In the Matter of the Complaint Against WEIGHTMASTER SYSTEMS, Box 548 at Tenafly, New Jersey 07670 P.S. Docket No. 1/220January 18, 1973
William A. Duvall Chief Administrative Law Judge
APPEARANCES: James J. Robertson, Esq. Consumer Protection Office Law Department United States Postal Service Washington, D. C. 20260 for the Complainant Sheldon S. Lustigman, Esq, David L. Ficksman, Esq. 342 Madison Avenue New York, New York 10017 for the Respondent
This proceeding was initiated by the filing on November 28, 1972, of a complaint by the General Counsel for the United States Postal Service, alleging that the Respondent, Weightmaster Systems of Tenafly, New Jersey, is engaged in a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of 3005 of Title 39 of the United States Code.
Specifically, the Respondent is charged with the sale through the mails of a reducing plan comprised of certain capsules and a reducing diet upon the basis of allegedly false representations that the following of Respondent's program as directed will product a loss of weight in the user of at least ten pounds in two weeks.
It appears to me that the Complainant has concentrated in this proceeding on the capsules sold by the Respondent, but to me the product of the Respondent is comprised of two parts, the capsules and the diet plan, so when I use product as a term, that term will be used to mean the combination of the two ingredients, the capsules and the diet plan, unless I specify otherwise.
An answer on behalf of the Respondent was duly filed and the Respondent in that answer admits that it has been obtaining remittances of money through the mails and that it uses as a part of its business operation an advertisement which is identical with Complainant's Exhibit C-1, which was admitted in evidence in this proceeding.
Respondent denies that the representations contained in that advertisement are false. And the Respondent alleges as an affirmative defense that the Complainant is estopped from bringing this proceeding. Nothing further has been received or offered from or by the Respondent in regard to this affirmative defense, so it must be presumed that that defense is abandoned or waived. Nothing further will be said about it in this decision.
The specific representations with which the Respondent is charged are these:
1. That a purchaser of Respondent's product can, through their daily use, lose 10 pounds in 2 weeks;
2. That Respondent's product's ingredients produce sufficient bulk in the stomach to give its user a full feeling and thereby allows its users to avoid excessive caloric intake;
3. That Respondent's product is an effective appetite and hunger depressant.
Each side has presented the testimony of a medical expert in support of its position in this case. The Complainant's medical witness was Dr. Lawrence E. Putnam, who is Board certified in internal medicine. The substance of Dr. Putnam's testimony is that the amounts of benzocaine and sodium carboxymethylcellulose contained in Respondent's capsules are insignificant in terms of producing a reduction in either appetite or hunger. These terms are defined as being the psychological longing for food in the case of appetite, and the physiological desire, craving, for food in the case of hunger. Both parties agree that the other ingredients in the capsules have no effect in regard to the reduction of appetite or hunger.
The Complainant's witness stated that a 1200 calorie-per-day diet would not ordinarily produce a weight loss of ten pounds in two weeks except in the case of an extremely obese person. Complainant's expert did agree that the average person would probably lose approximately two pounds in one week on a 1200 calorie-per-day diet.
Dr. Putnam testified that for some individuals the taking of the capsules of the Respondent would have some "placebo" effect in assisting that person to remain on a diet but that those individuals who would be so affected would be rare.
Complainant's medical expert testified that sodium carboxy- methylcellulose is a hydrophilic substance which does absorb water or liquids when exposed to them and that as a result of this absorption it occupies more space than it does in its dry state. However, in regard to the quantity of sodium carboxymethylcellulose contained in the capsules sold by Respondent, the testimony of Complainant's expert is that this quantity would have a negligible or insignificant effect in terms of filling the stomach or imparting a feeling of fullness.
Testifying as a medical expert on behalf of the Respondent was Dr. Max A. Tesler, who is Board certified in the field of gastronenterology. Dr. Tesler stated that the sodium carboxymethylcellulose contained in the capsules sold by the Respondent is of sufficient quantity to have some effect in reducing the hunger of an individual. He stated that the gelatin capsule in which the Skini-Ettes preparation is contained would dissolve in the stomach and would permit the sodium carboxymethylcellulose to form a gel which would increase the contents of the stomach but he did not say to what extent the volume of matter in the stomach would be increased.
Concerning the benzocaine in the capsule sold by the Respondent Dr. Tesler testified that theoretically, benzocaine could reduce the stimuli to the afferent and efferent nerves to the brain and, therefore, could tend to reduce one's appetite. That statement was made as a general statement in regard to the ingredient benzocaine. Dr. Tesler did not know how much benzocaine would be necessary to produce that effect in the stomach of an individual and he did not know the action of benzocaine in the stomach, whether it dissolves or remains in solid state. In short, Dr. Tesler indicated that he could not state that the benzocaine produced any effect on the appetite of the user as that product is contained in Respondent's capsules.
In this proceeding it has been incumbent upon the Complainant to make out a prima facie case, and that case must be sustained in the face of the evidence brought to bear by the Respondent.
In this case it appears that there is a diversity of medical opinion, as expressed by the witnesses on the stand in regard to the effect of the sodium carboxymethylcellulose and, therefore, I make no finding in regard to that matter.
On the other hand, the Complainant did make out a prima facie case that the amount of benzocaine contained in the capsules sold by the Respondent would be of negligible or insignificant effect on the appetite of the user, and there was no evidence presented by the Respondent which overcame that prima facie case.
After the purchaser has taken the capsules sold by the Respondent, he then proceeds to the diet. The advertisement used by the Respondent does not take into consideration many of the facts testified to by the medical experts in regard to this matter. Both doctors indicated that there is no one reducing regimen which is generally applicable to the entire population. In order to arrive at a satisfactory diet for an individual the different needs and variations of that individual must be taken into consideration.
As I have previously indicated, there is no allowance made for these factors in the advertisements of the Respondent. As a matter of fact, they underscore the universal success that all users of this plan will have by saying that "If you haven't lost at least ten pounds at the end of a two-week period let us know and we will return your $3 by return mail no questions asked." That is pretty strong assurance by the sellers of this product that all those who take it will achieve the desired results.
The medical testimony in this case strongly supports the proposition that such is not the case.
I find as a fact that viewing Respondent's advertisement as a whole and in the light of the effect that it would be most likely to produce in the mind of the average reader, as required by Donaldson v. Read Magazine, Inc. , 33 U.S. 178, Respondent does represent that a purchaser of Respondent's product can, through their daily use, lose ten pounds in two weeks. I find as a fact that this representation is false, and materially false.
In regard to the second charge in the complaint is is obvious from the language employed there that the Complainant leveled this charge solely at the capsules sold by the Respondent. I find that when the term "product" is restricted to mean the capsules sold by the Respondent, the representation is not made.
In regard to the charge that the Respondent represents its product as an effective appetite and hunger depressant, I find that the charge is not made by the Respondent. The capsules are represented as being a preparation "which helps make your stomach feel full" and not that they, in and of themselves, constitute an effective appetite and hunger depressant.
I conclude as a matter of law that because of the misrepresen- tation in regard to the efficacy of the entire product of Respondent, that is, the taking of the capsule and the following of the diet, that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations as proscribed by the provisions of 3005 of Title 39, United States Code.
The effects of false representations persist even though the seller promises to refund the purchase price should the articles sold prove to be unsatisfactory. Borg-Johnson Electronics v. Christenberry , 16 F. Supp. 747 at 751.
There are perhaps, and maybe even probably, some people who would lose weight by following the entire program sold by Respondent but there are many, many people, according to the medical experts, who would not derive the promised benefits in terms of weight reduction from the following of this regimen because, among other things, of its failure to provide for the differences in individuals.
Upon the basis of all of the foregoing an order, as provided in 3005 of Title 39, United States Code, should issue against this Respondent.
____________________