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
 

 08/13/73
 

 Wenchel, Adam G.  

The Initial Decision in the above-captioned proceeding upon the basis of appropriate findings recommends the issuance of a remedial false representation order with respect to Respondent's Health Aid tablets, which are sold as an aid to gaining weight. Respondent takes three exceptions to findings in the Initial Decision.

Respondent's Exception 1 is to "the findings of fact that Respondent's advertisement relates solely to the tablets it offers for sale and that the ordinary reader would disregard Respondent's headline and other statements that its program includes the tablets and a plan." Although Respondent references pages 10 and 11 of the Initial Decision, the listed findings beginning on page 10 do not include the finding relating to the representations since that section of the decision considers the results obtained and not the advertising claims as such. But, in summarizing the decision, the Administrative Law Judge did state expressly:

"* * * 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 * * *." (Initial Decision, p. 11).

At an earlier point, the decision points out the word "plan" as used in the advertisement suggests to the reader only that the capsules are to be taken in accordance with a prescribed plan. The advertisement does not indicate that a dietary regimen is involved. As the Initial Decision states:

"* * * 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. * * *

"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. * * * If the reader di dnotice that word [plan], they would infer that the plan consisted of the schedule of taking the capsules." (Initial Decision, pp. 5 & 6).

Respondent's first exception is disallowed.

Respondent's Exception 2 is to "fidings of fact relating to matters not alleged in the complaint." This exception relates to the judge's allowance of an amendment to the complaint on Complainant's oral motion made at the commencement of the hearing. (Tr. p. 27; Initial Decision, p. 5). Of course an amendment of the complaint at that point could raise a question of whether it was unfair to the Respondent to introduce this issue into the proceeding as late as the beginning of the hearing. Respondent relies on the Departmental Decision in American Image Corp., P.O.D. Docket No. 3/36, October 28, 1970, as follows:

"When a complaint under 39 U.S. Code 4005 is filed, it must be presumed that the Complainant is in all respects ready to go to trial in regard to each and all of the allegations of that complaint. Prior to the filing of the complaint the Complainant has had time to study the case, to prepare for trial, and to anticipate such defenses as may be raised by the Respondent. In view of the resources available to the Government, it would be manifestly unfair to respondents to permit the piece-meal and fragmented trial of administrative cases, except, of course, in cases in which, unlike the present one, (1) the Complainant is taken by surprise by something that could not reasonably have been foreseen or (2) evidence is newly discovered which, despite diligent preparation on the part of the Complainant, is not discovered prior to trial." (pp. 2 & 3).

The language quoted above from the decision cited did not relate to a proposed amendment of the complaint. Rather it dealt with Complainant's request to the Acting Judicial Officer that the proceeding be remanded to the Hearing Examiner to take further testimony after it had been found that evidence adduced at the original hearing was insufficient to support the complaint. The Acting Judicial Officer's objection was to presenting evidence piece-meal, nor to amending a complaint at the commencement of the hearing. I find no error in the allowance of the amendment nor to the Administrative Law Judge's making findings related to the amendment.

Respondent's Exception 3 is that "the findings of fact that the "Too Skinny" tablets will not assist in a weight gaining program, that it falsely represents that the tablets are packed with pounds gaining calories and that the representations made in its advertising are materially and factually false." This exception is another aspect of Respondent's contention that the product advertised includes the dietary plan and not just the tablets. In view of the conclusion reached with respect to the first exception that the product advertised consists of the tablets by themselves it follows that Exception 3 also must be disallowed.

Respondent's exceptions are disallowed and the Initial Decision is affirmed. A remedial order as authorized by 39 U.S.C. 3005 is being issued contemporaneously with this decision.