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 March 16, 1973 David J. Knight Administrative Law Judge James J. Robertson, Esq., Consumer Protection Office, U.S. Postal Service, Washington, D. C., for the Complainant Robert Ullman, Esq., Bass & Ullman, New York City, for the Respondent
By complaint filed October 11, 1972, the Consumer Protection Office of the U. S. Postal Service seeks an order under section 3005 of Title 39 of the U. S. Code1/ which would require mail addressed to the Health Aids Company, the Respondent, at post office boxes are Montvale, New Jersey, and Brooklyn, New York, to be returned to the sender marked as being in violation of the provisions of the cited section. The complaint alleges that the Respondent advertises its product designed to put weight on underweight persons in magazines of nationwide circulation to induce persons to remit money through the mails. The complaint further alleges that the representations made in these advertisements state in substance and effect that the use of the product will enable a person to gain weight, as much as three pounds a week, distribute it in a controlled manner to improve the figure and that the product is packed with pounds gaining calories. These representations are alleged to be materially false as a matter of fact. The allegations concerning the use of the mail and the false represented product are the essential elements of the Complainant's contention that the cited section of the law may be brought into play in that the Respondent is engaged in a scheme or device to obtain money through the mails based on false representations.
On October 30, 1972, the Respondent's answer was filed. It denies that it falsely represents its product but admits to the use of the mail and that the advertisement attached as Exhibit A to the complaint is a true copy of the material employed by Respondent in its business. Finally, Respondent denies the allegations in the complaint concerning its product, stating that the ad speaks for itself with respect to the representations actually made therein.
Hearing was held on December 6, 1972. Respondent was represented by counsel. The only testimony received was through Complainant's medical doctor. The parties stipulated on the record that Respondent uses the mail to solicit orders and receive money for its product. The physical evidence offered and received by agreement was a bottle of tablets labeled "100 Caloric Tablets as a Dietary Supplement" (Exhibit C-1) and a dietary plan specifying the contents of the daily meals and snacks (Exhibit C-2). The parties' proposed findings of fact and conclusions of law were filed by February 9, 1973.
The Respondent's advertising material (attached hereto as Exhibit A) asks the reader if he is "Too Skinny?" Then it advises him that a new scientific discovery would help him put on weight. With the so-called Health Aids Tablets and plan the reader could improve his figure and looks by adding a few pounds and inches in the right places. The ad advises the reader not to be skinny because of bad eating habits and he is told, "Gain as much weight as you like". The safety of the product is guaranteed as is satisfaction or a refund would be made on receipt of the unused portion of the tablets. These tablets are said to be packed with pounds gaining calories, vitamins, iron, minerals and other nourishing ingredients to assist in adding weight. Three testimonials are included in the ad: One person gained 10 pounds in four weeks following the "easy method"; another put on six pounds in two weeks specifically referring to the use of the tablets; and the third gained 24 pounds in eight weeks again specifying the use of the tablets. The price of the tablets set forth in the ad's order form ranges from $4.98 for 100 to $9.50 for 300. Nothing is said in the order form about any "plan" to add weight. The coupon offers only the tablets.
Based on this advertisement, the Respondent offers its product as a "new scientific discovery"2/ and that this language has reference specifically to the tablets offered for sale. While the ad reads in part, "Put on weight with Health Aids Tablets and Plan " and "Don't be skinny because of bad eating habits", the emphasis in the remainder of the ad is that the tablets are the cornerstone of a
successful increase in weight. The only possible reference to any diet required in addition to the tablets is the use of the word plan and the allusion to bad eating habits. But the tablets are said to be packed with those ingredients to help a person put on weight and that the results are guaranteed or a refund would be made upon return of the tablets. Of the three testimonials included in the ad, two refer specifically to the use of the tablets resulting in weight gains and one mentioned "the easy method".
The import of the construction and the wording of this ad is that an increase in weight will result from the use of the tablets and there is limited, meaningless reference to any regimen that would have to be followed in addition to ingestion of the tablets. A similar ad touting a weight loss capsule has recently been construed in the initial decision by Administrative Law Judge John Lewis in New England Labs, Inc. , P.S. Docket No. 1/219, issued March 1, 1973. He, too, found that the use of the word plan once in a seven, short paragraph ad was insufficient to put a reader on notice that this refers to a diet plan. If the reader did notice that word, they would infer that the plan consisted of the schedule of taking the capsules.
I find, then, that the Respondent represents to the public through the publication of the cited advertisement that its tablet will
(1) Allow an individual to improve his figure;
(2) Allow that individual to control the distribution of newly gained weight or, as stated in the ad, "adding a few pounds and inches in the right places"; and
(3) Substantially assist an individual in his attempt to put on weight.
I further find that the ad represents that the tablets are packed with pounds gaining calories and that an individual taking them may expect to gain as much as 10 pounds in four weeks, six pounds in two weeks or 24 pounds in eight weeks as these times and amounts are set forth in testimonials contained within the ad.
In short, I find that the Respondent represents its product as set forth in the allegations of the complaint as amended at the hearing and the evidence does sustain and justify these contentions.
A subscriber to Respondent's ad receives the bottle of tablets and a separate diet plan designing daily meals and between meal snacks. A sentence in the preface (which generally describes the advantages of an attractive build on a man or woman) to the diet plan states, "If your figure is thin, skinny, underweight, due to poor eating habits, new plan and Too Skinny Tablets can easily help solve your weight problem". Thus, for the first time, the subscriber is informed definitely that there is more to gaining weight than the "Too Skinny Tablets", but this occurs after the purchase is completed.
The diet plan sets forth a table showing what men and women at certain ages and heights should weigh. The diet sets out the meals and snacks for each day and a day's intake would include between 4,500 to 6,000 calories. Although that amount is not a matter of record, Respondent's counsel was prepared to stipulate that the daily caloric intake would be within that range (Tr. 42) and for the purposes of this proceeding, I find that the suggested daily diet is of a high caloric content. The evidence shows that the average, daily calories taken in by a normal and healthy person is something less than 3,000. Therefore, following the suggested diet, that type of person would gain weight. However, a person who normally consumes between 2,000 - 2,200 calories palatable. Ingesting those amounts successively could cause nausea and vomiting. However, as noted above, Respondent's advertisement sells the tablets as the miracle worker and the reader is not made aware of the fact that the suggested diet is essential to the program.
The key to putting on pounds is to ingest more calories than the body burns up. Therefore, the diet would be of no benefit to a person whose body uses up all of the calories taken in. But the healthy, normal, underweight person's body would consume probably less than 3,000 calories a day and the diet would put weight on him. To gain one pound a week requires an extra 500 calorie intake a day, 3,500 a week.
But if that person did not follow the diet, the Too Skinny Tablets alone would be of little significance to him. Those tablets consist of the so-called multi-vitamins and minerals which have been known to the medical profession throughout this century. The directions tell the user to take six tablets four times a day. Those 24 pills will provide 180 calories. If an underweight person takes these pills while following his customary diet, it would take him 19.5 days to gain one pound. Over a year's time, that person would gain about 19 pounds.
The foregoing is based on the exhibits and the testimony of a licensed physician and certified by the American Board of Internal Medicine. The doctor testified that a 10 percent change in a person's weight is considered significant. But that there is nothing in the Respondent's product that would enable a person to control the location or the distribution of fat; nor would use of the tablets improve a person's figure. Where it would be located was not developed and the record does not indicate whether it would be in the right or wrong places. The doctor also testified that a deficiency in the vitamin B complex could cause appetite depression; but the amount of these vitamins in Respondent's tablets, providing the minimum daily requirement, would not be sufficient to overcome that depression. Rather, large dosages of the lacking vitamin would have to be administered.
Based on the foregoing, including the parties' stipulations, I find
(1) That the Respondent uses the mail to send its product and receive payment;
(2) That use of the tablets alone without following the suggested dietary regimen will result in added pounds over a period of time at the rate of about one pound every three weeks and that, as a result, an underweight person's figure could be improved ( IV(1) of the complaint);
(3) That while the tablets advertised cannot control the distribution of fat, there is no showing that any added weight would not be in the right place as advertised ( IV(2) of the complaint);
(4) That while the tablets do contain "pounds gaining calories", they are not in sufficient number or effect to produce a quick weight gain which they are advertised to accomplish, and this representation is, therefore, factually false ( IV(3) of the complaint);
(5) That the tablets will not substantially assist in accomplishing a weight gain as represented but rather any gain will be slow and done over an extended period of time ( IV(4) of the complaint);
(6) That a person taking the tablets will not put on the amounts of weight represented in the ad in the form of testimonials, i.e., about three pounds a week ( IV(5) of the complaint); and
(7) That the tablets are not a new scientific discovery to help a person gain weight; rather they are a combination of vitamins and minerals known to the medical profession and their use or particular formation is not a new scientific discovery to put weight on in short periods of time (amended complaint, see footnote 2, supra ).
In summary, I find that the Respondent's advertisement relates to the tablets it offers for sale and the ordinary reader would not be on notice that a high-caloric diet is essential in addition to the tablets, cf., F.T.C. v. Sterling Drug, Inc. , 317 F.2d 669 (1963) at 674-675; that these tablets will not assist in a weight-gaining program to add pounds in short periods of time; and that the tablets are not a new scientific discovery to accomplish quick weight gains. These representations are materially and factually false.
Findings of fact and conclusions of law proposed by the parties to the extent embodied in this decision are adopted. Otherwise, these are rejected as being irrelevant or immaterial.
I conclude that Respondent is engaged in a scheme or device to obtain money through the mail by means of false representations and that an order, in the form attached as provided by 39 U.S. Code 3005, should be issued.
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