In the Matter of the Complaint Against

 HEALTH AIDS COMPANY
 P. O. Box 406 at
 Montvale, New Jersey 07645 and
 Box 1 Rugby Station
 Brooklyn, New York 11203

 P.S. Docket No. 1/188; 

 APPEARANCES:
 James J. Robertson, Esq.;
 Consumer Protection Office, Law Department,
 United States Postal Service,
 Washington, D.C. 20260

 Robert Ullman, Esq.; Bass & Ullman,
 342 Madison Avenue, New York,
 New York 10017

Following the issuance of a Postal Service Decision in the above-captioned proceeding finding Respondent to have made false representations in the marketing of its Health Aids tablets, Complainant moved to add an additional address to the mail stop order issued with the Postal Service Decision. In support of the motion, Complainant furnished a copy of a new magazine advertisement soliciting mail orders at a new address. Respondent has replied asserting that modifications have so altered the advertisement as to eliminate the representations found to be false.

The matter is now before the Judicial Officer for decision on the pleadings and oral argument heard on November 14, 1973.

Respondent advertises that in effect the use of its product will result in substantial weight gains in a short period of time. Although Respondent contended that his enterprise consisted of selling a diet plan with supplemental tablets, the tablets were found in the original proceedings to be the product Respondent offered for sale in his advertisements and certain representations Respondent made with respect to that product were found to be false. The question to be determined on the pending motion is whether Respondent's new advertising appended to the motion makes the representations found to have been falsely made with respect to substantially the same enterprise. This posture, of course, makes the scope of the present inquiry much narrower than if Complainant had chosen to institute a separate independent proceeding with respect to the current solicitation.

At the hearing on the option it was ascertained that Complainant is relying on the contention that the present advertising still makes two representations found to be false. Those are charged in the complaint in the following language:

"(3) That Respondent's product is packed with 'pounds gaining calories'.

"(4) That Respondent's product will substantially assist its users in their attempts to put on weight."

In effect it was found earlier that Respondent falsely represented as charged in paragraph IV(3) that the tablets are packed with pounds gaining calories and as charged in paragraph IV(4) that the tablets will substantially assist users in their attempts to put on weight.

The original advertisement represented that "Health Aids tablets are packed with pounds gaining calories". In the new advertisement the comparable language is "Health Aids diet plan is packed with pound-gaining calories".

The representation charged in (3) is quite specific and obviously is founded on the language quoted. That circumstance is not sufficient to equate a statement that "Health Aids diet plan is packed" with a statement that "Health Aids tablets are packed". Accordingly, Complainant has not shown that Respondent's new advertisement makes the representation in question in the new advertisement.

Respondent contends that as a result of the shift in the emphasis in the advertising he must now be regarded as offering a diet plan and supplemental tablets for sale. While that is substantially the same contention he made with respect to the original advertising, sufficient changes have been made to warrant serious consideration of the contention.

Although as noted above, Respondent's advertisement has been modified to give prominence to the diet plan, the new advertisement nevertheless continues to represent that the Health Aids tablets will substantially assist users in attempting to put on weight. It exhorts the reader to "Put on weight with Health Aids Plan and Tablets". It also asserts that "Specially formulated tablets contain nourishing ingredients including vitamins, iron, minerals and fats." (Underscoring supplied).

The first quotation clearly suggests that the tablets furnish important, if not indispensable, assistance in the attempt to put on weight. The underscored words in the second quotation clearly imply the tablets will make a substantial contribution to the weight gain of 5 to 8 pounds represented to be achievable in 3 weeks. Moreover, repeated references to the tablets elsewhere in the advertisement reinforce the representation that the tablets materially assist in the weight gain program. It is agreed that taken as directed the tablets would contribute only slightly more than a pound of the weight gain of 5 to 8 pounds in 3 weeks represented to be achievable. Accordingly, while the amount of weight gain claimed to be achievable is slightly reduced, I must find that the tablets do not as represented substantially assist in attempting to put on the weight the advertisement represents will be achieved. Consequently, I conclude that Respondent's new advertising makes representation 4.

The motion to amend is granted. The remedial order under 39 U.S.C. 3005, Postal Service Order No. 73-98, will be amended to include mail addressed to Respondent at P. O. Box 412, Montvale, New Jersey 07645.

12/11/73

Wenchel, Adam G.