In the Matter of the Complaint Against DIVERSIFIED PRODUCTS CO. Post Office Box 7218 San Diego, California 92107 and SKI TEAM DIET P.O. Box 15493 San Diego, California 92115 P.S. Docket No. 1/75; APPEARANCES: Thomas A. Ziebarth, Esq.; Law Department, United States Postal Service, Washington, D.C. 20260 for the Complainant Edward J. Leavitt, Esq.; Rudick, Levin, Platt & Leavitt, Suite 1600 Security Pacific Plaza, 1200 Third Avenue, San Diego, California 92101 11/30/73 Wenchel, Adam G.
This proceeding is before the Judicial Officer on Complainant's petition for a supplemental mail stop order.
On October 6, 1972, Chief Administrative Law Judge William A. Duvall rendered an Initial Decision upholding most of the allegations of the original complaint which sought a mail stop order authorized by 39 U.S.C. 3005. As no appeal was taken that decision became final, and the Judicial Officer thereupon issued Postal Service Order No. 72-116 directing the Postmaster to return to senders mail sent to Respondent at the addresses previously used relating to the sale of his diet plan sometimes called the "Ski Team Diet Plan". The present petition filed pursuant to § 952.30 of the applicable Rules of Practice 1/ requests the issuance of a supplemental order and alleges that Respondent is attempting to evade the provision of Postal Service Order No. 72-116 in that it is engaging in substantially the same enterprise and making substantially the same representations found in the earlier stage to be false. Respondent filed an answer alleging that differences between the old and new advertising and the old and new diet plans preclude a finding that he is now making false representations with regard to his diet plan.
Respondent also requested a hearing in San Diego, California. Upon consideration of the reasons alleged, the Judicial Officer found them insufficient to hold the hearing in San Diego and ordered the hearing to be held in Washington, D.C., the normal site of hearings.
On the day of the hearing the Judicial Officer received a document in the nature of a supplemental answer which in part took exception to portions of the order setting the hearing and in part briefed Respondent's arguments against issuance of a supplemental order. Respondent, however, did not appear at the hearing either in person or by counsel. Accordingly, Complainant's evidence was taken. The matter at issue was whether Respondent is engaged in conducting either the same enterprise as or an enterprise similar to that at whose mail Order No. 72-116 was directed. The current advertising introduced into evidence, a copy of which was also annexed to the petition, is strikingly similar in major respects to that found to contain false representations in the original proceeding. The current diet plan, although changed in some respects from the earlier plan, is similar. At the hearing Complainant contended that he had established that the current advertising contains the following false representations found in the original proceeding to have been falsely made:
"(1) that by adhering to a diet plan which Respondent alleges he will provide, an individual can lose 20 pounds in 14 days;
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"(4) that an individual who adheres to Respondent's diet plan will maintain his normal energy while reducing;
"(5) that an individual who adheres to Respondent's diet plan will not be subjected to starvation, nor discomfort and that such an individual will always be 'full'; 2/
"(6) that Respondent's diet plan is one which is easily adhered to by all individuals under all circumstances;
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"(8) that Respondent's diet plan does not involve the restriction of caloric intake."
Both the original advertisement and the current advertisement have the headline "LOSE UP TO 20 POUNDS IN 14 DAYS]" and their subheadings are "Famous U.S. Women Ski Team Diet". While there are some modifications elsewhere in the new advertisement, it still purports to promote the same product as the former advertisements. Clearly, Respondent still wants readers to believe they will lose 20 pounds in a fortnight if they follow the "Famous U.S. Women Ski Team Diet" he will provide. The testimony at the original hearing and at the hearing on the petition showed that rate of loss to be unattainable under Respondent's program. Accordingly, the Initial Decision properly found representation 1 to have been falsely made.
The determination that representation 1, found to have been falsely made in the original promotion, is also made in the current advertising of Respondent for substantially the same product, supports the issuance of a supplemental order. It is, therefore, unnecessary to consider the other alleged representations.
Upon consideration of the record in this proceeing, I find Respondent is evading or attempting to evade the provision of Postal Service Order No. 72-116 by conducting the same or similar enterprise under the name Diversified Products Co. at P. O. Box 311, Carpinteria, California 93013. A supplemental order is being issued herewith.
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1/ The applicable rules are set out in Title 39 C.F.R. Part 952.