In the Matter of the Complaint Against NEW ENGLAND LABS, INC. 2 Belden Avenue, Box 308; Box 651 at Norwalk, Connecticut 06852 P.S. Docket No. 1/219;APPEARANCES:
James J. Robertson, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 for Complainant Herman V. Traub, Esq. 295 Madison Avenue New York, New York 10017 for Respondent
The complaint in the above-captioned matter filed under 39 U.S.C. 3005 charges the Respondent with conducting a scheme or device for obtaining money or property through the mails by means of false representations with respect to its product "New Slim."
The Initial Decision found Respondent makes the representations charged in the complaint and that they are false. Respondent appeals denying that he makes the representations charged and denies that the representations, if made, are false.
The advertisement in its entirety reads:
"Do You Really Want to Lose Weight
"If you don't mind burping or feeling a little gassy, we can probably help you lose weight with the New Slim Plan.
"Even though New Slim time-release capsules cause a slightly uncomfortable, stuffy feeling for some people, they have become our most popular product. (Thousands have re-ordered.)
"They do not contain barbiturates, amphetamines or any havit forming drugs and are completely safe when taken as directed.
They contain 134 mg. of sodium-carboxymethylcellulose, benzocaine and vitamins A, B 1, B2, C and Iron.
"Take one a day. If you do not lose at least 10 pounds within the first 18 days, let us know, and we'll return your money by return mail. No questions. No quibbling.
"If coupon is missing, just send your name, address and three dollars to New England Labs Inc., 2 Belden Ave., Box 308, Norwalk, Conn. 06852.
"The coupon is a mailing label. Please print and trim carefully to insure shipment by return mail."
The complaint charges the advertisement contains the following false representations:
"(1) That the purchaser of Respondent's product can, through their daily use, lose 10 pounds in 18 days;
"(2) That Respondent's product will give its users a slightly uncomfortable, stuffy feeling;
"(3) That Respondent's product is an effective aide to appetite and hunger control;
"(4) That Respondent's product will make a substantial and material contribution to a weight loss of at least 10 pounds in 18 days without the necessity of adhering to a dietary regime."
Charged Representation (1) is based on the antepenultimate paragraph of the advertisement read in the context of the whole advertisement. So read it represents to the potential purchaser an assurance that by taking one New Slim tablet a day he will lose 10 pounds within the first 18 days.
Obviously the reference to "10 pounds within the first 18 days" is intended to establish a standard for determining the efficacy of the capsules. Phrasing the representation as a money-back offer not only does not lessen the representation but in fact reinforces it. It is a statement that all or substantially all users following directions will achieve the indicated result. 1/ Respondent contends that it is selling a dietary plan to which the capsules are a supplement. But the single use of the word "plan" at the beginning of the advertisement does not modify the specific representation that if one takes one capsule a day he will lose 10 pounds in 18 days. In any event the plan described in the advertisement is the taking of one New Slim capsule a day. Respondent does make Representation (1) as charged.
With respect to Representation (2), it is clear that the advertisement does not, as the complaint indicates, represent that all or most users will experience "a slightly uncomfortable, stuffy feeling". The advertisement only represents that "some people" will have that experience. The representation charged, therefore, was not made.
To deny that Representation (3) is made by the advertisement is to deny that Respondent is selling New Slim capsules for the purpose of helping purchasers lose weight. Representation (3) is clearly made.
Respondent argues that some persons by conscientious adherence to the 1,000 calorie a day diet supplied by Respondent might be able to approach a loss of 10 pounds in 18 days. Insofar as Representation (1) is concerned, this argument misses the mark in two directions.
First, the representation charged is not that some persons may be able to achieve the stated weight loss, but that the purchaser, i.e., any person, will be able to do so. Even if Respondent is correct in his argument that some persons may be able to achieve the desired result, this is far less than the representation promises.
Second, as pointed out above, the representation is that taking one of Respondent's capsules a day will produce the specified weight loss. Respondent in effect admits that the result could not be obtained without the conscientious following of the low calorie diet. It must be concluded for the foregoing reasons that Representation (1) is false.
The Administrative Law Judge who heard the evidence had the opportunity both to observe the demeanor of the witnesses and to hear their voices. Such observations not only allow the presiding officer to appraise the credibility of conflicting testimony but also to gain an understanding of the witnesses' meaning that is more accurate than appraisals made on the basis of a written record. I cannot find that the Administrative Law Judge's evaluation of the evidence as to Representation (3) was erroneous.
Representation (4) is substantially like Representation (1). For substantially the reasons given in the discussion of the latter, the findings in the Initial Decision that this representation is made and is false are sustained.
All of Respondent's exceptions have been considered and are disallowed except to the extent indicated above in the discussion of Representation (2). The Initial Decision is affirmed with respect to Representations (1), (3), and (4) and a remedial order under 39 U.S.C. 3005 is being issued forthwith.
08/07/73
Wenchel, Adam G.
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