In the Matter of the Complaint Against NATURAL PLAN DIVISION 1233 E. Las Olas Boulevard at Ft. Lauderdale, Florida 33301 and SUPER C DIVISION 1231 E. Las Olas Boulevard at Ft. Lauderdale, Florida 33301 and SAFE DIET DIVISION 1233 E. Las Olas Boulevard at Ft. Lauderdale, Florida 33301 P.S. Docket No. 1/29;APPEARANCES: Thomas A. Ziebarth, Esq.; Law Department, United States Postal Service, Washington, D. C. 20260 for the Complainant Charles B. Chernofsky, Esq.; 73 Ketewemoke Drive, Halesite, New York 11743 for the Respondent
02/23/73
Wenchel, Adam G.
On March 7, 1972, the Judicial Officer affirmed and adopted an Initial Decision of the Chief Hearing Examiner (now Chief Administrative Law Judge) finding that advertising representations on behalf of Grapefruit Diet Division, 2421 Colee Station, Ft. Lauderdale, Florida 33303, contained false representations substantially as charged in the Complaint theretofore filed and recommending the issuance of a mail-stop order. Accordingly, the Judicial Officer issued Order No. 72-18 with respect to mail directed to the name and address mentioned above.
On January 2, 1973, the Complainant filed a petition relating to mail addressed as shown in the caption above alleging that the provisions of Order No. 72-18 were being evaded by the continuation of the same or substantially similar enterprises under the different names and addresses shown. The petition requested the issuance of supplemental orders in accordance with § 952.30 of the applicable Rules of Practice (39 C.F.R. 952.30). The petition was accompanied by various exhibits in conformity with § 952.30.
The petition alleged the identity of the party involved in the original proceeding with the party conducting the promotions against whom the supplemental orders are sought. It also alleged the substantial identity of the plan involved in the original proceeding with the three plans involved here. Finally, it cited examples of identity of representations contained in the prior advertisement with those contained in the current advertisements. The Complaint, however, did not relate those representations with specific representations found to be false in the prior decision in this proceeding.
In his oral argument Complainant's Counsel did relate the current representations to the representations found earlier to have been false.
Respondent filed a reply to the petition for supplemental mail-stop orders. The reply, except to the extent indicated below, did not deny the promotions covered by the petition were the same or substantially the same enterprise as that involved in the original proceeding under different names and addresses. It further conceded that the Super C Division diet is substantially identical to the original diet offered. The reply, however, asserts that the advertisements of the current diet plans are materially different from the earlier advertisements and that representations found to have been false have been eliminated. Respondent also states that the new Safe Diet Division plan stresses the importance of an eating sequence and consumption of water before meals.
Respondent takes the position that the variances between the items on the three diet plans involved here and the Grapefruit Diet Division plan make them different products. However, the differences are minor and insubstantial. This is clear nor only from an examination of the various diet plans but also from the affidavit (Exhibit J to the petition) and testimony of Dr. Cordaro in this proceeding (Tr. pp. 32-37). He could find no medically significant differences among the various diets. It is clear that the parent organization Neltor, Inc., is continuing the same enterprise under the names now shown in the caption as was previously conducted under the name Grapefruit Diet Division.
The continuity of the enterprises is pointed up by the marked similarity between the Grapefruit Diet Division advertisement and those involved here. The current advertisements are substantially identical to the earlier one except for minimal changes. The thrust of all are the same; namely, that by following the grapefruit diet, the customer can lose 10 pounds in 10 days and that grapefruit is an essential and integral part of the program. Accordingly, I find that each of the three advertisements involved here makes the representation charged in paragraph (3)(a) of the Complaint and found to have been made in the Initial Decision. That representation is:
"(3)(a) That grapefruit is an integral and essential part of the diet regimen and contributes materially to a rapid and substantial loss of accumulated body fat on the part of the dieter".
The foregoing together with the earlier determination of falsity is sufficient to justify the issuance of the supplemental order requested. Nevertheless, it is appropriate to consider whether other representations found to be false are also made.
The representation charged in paragraph (3)(b) of the Complaint is in terms of specific language contained in the original Complaint. The revised advertisements contain language on the same subject but the wording is somewhat different. While the current language may also be misleading, the representation is not in the absolute terms charged in the Complaint. In view of the differences I cannot find the current advertising makes the representations charged in paragraph (3)(b).
The language relied on in paragraph (3)(c) of the Complaint appears in slightly altered form in the present advertising. The changed language, however, is not materially different from that indicated in paragraph (3)(c) of the Complaint. Accordingly, I find that the representation charged in paragraph (3)(c) is made in each of the three advertisements presently involved.
Clearly the Super C Division and Safe Diet Division advertisements represent those diets to be new and different from other diets as charged in paragraph (3)(e). 1/ On the other hand the Natural Plan Division advertising does not expressly represent the plan to be "new and different". I do not find therefore that it makes representation (e).
"A new and different grapefruit diet that really works***" Safe Diet Division
The Initial Decision found that the representations set forth in the various subdivisions of paragraph (3) of the Complaint were made. It also found those representations to be false "with the following exceptions:
* * * * * *
"B. The evidence of record in regard to the safety of following Respondent's diet regimen is that the following of the diet under proper supervision is not dangerous; on the other hand, it is not considered to be likely that all persons who order the diet will consult with their physicians about it and, under these circumstances, or if the diet is followed too long, it becomes hazardous."
The foregoing relates to representation (f) "That the diet regimen is '100% safe'". Despite the fact that the Initial Decision denominates the above finding as an exception to its general finding, it is clearly a finding that the diet regimen is not 100% safe, as represented.
Complainant does not contend the Natural Plan Division is making this representation. However, the Super C Division advertisement expressly represents "Besides, this natural plan is 100% safe". While the Safe Diet Division by its name and by language present in the advertisement represents the diet to be safe, it does not do so in the absolute terms of the language charged in paragraph (3)(f). In view of the finding on page 10 of the Initial Decision quoted above, I cannot hold that the Safe Diet Division advertisement misrepresents the safety of that plan in the respect charged.
Similarly, I find that representation (g) is made by the Super C Division advertisement but not by the other two.
As pointed out above, the three diet plans here are in all material respects the same as the Grapefruit Diet Plan that was held in the earlier stage of this proceeding not to conform in material respects to the representations charged in paragraphs (3)(a)-(c) and (e)-(g).
Respondent argues in effect that the findings of falsity were incorrect in some respects, but arguments of that character were for presentation at the appeal from the Initial Decision, not here. Accordingly, to the extent that, as found above, the same representations are made in the advertisements of the Natural Plan Division, Super C Division and the Safe Diet Division, those representations must be found to be false.
On the basis of the findings made above, I conclude that the party promoting the enterprises conducted under the names and addresses shown above is evading or attempting to evade the provisions of Order No. 72-18 by conducting the same or similar enterprise under different names and at different addresses. An appropriate supplemental order therefore is being issued forthwith.
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