the exercises during the tests, she was still experiencing aches and pains in her legs and back the following day (Tr. 172). Dr. Mead, a man in good physical condition who regularly exercises, testified that Respondent's exercises left him stiff and sore, and that they involved considerable exertion (Tr. 411, 471). An examination of the exercise program itself would suggest that it can hardly be characterized as easy. The simplest of the programs, Program A, involves performance of the following: two groups of 5 abdominal pull-ins (with breath held) while leaning forward against a chair, and 5 push-outs; 100 "fast seated toe-touches", two more groups of 5 abdominal pull-ins, another 100 seated toe-touches, and another two groups of abdominal pull-ins (Ex. C-4).
Respondent contends that Complainant has not sustained the burden of proof upon this issue because the experts who testified on behalf of Respondent characterized the exercises as mild, based on the amount of energy involved, and because a number of user-witnesses testified that the performance of the exercises was not difficult. One of the medical witnesses who Respondent contends considered the exercises mild, Dr. Webster, actually referred to them as "mild to moderate", with Program A being less strenuous than Programs B and C (Tr. 480). Although he claimed that none of the programs involved medically "unacceptable risks", his testimony indicates that there were a number of persons with back and heart problems for whom he would not recommend the program. His testimony also reveals that for persons who engage in a sedentary life, it would not be advisable to engage immediately in a strenuous exercise program, but that such program "should be graded and gradually increased to the limits of the patient's tolerance" (Tr. 294). Dr. Webster's opinion regarding the exercise program was, as previously noted, based solely on the exercise program and did not take into account any inhibiting factors involved in the performance of the exercises while wearing the belt (Tr. 340). While Dr. Close testified that the exercises involved "very little more" strain than various everyday exercises such as bending down and walking (Tr. 122), his testimony also reveals that he was referring to a normal person with no pathology, and that he would not recommend performance of the exercises for persons with certain back and circulatory conditions (Tr. 88, 90, 93, 129). His testimony also reveals that some of the persons who engaged in the tests under his supervision complained of muscle soreness after performing the exercises (Tr. 91). Although Dr. Linfoot considered the energy involved in the performance of the exercises as "slight", he recognized that this would vary in relation to a person's normal activity, and indicated that he was a "fairly active" person (Tr. 805). He suggested that a person of a less active background should engage in a more graduated type of exercise regimen (Tr. 806). Regarding Respondent's contention that the exercises are mild in terms of the total amount of oxygen expended, this does not take into account the difficulty involved in individual maneuvers in the exercise program, which are not fully reflected in oxygen consumption measurements (Tr. 417-18, 493).
Respondent seeks support for its contention that the exercises were mild in nature from the testimony of the 11 lay witnesses who testified in its behalf. I fail to find the testimony of such witnesses impressive. In most instances their testimony consisted merely of a negative response to the leading question whether the exercises were "difficult". Four of the group were employees of Respondent who were involved in the test conducted by Dr. Ralston, and one was the wife of Dr. Ralston. Most of the employees were young, being between 18 and 21 years of age. The difficulty experienced by them would certainly not be indicative of what more mature persons would experience. One of Respondent's employees, while answering in the negative when asked if the exercises were "difficult", volunteered the information that they were "tiring" (Tr. 837). One of the individuals who was tested by Dr. Close, while giving a negative response to the question whether the exercises were strenuous, also indicated that they left her with some soreness in the back of the thigh (Tr. 860. One of the customer-witnesses whose testimony is cited by Respondent, did not testify that the exercises were easy, but rather that doing them with the belt on made it easier because it gave support to a back condition (Tr. 613). The same witness, because of a heart condition, performed the exercises on a more leisurely basis, over a 15 or 20 minute period, compared to the 10-minute period or less testified to by Respondent's other witnesses (Tr. 610). Still another customer-witness referred to by Respondent did not actually testify that the exercises were not difficult, but rather that he had avoided doing the toe-touching exercise since he had trouble bending over and touching his toes following surgery (Tr. 1139).
5. Loss of as Much Girth as Desired
Paragraph 3(b)(iv) of the complaint charges Respondent with representing that the Sauna Belt, in conjunction with the exercises, will result in a loss from the waistline of "as many inches as the user desires." As heretofore noted, the Hearing Examiner, based on certain explanatory material in the advertisement, found that Respondent did not make the representation charged. For the reasons heretofore stated, I do not concur in the Hearing Examiner's finding, and find that Respondent did make the representation charged (supra at 24-5). The issue at this point is whether the representation is materially false.
The uncontradicted medical testimony offered by Complainant establishes that the user of Respondent's belt, in conjunction with its exercise program, cannot expect to achieve a loss from his or her waistline of as much as he desires (Tr. 429, 540). Respondent offered no countervailing evidence on this issue, its evidence as to efficacy being directed primarily at establishing that the Sauna Belt program will enable the user to obtain certain specific losses over the initial period of use. Its argument on appeal is directed to the question of whether it makes the representation alleged in Paragraph 3(b)(iv), and not to whether the representation is true or false.
D. The Allegations Dismissed at the End of Complainant's Case-in-Chief
The Hearing Examiner dismissed a number of allegations of the complaint at the end of Complainant's case-in-chief, on motion of Respondent, based on Respondent's contention that it did not make the representations in question. I have heretofore indicated my disagreement with the Hearing Examiner to the extent that exceptions were filed by Complainant from his rulings, and have found that Respondent did make a number of the representations alleged in the complaint. Since the dismissal of these allegations may have resulted in Respondent's not offering evidence which it might otherwise have offered concerning the truth or falsity of such representations, I will refrain from making any findings with regard thereto.14/ If these were the only issues in the case it would be appropriate to remand the proceeding to the Hearing Examiner for the purpose of receiving evidence from Respondent concerning the truth or falsity of the representations which were dismissed at the end of Complainant's case-in-chief. However, since the record establishes misrepresentation by Respondent with respect to a number of other matters, sufficient to support a remedial order, no useful purpose would be served by remanding this proceeding to the Hearing Examiner for the purpose indicated.
To the extent inconsistent herewith the Initial Decision is reversed, and in accordance with the views above stated, and the findings above made, in connection with the exceptions filed by Complainant to said Initial Decision, I conclude and find as follows:
1. Respondent is engaged in obtaining remittances of money through the mail, in connection with the sale of a device consisting of an inflatable plastic belt known as the "SAUNA BELT".
2. Respondent obtains such remittances through statements made in advertising matter distributed to the public, concerning its said product.
3. By means of the aforesaid advertising matter, copies of which are attached to the complaint herein and are part of the record in this proceeding, Respondent makes the representations set forth in the following subparagraphs of Paragraph 3 of the complaint: (a)(i) through (iv), (b)(i) through (iv), (d), (e), (f), (g), (h) and (i)(i) through (v).
4. The representations set forth in the following subparagraphs of Paragraph 3 of the complaint are materially false: (b)(i) through (iv), (g), (h), and (i)(i), (iii) and (iv).
5. No findings are made as to the falsity of the remaining representations found to have been made in Paragraph 3 above, inasmuch as the allegations containing said representations were dismissed at the close of Complainant's case-in-chief, and it may be assumed Respondent refrained from offering evidence with respect thereto.
Respondent is engaged in conducting a scheme or device for obtaining money through the mail by means of false representations, in violation of 39 U.S.C. § 4005, now § 3005. Accordingly, a remedial order authorized by said statute will issue forthwith.
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1/ Complainant's exceptions do not specifically refer to the Hearing Examiner's failure to find the making of the ease and safety representations, which are alleged in subsections (iii) and (iv) of Paragraph 3(i) of the complaint. However, exceptions (9) and (12), which involve the Hearing Examiner's failure to find misrepresentation with regard to these matters, by implication raise the issue of whether the representations were made.applicable criteria are for resolving these questions. Before considering the merits of the individual exceptions, it is appropriate to consider what the applicable legal criteria are.
2/ In referring to the briefs filed by the parties, the following abbreviations are used: "CB", for Complainant's Brief on Appeal and "RRB", for Respondent's Reply Brief.
3/ Federal Trade Commission v. Standard Education Society, 302 U.S. 112, 116; see also Florence Mfg. Co. v. J. C. Dowd & Co., 2 Cir., 178 F. 73.
4/ Charles of the Ritz Distributors Corp. v. Federal Trade Commission, 2 Cir., 143 F.2d 676, 679.
5/ Cf. Donaldson v. Read, 333 U.S. 178, 189; Federal Trade Commission v. Standard Education Society, 302 U.S. 112.
6/ References to the transcript of testimony hereinafter made are with the abbreviation "Tr". References to exhibits are made with the abbreviations "C" for Complainant's exhibits and "R" for Respondent's exhibits.
7/ One of Respondent's witnesses, a purchaser of the belt, testified that the words "Sauna Belt" were what caught his attention. His testimony suggests that he took no note of the fact that there was an exercise program involved (Tr. 1114-1115).
8/ Respondent notes, in its brief, that in a poll conducted on its behalf none of the interviewees interpreted the word "magic" as meaning that the exercises would be easy for anyone regardless of age, health or physical condition. This is not surprising since their attention was not specifically directed to this aspect of the matter. It is significant, however, that out of 57 interviewees who noticed the word "magic" in the advertisement, 22 or approximately 40%, interpreted it to mean that the exercises were "easy", "effortless", or "simple". When the attention of the remaining 43 interviewees was directed to the word "magic", 15 interpreted it in the same manner as did the 22 of the original group (Ex. R 23, Table 6; Tr. 1178-1181).
9/ The above quoted language is omitted from Respondent's quotation from Reilly v. Pinkus as purporting to "accept the McAnnulty decision" (RRB at 64).
10/ See Exposition Press v. Federal Trade Commission, 295 F.2d 869 (2 Cir. 1961), cert. den. 370 U.S. 917; and Bantam Books v. Federal Trade Commission, 275 F.2d 680 (2 Cir. 1960), cert. den. 364 U.S. 819.
11/ In a separate section headed: "MONEY BACK GUARANTEE", the advertisement makes clear the absoluteness of its promise, with the following statement:
12/ Dr. Ralston's testimony discloses that he tested subjects Nos. 4, 9, 10, 13-19 (Tr. 955).