In the Matter of the Complaint Against


 SLIMTYME COMPANY at
 Los Angeles, California 90048

 P.S. Docket No. 2/11; 
 

 APPEARANCES:
 Daniel S. Greenberg, Esq. Law Department
 U.S. Postal Service Washington, D.C. 20260
 for Complainant

 Charles B. Chernofsky, Esq.
 One Blue Hill Plaza Pearl River,
 New York 10965 for Respondent

The above-captioned matter is before the Judicial Officer on the appeals of both parties from the Initial Decision in which the Chief Administrative Law Judge found Respondent in marketing "SlimTyme" as a device purporting to produce loss of girth is engaged in a scheme or device for obtaining money or property through the mails by means of materially false representations within the meaning of 39 U.S.C. 3005.

Paragraph 2 of the complaint charged Respondent with making each of the following false representations:

"(a) That the mere wearing of the 'SlimTyme' device (hereinafter referred to as the 'device') will effect:

1. a loss of up to 4 inches from the user's waistline in 5 days;

2. a loss of weight;

"(b) That any loss of girth or weight that may occur will do so without the need for diet or exercise;

"(c) That, alternatively, the 'simple program' will effect the result enumerated in subparagraph 2(a)(1.), supra.

"(d) That the results charged in subparagraphs (a) and (c), supra, will occur regardless of the user's girth, age, health, or physical condition;

"(e) That the 'simple program' may be:

1. easily performed by any user, regardless of age, health, or physical condition;

2. safely performed by any user, regardless of age, health, or physical condition;

"(f) That the wearing of the device makes a significant contribution to reduction of girth or weight over and above that which may be effected by following only the diet and exercise instructions contained in the 'simple program' of which said device is a part".

The Initial Decision found that representations (a), (b) and (e) were not made, that (d) was made only in part and that (c) and (f) were made. It further found representations (c) and (f) to be false.

Respondent has appealed from the findings with respect to representations (c) and (f). Complainant has appealed from the failure to find that representations (b) and (e) were made and to find that they are false.

Respondent in his first exception contends that the advertisement does ot make representation (c). The charged representation is:

"The 'simple program' will effect the result enumerated in subparagraph 2(a)(1), supra";i.e., a loss of up to 4 inches from the user's waistline in 5 days.

The headline of the advertisement reads "Reduce your waistline up to 4 inches in 5 days". The exception with respect to (c) is disallowed.

Respondent contends that representation (f) is ot false arguing that the advertisement represents no more than that the user of SlimTyme will achieve a temporary loss of girth or weight. But the advertisement clearly promises that by following the program the user can make the loss a permanent one. ¹/ Respondent cites the testimony of the medical expert (Tr. pp. 27 and 29) that the device plus exercises will tone up the muscles and add to the reduction of girth on a temporary basis. The testimony is quite to the contrary as shown by the following statement:

"A. No, the exercises would do that. As I said before, the woman who takes her girdle off, flops down immediately.

"If a girdle were to cause toning, or tightening, or strengthening of muscles, every woman who wears a girdle would have a very fine belly." (Tr. p. 29, 11. 13-17).

The exception to the findings with respect to (f) is disallowed.

We now turn to Complainant's exceptions. I agree with the findings in the Initial Decision with respect to representation (b) that the advertisement represents that the results claimed to be achievable by the customer are achieved primarily or in major part by wearing the SlimTyme garment, but that the advertisement also represents exercise to be a part of the regimen to be followed. The advertisement after giving directions for donning the garment states:

"Just follow the simple directions included with 'SlimTyme' for 5 to 10 minute (sic) and relax for 15 to 30 minutes. Take a nap, watch television, read."

Further on it states:

"SlimTyme works on the unique combination principles of isometric and isotonic muscular tension and stress, as well as heat massage."

The foregoing tells the user what to anticipate will be required of him to achieve the claimed results. The 5 or 10 minute period clearly is to be used for some type of bodily activity as contrasted with the rest period that follows. The disclosure is strengthened by the reference to isotonic and isometric muscular tension. As suggested in the Initial Decision the quoted language is not buried, but forms a substantial portion of the advertisement.

On the other hand, the description of the procedure to be followed by the user as well as the description of how SlimTyme is supposed to work is false and misleading because it omits mention of diet restrictions in what appears to be a complete statement as to what the user is to do and how SlimTyme is said to work. It is conceded by Respondent that the diet regimen is integral to and a necessary prerequisite to achieving the results represented. Accordingly, it must be concluded that Respondent falsely represents "That any loss of girth and weight that may occur will do so without the need for diet." It might have been better practice to have separated charge (b) into two parts in the complaint. However, the charge is sustained to the extent indicated.

In (e) Respondent is charged with impliedly making representations as to the safety of the product. The Administrative Law Judge refused to find that Respondent made those representations. Consequently, he did not consider whether the representations were false. Complainant appeals from the foregoing actions.

Since ancient days, Anglo-American law has held sellers of goods chargeable with impliedly warranting the utility of goods sold for the purpose for which they are sold; i.e., an implied warranty of merchantability. The content of the warranty has been found to be broader in some periods of time than others and in more recent years has been held to cover safety. See e.g., Green v. American Tobacco Co., 154 So. 2d 169 (Fla. 1963), and Green v. American Tobacco Co., 325 F.2d 273 (1963).

In my view it is reasonable, therefore, to conclude that in offering a product and program for weight reduction the seller does make a representation as to safety. That, however, is not to say that Respondent here should be chargeable with the specific representation set forth in (e). Since a determination of the question of whether Respondent should be found to have made representation (e) is not necessary to the issuance of an order and because the Initial Decision contains no finding on the falsity of that representation, the instant case does not furnish a suitable occasion for reconsidering the principles on which the Postal Service Decision in Sauna Belt, P.O.D. Docket No. 3/43 held similar representations as to safety charged in that case were deemed to have been made. Complainant's exception, therefore, is denied. In any future case involving a similar question, a more thorough briefing including citations and analysis of authorities dealing with implied warranties and implied representations would be of assistance in reaching a proper result.

Upon review of the Initial Decision in the light of the exceptions of the parties, I find as did the Initial Decision that Respondent is engaged in a scheme or device for obtaining money or property through the mail by means of materially false representations and that a remedial order should be issued against this Respondent pursuant to 39 U.S.C. 3005. Such an order is being issued contemporaneously with this decision.

04/24/73

Wenchel, Adam G.

____________________

1/ "This temporary loss of inches can be yours permanently." See page 6 of the Initial Decision.