In the Matter of the Complaint Against BRENTWOOD RESEARCH 1800 North Highland at Los Angeles, California 90028 P.S. Docket No. 1/173; APPEARANCES: Daniel S. Greenberg, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 for the Complainant David M. Brown, Esq. Robert Sarno, Esq. Fleishman, McDaniel, Brown & Weston 6922 Hollywood Boulevard Hollywood, California 90028 for the Respondent
I. Review of the Proceeding.
On September 20, 1972, Complainant filed a complaint charging that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in that its advertising representations by which it induces purchases of the Brentwood Method are false in the following respects:
"(a) that the purchaser's use of the 'Brentwood Method' will create a weight loss of one pound per day until desired weight is reached;
"(b) that loss of weight by the 'Brentwood Method' does not involve dieting;
"(c) that the 'Brentwood Method' is 100% safe;
"(d) that the 'Brentwood Method' provides all the nutrients essential for good nutrition;
"(e) that the 'Brentwood Method' produces a physiological effect upon the body's metabolism;
"(f) that the 'Brentwood Method' tonic is a scientifically sound and effective remedy for obesity; and,
"(g) that the 'Brentwood Method' can be adapted to maintain a weight loss".
Respondent denied that it makes false representations. Pursuant to Respondent's request a hearing was held in this matter in Los Angeles, California. Following submission of proposed findings of fact and conclusions of law and supporting briefs, the Administrative Law Judge entered an Initial Decision recommending issuance of a false representation order against Respondent and upholding the allegations of the complaint. The matter is now before the Judicial Officer on Respondent's appeal. The opportunity for oral argument having been denied, the matter is being determined upon the written record with full consideration being given to the briefs filed.
At the hearing each party presented testimony of a medical doctor who had special qualifications in the field of nutrition as it relates to obesity. In addition Respondent produced a witness with a background in advertising to testify on that subject.
The Administrative Law Judge upon his evaluation of the medical testimony found that the Brentwood Method failed to live up to the representations Respondent made concerning it as he reasonably interpreted the language of the advertising. Respondent contends that the Administrative Law Judge erred in failing to give the testimony of its witness in advertising, Mr. Lester Buhai, the weight it deserved. That testimony dealt with the interpretation of advertising and the degree to which the short fall of advertising claims in the weight reduction field in relation to performance should be overlooked as immaterial because the deficiency is within the generally accepted advertising standards.
On the first point Mr. Buhai took the position that Respondent's advertising would be read with extreme skepticism by obese persons who would discount Respondent's words to the extent that they should be given other than their normal meaning. Thus, presumably "100% safe" really means safe in most cases. The witness based his conclusion largely on a comparison of Respondent's advertising with other advertising in the same field.
It may be supposed that the false representation law should have the effect of changing the mores of the marketplace where competitive pressures have caused promoters to escalate their claims to the level of falsity. As a matter of interest, a review of the dockets of this office show that false representation proceedings have been completed or are pending against seven of the eight advertisers 1/ whose advertisements are included in Respondent's Exhibit R-4 received to show the basis for the witness' conclusion that the advertisement here conformed to the accepted practice of the weight reduction program market. Those advertisements, therefore, do not form a base to support Mr. Buhai's conclusion, even if otherwise pertinent.
II. Treatment of Advertising as Offering of a Booklet For Sale.
Respondent contends here as he did below that he is engaged in the sale of a booklet and that the Postal Service is precluded by the first amendment, United States Constitution, from interfering with the sale of that booklet except insofar as the seller has falsely represented what the booklet says. On the other hand, the Administrative Law Judge concluded that Respondent's enterprise consists of the sale of a plan, program or treatment rather than the sale of a booklet. On that basis he concluded he was free to inquire whether the advertising representations are false because they misrepresent the benefits derivable from the Brentwood Method and, as indicated above, he found in the Initial Decision that Respondent's advertising was in fact false in the respects charged in the complaint.
III. Does Respondent's Advertising Falsely Represent the Contents of Respondent's Booklet?
Before consideration is given to whether Respondent is selling a method program or treatment rather than a booklet and the significance, if any, of the difference, it is desirable to consider whether Respondent makes false representations in the respects charged because the advertising falsely describes what is said in the booklet.
The complaint charges (paragraph 3(a)) that "the purchaser's use of the 'Brentwood Method' will create a weight loss of one pound per day until desired weight is reached". The advertisement states "you can lose a pound a day until you reach the weight you want." The absoluteness of this representation is reinforced by the guarantee attached to the order form (C-4) offering a refund "If the Brentwood Method for Losing Weight is not everything we say it is". However, Report #43 does not itself purport to present a method assuring that each person following the program will lose weight at that rate, only that this is the "usual" loss rate (C-8, p. 13) for persons following the program.
The complaint charges (paragraph 3(b)) that Respondent represents that the Brentwood Method does not involve dieting. Respondent denies he makes that representation. the advertisement contains the following:
"There are no hard-to-follow diets, no pills to take, no gadgets to buy, no calories to count, no exercises."
"We have discovered an amazing tonic which enables you to 'burn up' your excess fat . . . All you do is take this tonic according to our simple directions. There is nothing else to do and nothing else to buy."
"No more impossible-to-follow diets that turn you into a ragged bundle of nerves. No more starving yourself while others feast. Meal time, snack time, party time will no longer be moments of regret - no longer the cause of fat - because now your body will be protected."
When those statements are considered together it is not possible to conclude that Respondent is representing only that the Brentwood Method diet is one that is not hard to follow. Certainly, the meaning is that diets are hard to follow and this method does not require following a diet. Why else is the last quoted sentence included? Of course, the crux of Report #43 is that the way to lose weight is to restrict one's diet to bananas, apple juice and grape juice. This is not only a diet, but a very rigorous one. 2/Again the complaint charges (paragraph 3(c)) Respondent falsely represents the Brentwood Method is 100% safe. The advertisement without qualification represents "this method is 100% safe". Safety of the method is certainly a matter of importance to at least those of the readers who suspect they are subject to incipient illness. The unqualified claim of 100% safety clearly is not borne out by the Report. On page 5 is expressly qualifies the claim. If the Report is taken as true, the advertising representation is untrue because the method is not safe for diabetics, a significant segment of the obese
Accordingly, the representations charged in paragraphs 3(a), (b) and (c) are made and, even if the product sold is viewed as simply Report #43, those representations are false in that they materially misrepresent what that Report states.
IV. Freedom of Speech.
As mentioned above the Administrative Law Judge treated the product involved as the method, plan or treatment. Respondent, of course, assumes the product is a booklet. The significance of the difference is the possible difference in the applicability of the first amendment. 3/ Although requested to do so by the Administrative Law Judge (Tr. p. 181) neither party in his brief supporting his proposed findings of fact and conclusions of law addressed the question of exactly what Respondent's advertising held out for sale and any significance between a finding that a program was being offered and a finding that a booklet was being offered. Similarly, the matter was not addressed by Respondent's brief on appeal to which Complainant made no substantive response. The Administrative Law Judge nevertheless addressed himself to this question and concluded that the product offered for sale was a weight reduction method or program. Presumably, he concluded, and
The first amendment, of course, was intended to restrict the powers of the Federal Government in areas in which it applies. But the claim of first amendment protection must be analyzed to determine whether it reaches the activity in question. On the one hand nonverbal conduct such as the thumbing of the nose may be considered as protected speech. On the other hand verbal expression such as may occur in perpetrating a fraud may be considered as a part of conduct not protected by the first amendment. 4/ This proceeding under 39 U.S.C. 3005 is to determine whether Respondent's commercial advertising contains false representations. "Commercial advertising" is treated by the courts as something apart from protected speech. 5/ The question here as in other false representation proceedings is whether Respondent falsely represents the product it is advertising for sale.
The point is further illustrated by the case of a nonlawyer who draws and sells to others completed deeds and wills. Such activity would be unauthorized practice of law that would be suppressed by the courts despite the claim that the writings are
Respondent's argument for application of the first amendment assumes the product being offered for sale is a book. However, as indicated above, the advertising does not purport to sell a book, but a weight reduction program. In this respect at least the situation is in marked contrast to that present in Parker (P.O.D. Docket No. 3/80) in which the Judicial Officer refused to issue a false representation order covering the sale of the book "Helping Yourself With Food Reflexology" where the advertising did not misrepresent what the book said. There it was concluded that the advertisement though containing some emphasis on the physical benefits to be obtained did in fact seek to interest readers in buying a book as such 6/ and the Judicial Officer concluded that a book and not a treatment being offered to potential customers.
Respondent's advertising is structured so as to sell weight reduction rather than a booklet.
The introductory sentence does not exhort the reader to buy a booklet. Rather it tells him to "try the Brentwood Method". The rest of the advertisement is slanted in a similar manner.
Further, the guarantee placed next to the order blank (Exh. C-4) shows that Respondent is offering weight reduction and not merely a booklet to purchasers. The guarantee offers a refund of money "If you do not lose those extra pounds as promised". The conclusion that a method or program is being offered is supported by the nature of the evidence presented on behalf of Respondent through Mr. Lester Buhai who testified concerning the audience appealed to. A review of his testimony shows that he was talking about an audience composed of persons who might be induced to try the Brentwood Method. He did not suggest that the appeal was in any way directed to potential book buyers.
Except as discussed above Respondent does not deny making the representations charged in the complaint, and upon review of the advertisement I conclude, as did the Administrative Law Judge, Respondent does make those representations. Further, in his able Initial Decision the Administrative Law Judge found that each of those representations to be false in that the Brentwood Method and its benefits are falsely described in the various representations. I have reviewed the transcript and the record and find no reason to reach a contrary result. Accordingly, I adopt the Administrative Law Judge's findings on pages 31 and 32 of the Initial Decision.
Respondent contends that 39 U.S.C. 3005 as applied to him is unconstitutional as contrary to the first amendment. However, the law was upheld against a similar attack in U.S. v. Outpost Development Corp., U.S.D.C. CD Dalif. Civil No. 73-16-FW Memorandum of Decision dated August 23, 1973. In other applications its constitutionality has been sustained in Lynch v. Blount, 330 F.Supp. 689, aff'd 404 U.S. 1007; USPS v. Beamish, 466 F.2d 804.
Respondent's exceptions have been considered and are disallowed and the Initial Decision is affirmed. A remedial order pursuant to 39 U.S.C. 3005 is being issued contemporaneously with this decision.
11/16/73
Wenchel, Adam G.
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1/ Of the 8 enterprises whose advertisements compose R-4, false representation orders have been issued against 3 (New England Labs, Inc., P.S. Docket No. 1/219, Readers Diet Division, P.S. Docket No. 2/29, Figure Sciences, P.S. Docket No. 2/48); advertising has been discontinued or substantially modified under compromise agreements by 3 (European Distributors, P.S. Docket No. 2/35, Vitamin Education Institute, P.S. Docket No. 2/44, 1-2-3 Company, P.S. Docket No. 2/55), one is the subject of a proceeding now pending before the Chief Administrative Law Judge (Joe Weider, P.S. Docket No. 2/96); and the advertisements of one (Ayds) do not solicit mail orders.
2/ Actually it is a diet that Respondent's own expert witness testified would be not only hard to follow but practically impossible to follow for more than a few days.
population, and for those suffering from low blood pressure.
3/ Even assuming Respondent is selling a booklet, it is easy, as Respondent's brief demonstrates, in discussing the first amendment guarantees to confuse the booklet involved with the advertising. However, the first amendment would protect the former but not the latter.
properly so, that fundamental to a number of other issues in the proceeding was the resolution of the nature of the product. The Administrative Law Judge's conclusion is correct.
4/ Justice Holmes' well-known dictum about crying "Fire", Schenck v. U.S., 249 U.S. 47, 52 (1919) is another example.