In the Matter of the Complaint Against WEIGHTMASTER SYSTEMS Box 548 at Tenafly, New Jersey 07670 P.S. Docket No. 1/220; 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 is before the Judicial Officer on Respondent's appeal from an Initial Decision in which the Chief Administrative Law Judge found that Respondent made false representations in the course of soliciting mail orders for a diet plan 1/ consisting of capsules called "Skini-Ettes" and a diet regimen.
The Initial Decision found as charged by the complaint that Respondent falsely represents that "a purchaser of Respondent's product can, through their daily use, lose ten pounds in two weeks." (Initial Decision, p. 8; Complaint, paragraphs IV(1) and V).
The Initial Decision found against Complainant on the other charges. Complainant has not appealed. We are concerned, therefore, only with Respondent's exceptions.
Respondent excepts to the finding allegedly made in the Initial Decision that Respondent made a false representation with respect to the ingredient benzocaine, but the Decision does not contain any finding that Respondent made any false representation with respect to benzocaine. Rather, the Initial Decision expressly held that Respondent made no representation that its product was an appetite or hunger depressant (p. 8). Presumably Respondent's exception is directed toward the following statement on page 6:
"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."
Although this statement may not be indispensable to the conclusion reached in the Initial Decision, it is supported by the record and served as some assurance that the proceeding would not have to be returned for further findings, if on appeal Respondent was found to have made a representation as to benzocaine. It could also have pertinence to the conclusion that
Respondent's product will not assure the user a weight loss of ten pounds in two weeks. In any event, it is not to be expected that a decision given orally will be as tightly constructed as one issued initially in writing.
Respondent excepts "to the finding that it has represented that all persons guaranteed to achieve the weight loss referred to in its advertisement and that such representation is false."
The finding to which this exception is directed is that "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." (Initial Decision, p. 8).
The language in the advertisement on which Complainant relies to show this representation is made is:
"Lose 10 Pounds in 2 Weeks or Your Money Back" and "If you haven't lost at least 10 pounds at the end of a 2 week period let us know and we'll return your three dollars by return mail, no questions asked."
Respondent does not deny that the advertisement makes a representation that the use of the product will enable some persons to lose ten pounds in two weeks. His contention is that it does not promise success to all users.
The Initial Decision concluded with reference to the efficacy of the product:
"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." (p. 7)
"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." (p. 9).
Respondent cites the testimony of his medical expert on the extent of success achievable under the Skini-Ettes program:
"The ten pounds? I think it would depend on the individual again. I think that given someone who was obese, that they stand a good chance of losing ten pounds if they adhere to the recommended caloric intake. I think, like anything else, Your Honor, I think you would find it would be a bell shaped curve. You would find that some would lose more than ten, a few, you would find some, who would lose less than ten and I think the majority of people would come in and around it." (Tr., p. 191, 11. 16-24).
In effect he urges that the Chief Administrative Law Judge should have accepted the testimony quoted over that of Complainant's medical expert. But it is the function of the trier of fact to resolve conflicts in testimony even in the case of a conflict in the testimony of medical experts, 2/ and Complainant's medical expert testified to a much lower rate of success. The
Administrative Law Judge's evaluation of oral testimony must be accepted on review unless it is clearly erroneous. The latter is not the case here. However, in any case the evidence Respondent cites merely purports to show that "a majority of people would come in and around a weight loss of 10 pounds in 2 weeks ." This testimony suggests that a large number of people would fail to achieve the goal. Respondent's objection to the finding is that he says he does not represent success will be universal.
As a subsidiary matter Respondent criticizes the Initial Decision on the ground that it used Respondent's money back guarantee 3/ to support the finding that Respondent represents users will achieve universal success. The criticism seems to be directed solely to the guarantee stated in the text, but its logic would also seem applicable to the headlined refund offer. See page 4 above and page 9 below.
Donaldson v. Read Magazine, 333 U.S. 178, is the landmark decision on interpretation of advertising for the purpose of 39 U.S.C. 3005. 4/ The court described the approach to be used as follows:
"guarantee * * * 1. same as GUARANTY (n. 1 & 3) 2) a pledge or assurance; specif., a) a pledge that something is as represented and will be replaced if it does not meet specifications b) a positive assurance that something will be done in the manner specified" (Webster's New World Dictionary of the American Language, Second College Edition, 1972, p. 620).
"Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such way as to mislead. * * * That exceptionally acute and sophisticated readers might have been able by penetrating analysis to have deciphered the true nature of the contest's terms is not sufficient to bar findings of fraud by a fact-finding tribunal. Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds. * * * People have a right to assume that fraudulent advertising traps will not be laid to ensnare them. 'Laws are made to protect the trusting as well as the suspicious.' * * *" (pp. 188 and 189).
In discussing the application of the law to the case involved the court stated:
"* * * we believe that the Postmaster General could reasonably have concluded, as he did, that the advertisements and other writings had been artfully contrived and composed in such manner that they would confuse readers, distract their attention from the fact that the scheme was in reality an essay contest". (p. 188).
"The Postmaster General found that respondents' advertisements had been deliberately contrived to divert readers' attention from material but adriotly obscured facts. That finding has substantial support in the evidence." (p. 189).
The teaching of Read is that the meaning of advertising representations should be determined from a consideration of the impression the advertisement as a whole would produce in the minds of the ordinary readers.
The effect imputed to money-back guarantees in other contexts is of interest, but cannot be considered controlling here because Read tells us we must determine the impression the advertisement as a whole produces. A copy of the advertisement involved here is attached. 5/ When one looks at it, it is apparent that the advertisement is designed, as the Initial Decision found, to represent that the product advertised will afford the purchaser a means of losing 10 pounds in two weeks. It consists of three physically discreet parts which are in order from top to bottom and from the largest type size to the smallest:
1. The words "Beat the Battle of the Bulge" accompanied by the picture of an obese woman.
2. The words "Lose 10 Pounds in 2 Weeks or Your Money Back."
3. Three short paragraphs of text consisting of 104 words of which 31 or 29% are "If you haven't lost at least 10 pounds at the end of a 2-week period let us know and we'll return your three dollars by return mail, no questions asked."
Thus after catching the reader's attention by the picture and the words "Beat the Battle of the Bulge" the advertisement next draws attention to the loss of 10 pounds in 2 weeks. In this context it is clear that Respondent makes the representation in absolute terms that a purchaser can, through daily use of Respondent's product, lose 10 pounds in two weeks. No other language in the advertisement qualifies the absolutism of the representation.
The situation here is strikingly similar to that involved in the Kelpidine promotion that was the subject of the Pinkus litigation. Pinkus v. Walker, 61 F.Supp. 610; Pinkus v. Reilly, 71 F.Supp. 993, 170 F.2d 786; and Reilly v. Pinkus, 338 U.S. 269. The District Court there described the advertisement in the following terms:
"The advertisements appearing in print contain a picture of a shapely young woman standing beside scales. Each advertisement contains a blank order form in which there is set forth an offer to refund any monies paid, to any dissatisfied user, under what is called a 'Money Back Guarantee'. The advertisements in substance suggest that a user of Kelpidine will lose from three to five pounds a week, without exercise, the use of drugs or adherence to a strict reducing diet. The suggestion is that if the user merely cuts down on fatty and starch foods, and takes a half teaspoon of Kelpidine with any meal, the desired results will be obtained. There are also excerpts from letters of satisfied users, describing the satisfactory results obtained. In essence, all of the advertising contains the same material." (Pinkus v. Walker, 61 F.Supp. 610 at 613).
The court then concluded:
"There was no indication that any of the advertisements held out the suggestion that the reducing plan would effect miraculous results for all corpulent persons, or that all would be similarly benefited. The advertisements in every case contained a money back guarantee which of itself indicated that this was ot a universal remedy for all rotund figures. It is noted that the plaintiff did not undertake the marketing of his product without prior consultation and approval of medical authorities of good repute." (Underscoring supplied). (Supra, at pp. 613, 614).
The Supreme Court took a totally different view of the advertisement. It stated:
"Despite subtle qualifying phrases it is difficult to read these advertisements as a whole without receiving the impression that, contrary to facts justifiably found by the Postmaster General, kelp is a sure and drastic weight reducer". (Underscoring supplied). (Reilly v. Pinkus, 338 U.S. 269 at 274).
The Supreme Court obviously used the same approach there that the Chief Administrative Law Judge did here. I can see no error in the interpretation made by the judge.
The finding in the Initial Decision that Respondent offered his program as one that would enable all persons 6/ to achieve the stated weight loss is supported by the record. The exception is disallowed.
Finally, Respondent excepts to the conclusion of law that he has made false representations warranting issuance of a remedial order pursuant to 39 U.S.C. 3005. For that exception to be sustained, it would be necessary to sustain the second exception. Since Exception II has been denied, Exception III must also be denied.
Upon consideration of the record in this proceeding in the light of Respondent's exceptions, the Initial Decision is affirmed and a remedial order is being issued pursuant to 39 U.S.C. 3005 contemporaneously with this decision.
Adam G. Wenchel Judicial Officer
05/11/73
Wenchel, Adma G.
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1/ the plan, i.e., the capsules and the regimen, collectively, are referred to hereafter
as the "product" or as the "program".
2/ Under the predecessor statute, mail stop orders were authorized only when intent to
deceive was established. Problems of proof of intent to deceive arose under that statute where substantial conflict
appeared in the opinion testimony of medical experts. American School of Magnetic Healing v. McAnnulty, 187 U.S.
94, 104-105. But they were not always insurmountable. Reilly v. Pinkus, 338 U.S. 269, 274. Under the present law
an order is issuable upon a finding that a representation is false whether or not the author of the representation knew
it to be false. See Institute for Weight Control v. Klassen, U.S.D.C. N.J. C.A. No. 1384-72. See also pages 11
and 12 of the Postal Service Decision in Sauna Belt, P.O.D. Docket No. 3/43 (1972). On the other hand, situations
may arise where the Administrative Law Judge may not be able to resolve a conflict on a particular point. Cf.
Initial Decision, p. 6.
3/ Is there any significance to Respondent's characterizing the refund offer as a "money back guarantee"? (Appeal brief, p. 5).
4/ Although the decision actually dealt with the predecessor of today's statute, changes in the law do not detract from its authority.