In the Matter of the Complaint Against LYDIA FELDMAN 8228 Sunset Boulevard at Los Angeles, California 90046 P.S. Docket No. 1/202; 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
The complaint in this proceeding brought pursuant to 39 U.S.C. 3005 charges Complainant with obtaining remittances through the mails for "My Secret", a program or tonic for use in weight reduction. The false representations Respondent is charged with making are:
"(a) That ingestion of respondent's 'MY SECRET' tonic (hereinafter referred to as the 'tonic') will resut in a loss of weight;
"(b) That said weight loss will be effected regardless of the cause of the user's excess weight;
"(c) That said weight loss requires no dietary restrictions;
"(d) That said weight loss will be permanent;
"(e) That the tonic converts all calories into energy, rather than permitting the formation of fat".
The record shows that persons remitting $5.00 in response to Respondent's advertising for "My Secret" receive instructions as to how to make and use the tonic in question. These are set out in a small booklet of approximately 300 words, including preface and table of contents. A hearing was held in Los Angeles, California, at Respondent's request. After briefs were submitted the Administrative Law Judge issued an Initial Decision recommending issuance of a remedial order as authorized by 39 U.S.C. 3005. Respondent has appealed from that decision. Respondent contends that to the extent he makes them, the representations charged are not false. Respondent also bases much of his argument on the premise that what he is offering for sale is a booklet. But both the Administrative Law Judge and a three-judge District Court that had occasion to consider the matter found Respondent was offering something different. The Administrative Law Judge held the sale to be that of a program of weight reduction, while the court concluded Respondent was advertising a product, i.e., the tonic. 1/ The difference is immaterial since in either case a book is not involved.
The Administrative Law Judge found Respondent made the representations charged, that those representations, except representation (c), are false and further that representation (e) is a claim not made in the booklet. Upon my review of the evidence I find no reason to disagree with those findings and consequently adopt them.
Briefs in the instant proceeding raise the same issues and are the same in large part as the briefs filed in Brentwood Research, P.S. Docket No. 1/173. To the extent that issues raised here are disposed of in the Postal Service Decision issued today in Brentwood, they are not discussed here.
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.
Respondent has applied for a stay of any order adverse to him. That motion is granted to the extent that the Postmaster is being directed to retain at his office for the time being all mail that otherwise would be returned to senders or disposed of as undeliverable under the terms of the order.
11/16/73
Wenchel, Adam G.
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