In the Matter of the Complaint Against TRIM-TIGHTS, 6311 Yucca Street, Hollywood Station at Los Angeles, California 90028 P.O.D. Docket No. 3/87February 16, 1972
William A. Duvall Chief Hearing Examiner
APPEARANCES: Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C. 20260 for Complainant Miss Mary R. Menzies, Pro Se
The then General Counsel for the Postal Service, Complainant herein, filed a complaint on May 21, 1971, alleging that Trim-Tights,1/ 6311 Yucca Street, Hollywood Station, Los Angeles,
California 90028 is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of 39 U. S. Code 3005. Trim-Tights is owned by Miss Mary R. Menzies, and either the company of Miss Menzies, or both, will hereafter be referred to as Respondent, as the sense of the reference indicates. Respondent was served with a copy of the complaint and a notice that the matter had been set down for hearing on June 21, 1971.
Respondent filed answer on her own behalf on June 9, 1971, setting forth, in effect, a general denial of all of the charges in the complaint.
On motion by the Complainant the hearing was continued to June 29. On motion filed by Respondent on June 21, the hearing was continued to July 7 in order to give a Washington attorney the opportunity to become familiar with the case and in order to give the parties the opportunity to explore possible avenues of settling the case. Respondent also requested that the hearing, if held, be conducted in Los Angeles, California.
By letter filed July 2, Respondent advised that she would be handling the case herself. She requested a sixty-day continuance of the hearing and she re-stated the request for the change of venue.
On July 9, Respondent was ordered to furnish, on or before July 21, the information required by 952.15 of the Rules of Practice as justification for the requested change of venue.
Kirkpatrick W. Dilling, Esq., an attorney of Chicago, Illinois, on July 22, entered the appearance of himself and his Los Angeles associate, Gladys Towles Root, Esq. on behalf of Respondent. Mr. Dilling also filed a motion for an extension of time until August 5 to furnish the information required by 952.15 of the Rules of Practice. In support of the motion Mr. Dilling submitted an affidavit to the effect that Mrs. Root was at that time in Switzerland and that he was leaving on July 21 for Zurich where he would remain for approximately one week. Mr. Dilling cited the need to interview witnesses and to take other pre-trial steps as the reasons why the time extension was needed.
Pointing out that this was the third extension of time requested by or in behalf of Respondent, the undersigned granted this request, while admonishing Respondent's Counsel to pursue their preparation for this matter with diligence.
On August 5, Respondent's Counsel Dilling filed a document (1) listing the names of five lay witnesses and one medical doctor whom Counsel tentatively planned to call to testify and (2) summarizing the testimony to be given. Because of other intervening hearings and in order to give Respondent's Counsel time to prepare fully for the trial, the hearing was scheduled for September 13, 1971, in Lost Angeles.
On September 7, Mr. Dilling filed a motion that the hearing be continued to October 10. In an affidavit in support of said motion Mr. Dilling stated (1) that he had made plans and arrangements to go to Lisbon, Portugal on or about September 15 in connection with certain unspecified legal matters, returning to Chicago on or about October 4; (2) further studies of Respondent's product had been undertaken by experts (including one Allen Bursk, M.D.) and it was likely that said studies would not be completed by September 13; 2/ and (3) efforts were being made to settle the case.
Pointing out, among other things, the many times this case had been continued in the past, and the fact that the hearing would be in Los Angeles, the home of co-counsel for Respondent, the motion to continue the hearing to October 4 was denied.
The matter came on for hearing on September 13, 1971, in Los Angeles. The Respondent appeared without counsel, but presented a motion and affidavit of Gladys Towles Root, Esq., co-counsel for
Respondent. Mrs. Root moved that the hearing be continued for one month and stated that she had other trial commitments that prevented her appearance at the hearing. Mrs. Root also said that it was her understanding that Mr. Dilling would be available to try the case in 30 days from September 13.
Because of the fact that the case had been set down for hearing at the place requested by Respondent's Counsel, because of the many continuances at the request of Respondent's Counsel, and because the Government had made necessary arrangements to present its case, the request for a 30-day continuance was denied. However, the case was put over for one day, with instructions to Respondent to advise her attorney that it was imperative that the case go forward on September 14.
On September 14, an associate of Mrs. Root appeared at the hearing and renewed the motion for a continuance. The Hearing Examiner noted that the case had been scheduled for hearing since August 5, and that the trial must go forward. Respondent did not wish Mrs. Root's associate to remain with her in the hearing room, so he was excused and he departed. The hearing then proceeded.
On the previous day (September 13), there had been received in evidence exhibits consisting of an advertisement of Respondent's product which appeared in the July, 1971, issue of Mademoiselle; a copy of an order for the product, together with evidence of the required remittance; and the Trim-Tights "Sauna Girdle" and instructions for exercises to be taken while wearing the garment. (Complainant's Exs. C-1 through C-6)
The advertising material used by Respondent upon which the Complainant based the charges in the complaint is attached hereto as Appendix "A" to this decision.
Complainant charges that by means of Appendix "A", and in similar matter, Respondent makes to the public the following representations, which Complainant alleges are materially false:
"(a) That merely wearing the 'Sauna Girdle' will enable the user to effect 'spot' reduction of the hips, abdomen, waist, and thighs, which reduction will be retained after the garment is removed;
"(b) That any reduction effected by the use of the device as directed will be permanent, absent a material change in the user's health or diet;
"(c) That merely wearing the 'Sauna Girdle' will result in a reduction in weight;"
"(d) That the alleged weight or girth loss may be safely effected by anyone reasonably believing himself physically able to do so;
"(e) That the garment is comfortable for all to put on and to wear;
"(f) That the picture of the garment appearing in Exhibit A attached hereto accurately represents the appearance of same, with all of the impressions this gives the potential remitter as to comfort, efficacy, and any other material considerations involved in purchasing such a product;"
Viewing Respondent's advertisement as a whole and in the light of the effect it most probably would have upon the average person ( Donaldson v. Read Magazine , 333 U.S. 178) it is found that the Respondent makes the representations set forth in the complaint, with the following exceptions:
1. In regard to charge (a), the last portion, which reads "which reduction will be retained after the garment is removed" is too broad and too general. No language of the advertisement, considered in its entirety, conveys this impression and, clearly, the precise language quoted is not used in the advertise- ment. See also the comment in regard to charge (b).
2. In regard to charge (b), there is no language which states, or even suggests, that the results promised from the use of the "Sauna Girdle" will be permanent. In addition to the lack of language suggesting permanency of results, it is a matter of common knowledge that eternal vigilance is the price of freedom from obesity.
3. Charge (d) is, in the first place, an implied representation. In addition, it is an overstatement of what is implied. Respondent cannot fairly be accountable and responsible for what persons believe to be their state of health. There is also to be considered the proposition that if one " reasonably " believes himself to be in good health, there must be medical justification for such belief -- otherwise the belief is not reasonable. If the purchaser's health is good, there is no question as to the safety with which he may wear the "Sauna Girdle". It would not be an overstatement to charge that Respondent represents that the garment is safe for use by all persons in good health. But to allege that Respondent represents that the Sauna Girdle and exercise program may be followed safely by persons with unknown dormant or incipient conditions which may be triggered or aggravated into incidents which produce dire or even lethal results is a complete non sequitur.
4. In regard to charge (e), the picture of the garment in Respondent's advertisement presents a trim, trig figure. If an obese person orders Respondent's garment, he is forewarned that his corpulence must be confined within the small, but elastic, space which the garment will allow. The term "girdle", itself, is suggestive of a confining garment, and this garment is one which fits so closely as to be "Invisible under dress or leotards". The word "sauna" connotes a degree of heat which is above that normally thought of as "comfortable". Thus, the charge that Respondent represents the garment as being "comfortable for all to put on and to wear" is unsupported by the evidence.
Complainant moved, after the hearing, to amend the complaint by adding charges --
(1) "That the wearing of the Sauna Girdle in conjunction with the performance of Respondent's exercises will not effect the claims charged as false in subparagraphs (3)(a) through (3)(c), inclusive"; and
(2) "That the wearing of the Sauna Girdle does not add any material benefit to any weight or girth reduction that might be anticipated from the performance of Respondent's exercises alone".
This motion was predicated on the assertion that these issues were tried at the hearing by the consent of the parties.
Respondent filed valid objection to the granting of the motion and the same was denied.
On January 11, 1972, Complainant moved for reconsideration and reversal of the ruling denying post-hearing amendment of the complaint.
It has been pointed out earlier that Respondent was not represented by counsel at the hearing, so to presume her consent to the trial of issues not stated in the complaint would be highly prejudicial to her interests. While she acquitted herself ably at the hearing, she may not be charged with the responsibility of making every objection which might be raised by experienced counsel. There is no rule of evidence, practice or law which requires the trier of the facts to put this Respondent to such obvious, prejudicial and unseemly disadvantage.
Counsel for Complainant had months of advance time to prepare for the hearing in this proceeding. The charges now sought to be added to the complaint are of such nature that there was prior to the hearing ample time within which tests might have been performed and opinions obtained as to the validity of the claims alleged to be made by Respondent. The time to have made such charges was with the filing of the original complaint. If the denial of the present motion to amend the complaint requires trial of these issues at a later date, let the responsibility for that eventuality fall where it must. But under the circumstances here present, the Respondent is not to be penalized because certain charges were omitted from the original complaint.
As a practical matter, the substance of the second charge sought now to be added is to a great degree included within charge (c) quoted above from the complaint. If Complainant establishes the falsity of the claim that wearing the girdle will result in reduction, such proof will go far towards establishing that the wearing of the girdle will not add any great effect to the reduction in weight or girth hopefully achieved by following Respondent's exercise course.
In any event, upon reconsideration, the earlier denial of the motion to amend the complaint by the addition thereto after the hearing, of two additional charges is affirmed.
Complainant called as an expert witness Robert L. Swezey, M.D., who is well qualified by training and experience to testify in regard to the area of medicine which is involved in this proceeding, and whose testimony is hereafter summarized.
The most common cause of excessive girth of the waist, hips and thighs, is obesity, which, in turn, is usually the result of the ingestion of more calories than are expended by the individual. Excessive girth of the waist is also attributable, to some degree, to weakness of the abdominal muscles. Finally, and to a lesser degree, the retention of fluids brought about by certain patholo- gical conditions, of which cirrhosis of the liver is one example, may produce abnormally large girth of the waist. (Tr. 32-36)
The consensus of opinion is that in order to lose weight one's caloric intake must be decreased to a point lower than his caloric expenditure. Stated another way, the weight reduction method recognized by the medical profession as being the most effective is an offensive, four-letter word -- D I E T. If the protuberance of one's abdomen is due to weak muscles or a pathological condition, then, of course, the removal of these causes will assist in achieving the desired effect of reducing the protuberance.
The wearing of the "Sauna Girdle", without exercise, would not produce any weight loss for the wearer, except, perhaps for some temporary loss of weight that might result from transient fluid loss produced by excessive perspiration while wearing the garment. Because of its constricting effect, the garment would make the wearer appear smaller. It would also tend to push fluid away from the areas covered by it, but that fluid would return to its usual location after the garment is removed. (Tr. 39-40, 47) Similarly, wearing the "Sauna Girdle", without exercise, would not reduce the girth of the waist, hips or thighs. (Tr. 104)
Dr. Swezey made the statement that the wearing of the garment might be hazardous to the user under certain circumstances. Persons with infectious skin eruptions might run the risk of spreading that infection, particularly when the skin is wet worth perspiration or if the garment is worn over a period of several hours or longer. Diabetics have a tendency toward obesity and diabetics tend to be more susceptible to fungus infections. (Tr. 50-51)
Another hazard exists for persons with varicose veins and obese persons tend to have this condition. (Tr. 53, 56) The danger arises when there is in the circulatory system of such person a clot which the tight adherence of the garment would cause to come loose because of the greater accumulation of blood in the veins. The loose clot, or a piece of it, could travel in the veings to the heart or lungs where it could produce a lethal effect. (Tr. 54) This is not a casualty that occurs every day, but it could happen. (Tr. 55)
On cross-examination Dr. Swezey conceded that the wearing of constrictive girdles produced by other manufacturers, assuming the same area of coverage and the same elasticity, would be just as hazardous to the wearer in terms of the spread of infection as the "Sauna Girdle" sold by Respondent. (Tr. 75) Blood clots in persons with varicose veins, particularly persons in active occupations, may loosen and get into the blood stream even though no constrictive garment is worn. This phenomenon could occur as the result of the normal daily activity of such persons. (Tr. 84)
Respondent took the stand and testified that she is a ballet teacher and choreographer. In these capacities she has conditioned various people in the theatrical world to prepare them for appearances they were about to make. In nearly every such instance, the loss of weight from certain areas of the body is involved. (Tr. 129) In connection with this work, Respondent has found the "Sauna Girdle" to be helpful in achieving the desired results. After having designed, tested, used and sold the "Sauna Girdle" for a number of years, Respondent began to advertise the product locally in Los Angeles in 1963. (Tr. 112, 129, 146)
In the year prior to the hearing about 4,500 "Sauna Girdles" were sold, and, since 1963, more than 20,000 were sold by Respondent. (Tr. 204, 257) Several thousand additional garments were sold by wholesalers. (Tr. 258-268) Respondent obtained product liability insurance in 1964-65 covering her sale of the "Sauna Girdle" and no claim has been made because of injury to the user of the garment. In the history of Respondent's business, there has been no such claim.
Throughout her testimony, Respondent made it clear that the "Sauna Girdle" is to be used in conjunction with some physical activity -- ballet or tap dancing instruction or exercises such as those depicted in Exhibit C-6 (A), (B) and (C). (Tr. 161-168, 174-5)
Respondent's next witness was Mrs. Jewell Diehl Serrani, who testified that she began the use of the "Sauna Girdle" in 1963. She had suffered an illness in 1962 which prevented her from taking exercise in any form, as a result of which she "had gotten quite chubby". (Tr. 207) In 1963, after she recovered from her illness, Mrs. Serrani ordered the garment and used it as directed and lost two inches from waist, hips and thighs in about six months. Mrs. Serrani is a dance instructor and she has recommended Respondent's product to an unspecified number of her students, none of whom has indicated that he was not satisfied with it.
The next witness for the Respondent was Mrs. Mildred Lagerberg, the mother of the previous witness. Mrs. Lagerberg had been a dance instructor for 35 years and she now handles the office work in her daughter's studio. Mrs. Lagerberg is an enthusiastic believer in the benefits of Respondent's product, but in conjunction with wear- ing the "Sauna Girdle" she performs exercises such as those indica- ted in Exhibit C-6 (A), (B) and (C) and, in addition, she does exercises that usually accompany the study of ballet dancing.
There was testimony about such matters as the efficacy of the exercise program promulgated by Respondent, but this testimony is not germane to the issues based on the representations found to have been made by Respondent. There was testimony about certain inqui- ries of Respondent's business by the Food and Drug Administration which testimony later developed to be incompetent or irrelevant for a number of reasons. (Tr. 323-325; 335-336)
Upon consideration of the entire record, including the tran- script of the testimony taken at the hearing, the exhibits which were received in evidence and the briefs and arguments of the parties, the Hearing Examiner makes the following findings of fact and conclusions of law.
1. TRIM-TIGHTS MFG., the Respondent, is a business concern located at 6311 Yucca Street, Hollywood, California.
2. Respondent is engaged in the sale through the mails of an alleged reducing device called the "Sauna Girdle".
3. In effecting sales through the mails of the said "Sauna Girdle", Respondent causes advertisements to be placed in various publications having wide circulation throughout the United States.
4. When viewed as a whole, and when judged by the effect they most probably would have upon the average reader ( Donaldson v. Read Magazine , 333 U.S. 178), the advertisements used by Respondent in the sale of the "Sauna Girdle" contain the following representations in substance and effect:
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.
C. That the picture of the garment appearing in Respondent's advertisement (Appendix "A" hereto) accurately represents the appearance of the same, with all of the impressions this gives the potential remitter as to comfort, efficacy, and any other material considerations involved in purchasing such a product.
5. The representations set forth above in Findings of Fact 4A and 4B are materially false. (Respondent's owner admitted that the program she sells contemplates both the wearing of the "Sauna Girdle" and the performing of exercises. (Tr. 294) Furthermore, the expert witness stated as a medical fact that mere wearing of the garment will not produce a loss of weight or girth.)
6. Although it has been found that the representation in regard to the safety of wearing the "Sauna Girdle" is not made as charged in the complaint, some additional comment in regard to this point is appropriate. There was expert medical testimony which is adopted as a Finding of Fact that the risk ascribed to the wearing of the "Sauna Girdle" will be undergone by persons who wear other types of restrictive garments, or even by persons who wear no such garments but who simply go about the normal activities of their daily lives.
7. The representation made by Respondent and set forth in Finding of Fact 4C, except as to such impressions of "efficacy" as one may derive from seeing the picture of the garment, is not materially false. (The matter of the falsity of the representation in regard to the efficacy of the garment to enable the user to lose weight was disposed of in Finding of Fact No. 5. Otherwise, grant- ing that the depiction of the garment appearing in Appendix "A" hereto is an artist's presentation of the garment and not a photo- graph, the actual garment looks strikingly like the representation in the advertisement. The presence of a decorative bow in the advertisement is due to the fact that there was such a bow in earlier production runs of the garment. The bow now is omitted from the garment, and its presence or absence from the depiction in the advertisement is a matter of minimal significance.)
1. TRIM-TIGHTS MFG., 6311 Yucca Street, Hollywood, California, is engaged in the sale through the mails of a so-called "Sauna Girdle" by means of false representations contrary to the provisions of 39 U. S. Code 3005.
2. The Complainant, since it made the allegation during the course of the hearing, had the burden of establishing that representatives of the Food and Drug Administration contacted Respondent after March 2, 1970.
3. Complainant failed to carry the burden of proof indicated in Conclusion of Law number 2.
4. Accordingly, Respondent's objection to the receipt in evidence of Complainant's Exhibits C-17 and C-18 is sustained.
Proposed findings of fact and conclusions of law submitted by the parties have been fully considered. To the extent herein indicated such proposed findings of fact and conclusions of law are adopted; otherwise, the said proposals are rejected because they are unsupported by, or contrary to, the weight of the evidence or because they are immaterial.
A remedial order should be issued against the Respondent pursuant to the governing statute.
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