In the Matter of the Complaint Against GRAPEFRUIT DIET 7046 Hollywood Boulevard and Post Office Box 3689 at Hollywood, California 90028 INITIAL DECISION OF HEARING EXAMINER P.O.D. Docket No. 3/77 February 10, 1972 Thomas A. Ziebarth, Esq., Law Department, U. S. Postal Service, for Complainant. Stanley Fleishman, Esq., Hollywood, California, for Respondent Before: John Lewis , Hearing Examiner
This proceeding was initiated by the filing of a complaint by the General Counsel of the Post Office Department (now United States Postal Service) on March 9, 1971, charging the above-named 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. Code, Section 4005 (now Section 3005). In essence, said complaint charges Respondent with having made false representations in advertising matter concerning the nature and effectiveness of its diet plan, known as the "Grapefruit Diet". Respondent appeared by counsel and filed answer in its full corporate name, Hollywood House International, Inc., admitting the use of the advertising matter alleged in the complaint, but denying the making of the representations alleged or the falsity thereof.
Respondent also alleged, as an affirmative defense, the unconstitu- tionality of the statute under which the complaint herein was issued. On motion of Respondent the place of hearing herein was changed from Washington, D. C., to Los Angeles, California, by order of the undersigned Hearing Examiner issued March 31, 1971. A further motion by Respondent for the issuance of certain subpoenas duces tecum to the Federal Trade Commission to produce records "reflecting action taken by the said Commission concerning false claims made in connection with nutritional claims" was denied by the Hearing Examiner's order of April 13, 1971.
Hearings for the reception of evidence in support of, and in opposition to, the complaint were convened on May 3 and 4, 1971, in Los Angeles, California. Both sides were represented by counsel and were afforded full opportunity to be heard, and to examine and cross-examine witnesses. At the opening of the hearing counsel for Respondent moved for a dismissal of the complaint on the constitu- tional grounds raised in its affirmative defense. Said motion was denied by the Hearing Examiner, with the understanding that by proceeding with the hearing Respondent would not be deemed to have waived its right to present the constitutional question in an appropriate forum.
Counsel for Complainant called two witnesses, (1) a specialist in internal medicine and metabolic diseases, and (2) a nutritionist, through whom he sought to establish the falsity of the representa- tions made in Respondent's advertising matter. Respondent called three witnesses, (1) a representative of a company processing orders for its diet booklet, through whom it sought to show the number of reorders received, (2) a dietician, through whom it sought to show the effectiveness and widespread use of grapefruit in dieting, and (3) a representative of the advertising agency handling Respondent's account, through whom it sought to establish some of the criteria used in the preparation of advertising copy.
At the close of all the evidence, the parties were granted until June 14, 1971, to file proposed findings of fact and conclusions of law, which date was thereafter extended until June 28, 1971, on motion of Respondent. Proposed findings of fact and conclusions of law were thereafter filed by counsel for Complainant on June 28, 1971, and by counsel for Respondent on June 30, 1971 (the latter document having been mailed on June 28, 1971).
After having carefully reviewed the evidence in this proceeding and the proposed findings and conclusions,1/ and based on the entire record, including his observation of the witnesses, the undersigned makes the following:
FINDINGS OF FACT
A. The Alleged Solicitation of Money Through the Mail
1. Respondent Hollywood House International, Inc., doing business as Grapefruit Diet, is engaged in selling a weight-reduction program to the general public which it designates as the "Grapefruit Diet". Said plan is set forth in a booklet entitled "'Weight-Away' A Very Successful Grapefruit Diet" (CX 1-B; Tr. 25).2/
2. Public attention is attracted to Respondent's weight-reduction plan through advertisements placed in newspapers and magazines of general circulation. As part of its advertisements, Respondent includes an order form or an invitation for readers to order its booklet through the mail by enclosing the sum of $2.00 with the order. The record establishes that Respondent does, in fact, obtain money through the mail from customers who complete and mail the order form, or otherwise order the booklet, by sending money through the mail in payment of Respondent's weight- reduction plan (Ex. "A" and "B" to Compl., Admitted in par. 1 of Ans.; Tr. 24-5).3/
B. The Alleged Representations
3. Respondent's advertising matter contains various state- ments concerning its weight-reduction plan. A copy of such advertising matter, by which it solicits money through the mail, is attached hereto as Appendix "A". Based on the portions of Respondent's advertisements which are quoted in part in the complaint, and other statements appearing therein which are hereinafter set forth in parenthesis, it is the finding of the Hearing Examiner that Respondent has made the following representations directly or indirectly, in substance and effect, to readers of said advertisements:4/
a. That grapefruit is an integral and essential part of the diet regimen and contributes materially to a rapid and substantial weight loss on the part of the dieter by acting as a "catalyst" or "trigger" to start the "fat burning process".
("The secret behind this new 'quick weight loss' diet is simple. Fat does not form fat. The grapefruit acts as a catalyst (the 'trigger') to start the fat burning process.")
b. That an obese person may, under this diet, eat as much as he wants of various fatty foods normally forbidden in a weight-loss regimen and still lose "10 pounds in 10 days" and "1 1/2 pounds every two days thereafter" until his weight is down to normal because "fat does not form fat".
(" / T /his new diet plan let's you partake of foods formerly 'forbidden' such as big juicy steaks, roast and fried chicken, rich gravies, spareribs, mayonnaise, lobster swimming in butter, bacon, sausages and scrambled eggs. You can eat until you are full and still lose 10 pounds in the first 10 days plus 1 1/2 pounds every two days thereafter. The secret behind this new 'quick weight loss' diet is simple. Fat does not form fat. ... You eat as much as you want of the permitted foods listed in the diet plan and still lose unsightly fat and excess body fluids. ... Decide now to regain the trim, attractive figure of your youth, while enjoying hearty breakfasts, lunches and dinners.")
c. That the diet plan is new or "revolutionary", or is different from other high-fat, high-protein, low-carbohydrate weight-loss regimens which are universally available.
("This is the revolutionary grapefruit diet that everyone is suddenly talking about. ... Literally thousands upon thousands of copies have been passed from hand to hand in factories and offices throughout the U.S. Word of its success has spread like wild fire. This is the diet that really works. ... Now revised and enlarged, this new diet plan let's you partake of foods formerly 'forbidden'. ... The secret behind this new 'quick weight loss' diet is simple.")
d. That "when the fat and bloat are gone", the dieter's weight will remain constant.
("When the fat and bloat are gone your weight will remain constant.")
C. The Alleged Falsity of the Representations
4. As heretofore noted, counsel for Complainant called two expert witnesses to establish the falsity of the representations made in Respondent's advertising matter. One of these, Dr. Sheldon Margen, is a physician and a professor of Human Nutrition. He is a specialist in Internal Medicine and is certified as such by the American Board of Internal Medicine. He is presently a professor of Human Nutrition and Chairman of the Department of Nutritional Sciences at the University of California, Berkeley (Tr. 27-9; CX 2-A). The other witness, Dr. Gladys A. Emerson, is a nutritionist connected with the School of Public Health of the University of California at Los Angeles, and holds a Ph.D degree in nutrition and biochemistry. Her field of specialization is in vitamins and nutrient inter-relationship (Tr. 180-5; CX 7). The record establishes beyond any doubt the expert qualifications of these witnesses in the subject-matter field of dieting which is involved in this proceeding. Respondent offered no countervailing expert testimony. Although one of its witnesses is a dietician, holding a B.S. degree in Home Economics, her testimony did not purport to contradict that of the Postal Service's expert witnesses in any material respect. Her employment as a dietician with a restaurant chain involves basically the checking of quality standards in foods rather than matters of diet and nutrition (Tr. 263, 290).
5. The uncontradicted and credited testimony of Drs. Margen and Emerson clearly establishes, and it is so found, that the representa- tions made by Respondent in its advertising matter are false in all material respects, for the following reasons:
a. Grapefruit as an Essential Element in a Dietary Regimen . As heretofore found, Respondent represents in its advertising matter that grapefruit is an essential element in a dietary regimen and materially contributes to a rapid and substantial loss of weight. It is claimed that it does this by acting as a "catalyst" or "trigger" to start the "fat burning process". The testimony of Complainant's expert witnesses establishes that grapefruit is not an essential element in a dietary regimen, and that it does not act as a "catalyst" or "trigger" in the fat burning process (Tr. 47, 49, 51-3, 187, 196-7, 257). While grapefruit contains some vitamin C and has a small amount of carbohydrates, there are other foods that can supply these elements to the diet just as well. Moreover, it has no special attribute in causing or accelerating the burning of fat in the weight-loss process. Respondent's sole expert witness referred to grapefruit as a "palatable" and "filling" food which "seems to give romance to a very bland normal type of diet routine", but made no claim that it played an essential role as a catalyst or trigger in the burning of fat (Tr. 271). It may also be noted that while Respondent makes a positive claim in its advertisements concerning grapefruit's action as a "catalyst" or "trigger" to start the fat burning process, it is considerably less positive in its dietary booklet concerning the validity of its advertising claims, conceding that: "Frankly we know of no fully substantiated medical theory which explains the intricate role that grapefruit plays in the success of this diet" (CX 1-B at 4).
b. Eating as Much as one Wants of Fatty Foods . As heretofore found, Respondent represents that under its diet one may eat as much as he wants of fatty foods and still lose weight because "fat does not form fat". Examples are given of fattening foods which may be eaten, including "big juicy steaks, roast or fried chicken, rich gravies, spareribs, mayonnaise, lobster swimming in butter", etc. According the the testimony of Complainant's expert witnesses, one cannot eat all one wants of fattening foods and still lose weight, and it is not accurate to say that fat does not form fat. In order to lose weight safely and to maintain the weight loss it is necessary to follow a balanced diet from the principal food groups, consisting of about 30% fat, about 15% protein and the balance carbohydrates, with a limit in caloric intake. Respondent's diet is essentially a "high protein, high fat" and low carbohydrate diet (Tr. 54). In a number of instances it does not specify the quantity of particular foods which are permissible. The variation in caloric intake which may result from eating such foods may vary from 1300 to 3500 calories per day. At the latter end of the scale an individual may gain, rather than lose weight. While there may be some weight loss in the early period of Respondent's diet, this would be due principally to a loss of water, rather than to a loss of fat, and will not be permanent. Moreover, the loss of too much water which may occur in a low carbohydrate diet may produce acidosis or ketosis, which is dangerous to one's health. It may also be noted that while Respondent claims in its advertisements that its diet permits one to partake of the "formerly forbidden" fatty foods described therein, its diet booklet does not carry through on this promise. The sample diets therein prescribe "the leaner cuts" of meat, such as "lamb, poultry, veal", and eschew the "rich gravies", "lobster swimming in butter", etc., which are referred to in the advertisements. Despite the claim in the advertisements that "fat does not form fat", Respondent's diet booklet recommends the use of "low fat" and "skim" milk, and jello "(with low fat milk)". The permissibility of partaking of "fried" chicken in the advertisement is followed by the admonition in the booklet concerning chicken and other foods, that they may be "occasionally fried". It is thus apparent that there is not only misrepresentation in the claims made in Respondent's advertisements as to the permissibility of eating unlimited amounts of fatty foods and still losing weight, but there is a discrepancy between what the advertisements promise in this respect and what the diet booklet permits (Tr. 31-42, 47-51, 55-8, 64-5, 74, 154, 166, 187-9, 218-9; CX 1-B at 10-13).
c. The Diet Plan as "Revolutionary" or Different The representation is made in Respondent's advertising matter that its diet plan is new, revolutionary or different. As noted above, Respondent's diet is essentially a high-fat, high-protein, low-carbohydrate diet. Such plans have been known since at least 1865, and have been called by various names. Although they may feature different foods (e.g., one is known as the "Drinking Man's Diet"), they are essentially the same in their emphasis on high-fat, high-protein, low-carbohydrate foods (Tr. 59, 62, 86, 188, 240). Respondent's own witnesses corroborated the fact that there have been and are on the market a number of such diets, including some which feature grapefruit (Tr. 268-74, 305).
d. When fat and Bloat are Gone the Dieter's Weight Will Remain Constant . As heretofore found, Respondent represents in its advertising that " / w /hen the fat and bloat are gone your weight will remain constant". This is based, in part at least, on the assertion that "grapefruit acts as a catalyst (the 'trigger') to start the fat burning process". As previously found, such assertion is false. Since grapefruit will not "trigger" the "fat burning process" it is obvious that the "fat and bloat" will not necessarily be removed. Assuming, however, that by the judicious following of Respondent's advertisements indicate may be eaten in amounts "as much as you want", the dieter does achieve a significant weight loss, the only way in which such loss may be maintained is by continuous adherence to a diet. As Dr. Margen testified, if a person after losing weight under the diet began to increase the amount of his calories without an increase in activity, he "certainly would begin to put weight on again. ... / T /he whole history of weight-reduction is pretty tragic because almost everyone who loses weight tends to put it back on again" (Tr. 68-9).
D. The Defense Evidence
6. The principal thrust of Respondent's defense is that the Grapefruit Diet is a well-balanced diet which is effective in a weight-loss program, and that to the extent some of the claims made for it may be somewhat exaggerated, they constitute permissible "puffery and hyperbole / which are / known and accepted both by the professional advertiser and by the consumer" (Resp.'s Prop. Find. at 4). Respondent's defense evidence consisted of (a) the dietician, through whom Respondent tried to show that its booklet provides a well-balanced diet similar to other diets that have appeared in magazines of general circulation and which she herself had used (Tr. 268-74), (b) the representative of the company handling reorders of its booklet, through whom Respondent showed that it had processed 4,260 reorders for the diet booklet in the period of a year, thus suggesting satisfaction with the diet by users who wished to give a copy to a friend or relative (Tr. 258-61), and (c) the head of the advertising agency handling Respondent's advertising, who testified that advertising "gives us a license to sell a product with a little romance" (Tr. 304), and that " / w /e take a little sales liberty in our advertising in the ads that in my estimation is fair" (Tr. 310).
7. In the opinion of the Hearing Examiner the evidence offered by Respondent is largely irrelevant and does not rebut the direct evidence of misrepresentation offered through Complainant's expert witnesses. The basic purposes of this proceeding is not an overall evaluation of Respondent's diet booklet or weight-reduction methods, but to determine whether certain specific representations appearing in Respondent's advertising matter are materially false, as alleged in the complaint. As above found, the evidence offered by Complainant establishes that the representations made are materially false since various of the statements are contrary to scientific fact and in certain instances are at variance with the weight-reduction program recommended in the booklet itself. The fact that advertising people consider it necessary or permissible to romanticize a product in order to sell it, by assigning to it qualities which it does not possess, is entirely irrelevant. The law is intended to protect the "ordinary" reader or consumer, and the meaning which an advertisement will convey to him is controlling, rather than that which it will convey to a sophisticated advertising copy man ( Donaldson v. Read Magazine , 333 U.S. 178, 189; FTC v. Standard Education Society , 302 U.S. 112, 116). The specific and positive representations made in Respondent's advertising can hardly be considered to fall into the category of mere "puffing", which involves the use of such descriptive and subjective words as "easy", "perfect", "amazing", "wonderful", "excellent", etc. ( Carlay Co. v. FTC , 7 Cir., 153 F.2d 493, 496). Nor does testimony indicative of satisfied customers rebut evidence of specific misrepresentations, such evidence being "entirely irrelevant" to a charge of misrepresentation ( Basic Books, Inc. v. FTC , 7 Cir., 276 F.2d 718, 721; Erickson v. FTC , 7 Cir., 272 F.2d 318, 322).
Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U. S. Code 3005. It is accordingly recommended that an order in the form attached, as provided in 39 U. S. Code 3005, should be issued.
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1/ Proposed findings not herein adopted, either in the form
proposed or in substance, are rejected as not supported by the
evidence or as involving immaterial matters.
2/ The following abbreviations are used herein in
referring to evidence in the record: "Tr", for the transcript of testimony; "CX",
for Complainant's exhibits; "RX", for Respondent's exhibits. Such
references are to the principal parts of the record relied upon by
the Examiner, in support of particular findings, but are not intended
as an exhaustive compendium of the portions of the record reviewed
and relied upon by him.