In the Matter of the Complaint Against TRIM-TIGHTS 6311 Yucca Street, Hollywood Station at Los Angeles, California 90028 P.O.D. Docket No. 3/87 10/18/72 Wenchel, Adam G. APPEARANCES: Daniel S. Greenberg, Esq.; Law Department, United States Postal Service, Washington, D.C. 20260 for Complainant Miss Mary R. Menzies, Respondent, Pro Se
The above-captioned matter is before the Judicial Officer on appeal from the Initial Decision of the Chief Hearing Examiner recommending the issuance of a false representation order under 39 U.S.C. 3005.
The Chief Hearing Examiner, after eliminating or limiting certain charges in the complaint, found that Respondent was engaged in obtaining money or property through the mails in that she received remittances through the mails for her product "Sauna Girdle" through means of advertising containing the following materially false representations:
"A. That merely wearing the 'Sauna Girdle' will enable the user to effect 'spot' reduction of the hips, abdomen, waist and thighs;
"B. That merely wearing the 'Sauna Girdle' will result in a reduction in weight."
Respondent's appeal contains seven numbered points. These are discussed separately below. Complainant has not taken exceptions to findings or conclusions adverse to him.
1. Appellant excepts to the refusal of the Chief Hearing Examiner to postpone the hearing when "Appellant, through no fault of her own, was completely unrepresented by any attorney during the entire three days of hearing held in Los Angeles on September 13, 14 and 15 of 1972."
The history of the proceeding shows a series of continuances granted for the convenience of Respondent and her attorneys. Although it is possible that she may not have presented her case as ably as a knowledgeable attorney, it is clear from a reading of the record that the Chief Hearing Examiner not only conducted the hearing in an informal manner suitable to her needs, but did assist her in overcoming technical difficulties.
Respondent contends that because of her lack of legal training "Subjects not mentioned in the charges were brought to which Respondent should have objected as not within the scope of the Complaint as written." She does not point out these subjects. However, the Initial Decision has been reviewed with this exception in mind. That decision carefully evaluates the evidence in relation to the charges in the complaint and disregards any evidence that the Chief Hearing Examiner considered not within the scope of the charges in the complaint.1/
Failure of Complainant to induce her attorneys to attend the hearing did not prevent her having a fair hearing. Nor did the refusal of the Chief Hearing Examiner to postpone the hearing beyond 24 hours on a motion first presented at the commencement of the hearing, that he and others traveled across the continent to attend, deprive Respondent of the right to counsel. In this connection, as shown by the history recited in the Initial Decision, the hearing was set for Los Angeles at the request of Respondent's attorneys and had been postponed a number of times at the instance of Respondent and her attorneys.
2. Respondent states:
"Appellant believes that the counsel for the Complainant negotiated in a questionable manner by offering a compromise settlement, requesting Respondent's compliance in writing, requesting her attorney's written acceptance of certain revisions of advertisements (sic); leading Respondent's attorneys to believe the hearing would not be necessary and that a compromise agreeable to Complainant would be made. These letters of agreement were entered in evidence (Attorney's correspondence R-6 pages and 256 and Respondent's letter R-5 pages 253 and 254 of the Transcript) but the effect of this negotiation was to cause Respondent's attorneys to make other commitments which precluded their attending and representing the Respondent. The agreement was then ignored by Complainant's counsel who initiated it as a means of obviating more loss of time and expense on both sides."
Respondent contends that Complainant negotiated in bad faith for a compromise agreement asserting that the Complainant initiated the negotiations and then ignored the agreement. However, the record in this proceeding does not suggest either that Complainant's Counsel initiated the negotiations or that an agreement in fact was made. Respondent's last retained attorneys only suggest that they believed negotiations should have continued, not that agreement had been reached.
The following are noted in the record.
A. The Chief Hearing Examiner's order of June 25, 1971, recites:
"Mrs. Harris [Respondent's first attorney] requested a continuance of the hearing [scheduled for June 29, 1971] for the purposes of *** affording the parties opportunity to explore the possibility of settling the case without the necessity for a hearing."
B. Paragraphs 8 and 9 of the affidavit of Respondent's successor
Counsel Dilling, executed on September 1, 1971:
"8. Accordingly, affiant is endeavoring to compromise the above matter, if at all possible, considering, of course, that such compromise would not prejudice respondent or her business, which constitutes her only livelihood.
"9. Attached hereto is a letter received from Honorable Daniel Greenberg, attorney for plaintiff, which is confirmative of the aforesaid negotiations, affiant having responded and replied to such letter immediately."
C. Letter of Complainant's Counsel Greenberg dated August 30,
1971, as follows:
"Confirming our telephone discussion of Friday, August 27, 1971,I will consult with our medical experts concerning any change your client proposes to make in her claims for the Trim-Thighs 'Sauna Girdle.'
"Please bear in mind that the hearing in this matter is scheduled for September 13, 1971. I would therefore suggest that any such proposals be sent as soon as is possible, inasmuch as I do not want our negotiations to preclude your adequate preparation in the event we are unable to reach an accord." (emphasis supplied).
D. Chief Hearing Examiner's Order of September 7, 1971, stated:
"Insofar as possible compromise negotiations are concerned, there is ample time to accomplish this purpose, if the parties are truly so disposed, prior to the hearing date."
From the foregoing it is clear that no agreement was in fact reached, nor is there any basis to conclude that any action of Complainant's Counsel led Respondent's attorneys to believe the hearing would not be held as scheduled. Accordingly, this exception is overruled.
3. This exception is "the compromise agreed to more than covered the points found to be misleading according to the FINDINGS OF FACT in the INITIAL DECISION."
As shown above, no agreement was reached by the parties. Of course, Complainant is not required to accept a proferred compromise and it is difficult to see what corrective action Respondent desires the Judicial Officer to take if, as she contends, the Initial Decision was more favorable than the compromise she was prepared to make.
4. This exception is directed against the findings quoted on page 2 above. The supporting arguments contain three contentions:
A. That Respondent's witnesses who tested the Trim-Tights with an exercise program found favorable results;
B. That the testimony and decision in Sauna Belt, P.O.D. Docket No. 3/43 2/ establish that the garment involved there when used in conjunction with exercise will cause a loss of body fluid and therefore weight; and
C. That the essential characteristics of the garments involved in the Sauna Belt proceeding and this proceeding are the same.
The first problem with this exception is that the Initial Decision found the advertisement to represent that merely wearing the garment would produce a reduction in body size. Evidence as to whether an exercise program during which the Sauna Girdle is worn is conducive to such a reduction does not tend to establish that wearing the Sauna Girdle would itself produce such a reduction. Certainly, exercise that assists the body to use more calories than it receives will cause a weight loss and presumably therefore a reduction in body size, but that is a different matter from whether wearing Respondent's product without an exercise program will cause a reduction in any body dimensions.
A conclusion in any proceeding under 39 U.S.C. 3005, the law under which this proceeding was brought, cannot be reached by comparing the product involved in it with a product involved in another proceeding. The product in each case must be measured against the advertising claims made to induce its sale. It is immaterial, therefore, to this proceeding whether the product involved in Sauna Belt, P.O.D. Docket No. 3/43, measured up to the claims its promoters made for it. In any event, however, Mr. John Lewis, as Acting Judicial Officer, recently rendered a Postal Service Decision in that matter holding various advertising claims concerning the product there involved to be false and misleading.
The exception taken therefor is denied.
5. Respondent claims that since the commencement of this proceeding, she has abandoned the advertising complained of and has used revised advertising that she believes eliminates the representations the Chief Hearing Examiner found to be false. In support thereof Respondent attached a copy of the revised advertisement. Whether the revised advertisement eliminates the claims found to be false need not be determined.
It is noted that a different address is used in the new advertisement. Obviously, therefore, any orders received at the address shown in the caption will not be in response to the revised advertising. Whatever the effect of changing the advertising copy during the course of the proceeding might be in other cases, the change here would not make it inappropriate to issue an order based on allegedly discontinued advertising.
6 and 7. In these points Respondent contends her advertising claims are no worse than those of her competitors and for this purpose attaches an advertisement she says was used in prior years by another marketer of Respondent's Trim-Tights. That advertisement is as follows:
"TRIM'N SLIM
"Keeps you trim--helps make you slim. This new knee-length garment aids in temporary loss of body moisture. Wear while doing housework or exercising. An easy trick for that 'new you.' Small, medium, large, x large.
"'Patented Trim-Tights' $14.99'"
While exception might be taken to other portions of that advertisement, it differs from Respondent's advertisement involved here in stating the function of the garment is that it "aids in the temporary loss of body moisture" and, further, indicates exercise to be a part of the effectiveness.
Respondent's advertisement involved here is quite different in these respects as may be observed from its text set out below:
"S P O T R E D U C E
"Spot Reduce with a 'Sauna Girdle'. Works like a steam bath to reduce hips, abdomen, waist and thighs. Lose where it counts. May be worn all day like any fine girdle. Invisible under dress or leotards. Completely safe and effective, it's the glamour secret of stars and professional models. Send waist and hip measurements & $12.99 ppd. to TRIM-TIGHTS MFG. M-1, 6311 Yucca St., Hollywood, Calif. 90028."
Further, Respondent is not alone in this industry in having its advertising representations challenged since a number of proceedings as to presumably competitive products have recently been completed.3/
Vibra Sales, P.S. Docket No. 1/60
Upon consideration of the record in this proceeding in the light of Respondent's exceptions, the Initial Decision is affirmed and a remedial order under 39 U.S.C. 3005 will issue forthwith.
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1/ See, e.g., the Chief Hearing Examiner's denial of Complainant's posthearing motion to amend the pleadings to conform to evidence presented.