In the Matter of the Complaint Against CROWN SALES, LTD., and BOX 5000 at Northridge, California 91324 P.S. Docket No. 2/124November 13, 1973
Daniel S. Greenberg, Esq. , Law Department, United States Postal Service, Washington, D. C., for Complainant E. Allen Nebel, Esq., 8665 Wilshire Boulevard, Beverly Hills, California, for Respondent
Before: William A. Duvall , Chief Administrative Law Judge
1/ This proceeding was commenced by the filing of a Complaint on August 17, 1973, by the Consumer Protection Office of the United States Postal Service, in which it alleged that the respondent, Crown Sales Limited and Box 5000, Northridge, California, are engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of Section 3005 of Title 39, United States Code.
The respondent is engaged in the sale of a weight loss program, and the specific representations which the complainant charges the respondent with falsely making are as follows:
A. that ingestion of the Oxford Slim Discs will cause the body to break down fat cells twice as quickly as it would normally,
B. that the Oxford Slim Disc will also cause bulk in the stomach, which bulk will significantly diminish the user's appetite,
C. that the effects described in subparagraphs A and B, above, will enable the user to lose 20 to 100 pounds without having to rely on willpower to reduce his caloric intake,
D. that the aforementioned weight loss will be effected without the user's feeling hunger.
E. that the results charged in subparagraph A through D, inclusive, will be effected even by the compulsive eater,
F. that the formulation of the Oxford Slim Disc differs materially from that of other tablets, pills, and so forth, commonly offered to the public for weight loss, and that said difference in formulation is responsible for the effects enumerated in subpara- graphs A through E, inclusive.
At the outset of the hearing, there were received into evidence, by stipulation, certain exhibits, namely, Exhibit C-1 through C-6, which establish that the respondent's products are advertised in publications that are widely distributed throughout the United States, and that it does seek remittances through the mails; that remittances, in fact, are received, and that in exchange for those remittances, the respondent does mail the product to the remitters. Thus the use of the mails is clearly established by stipulation.
In determining whether the respondent makes the representations which are set forth in the Complaint, there must be kept in mind the rule in regard to interpretation of advertising material, which is found in the case of Donaldson v. Read Magazine, Incorporated , 333 U.S. 178, where the court said that the effect of the advertising material is to be determined by the impact that such advertising material would have upon the average reader. In other cases, that average reader has been described as "unwary and unsuspecting", "those who are trusting", "the ignorant, the unthinking, and the credulous." That description is found in the case of Charles of the Ritz v. Federal Trade Commission , reported in 143 Fed.2d 676.
The purpose of the postal misrepresentation statute is not to punish the person who makes misrepresentations but it is to protect persons who are victimized by such misrepresentations as are made.
Having in mind the criteria established in the decisions which have just been cited, it is clear that the respondent does make the representations which are set forth in paragraphs 2A through 2F of the Complaint.
No lengthy elaboration is necessary in connection with this finding, the finding being apparent to the person who reads the advertising material used by the respondent.
The next question to be determined is whether these representa- tions, which have been found to have been made by the respondent, are true or false.
In connection with this question, the complainant produced, as an expert witness, Dr. Ernst J. Drenick, a medical doctor, who in terms of his education, training, and experience, is well qualified to testify in the area of medicine which is involved in this proceeding. An attempt was made to discredit Dr. Drenick and his testimony because of the fact that in a period of almost 25 years he has testified in various court or administrative proceedings, perhaps a dozen times. While this is not a large number of cases in which to appear as an expert witness over this period of time, such appearances should not be regarded as disqualifying this medical expert, but rather they should be regarded as a recognition of the tribute which others pay to his experience in this field. There is no question as to his expertise in the matter and, as a matter of fact, his qualifications as an expert witness were stipulated by respondent.
As a general matter, Dr. Drenick said that overeating is the cause of obesity, and that the causes of overeating may be psychological or environmental or the result of some organic disease. The treatment for obesity which is recognized by the medical profession involves, in the case of overeating caused by organic illness, to treat and cure such organic illness. In the case of the person who is obese because of overeating from psychological or environmental causes, a cure is to try to provide a regimen which will tend to alleviate or cure those circumstances which produce his overeating. In any event, the objective in treating a person who overeats is to attempt to make him reduce his diet, reduce his intake of food, and to increase his activity so as to increase his caloric expenditure.
Dr. Drenick testified that he had examined the diet prescribed by the respondent and sent in response to a remittance, and he testified that this diet, in and of itself, would produce a loss of weight for the average person because it provides roughly an intake of approximately 1100 calories per day, which is about one half as much as the average female requires to maintain normal weight, and which is about 1500 calories less than is required by the average male to maintain his weight.
Dr. Drenick examined the container of the Slim Discs, which are sold by the Respondent, and stated that there is nothing in the list of ingredients of this product -- which is a round, pink tablet, approximately a half an inch in diameter and perhaps an eighth of an inch thick -- which would contribute in any way to a loss of weight by the person who takes that product. Even assuming, as the advertising material claims, that it contains the ingredients of 300 milligrams of sodium carboxymethylcellulose and as much Vitamin E as is claimed for it, it will not cause the body to break down fat cells twice as quickly as it would normally. Certainly there is nothing in the carboxymethylcellulose which would tend to cause an increased consumption of fat or the breakdown of fat cells, and the inclusion of Vitamin E in the product is of no medical significance one way or the other.
The sodium Carboxymethylcellulose which would tend to cause an increased consumption of fat or the breakdown of fat cells, and the inclusion of Vitamin E in the product is of no medical significance one way or the other.
The sodium carboxymethylcellulose contained in the product, when it reaches the stomach, may be expanded to the extent that it would occupy two or three tablespoons, but that this is not enough to form a significant amount of bulk in the stomach. Even if it did form bulk in the stomach, it passes quickly from the stomach into the gut, so that it would have no lasting, and therefore no significant, effect on the user's hunger.
There is no effect that has been shown to be produced by respondent's product in regard to the appetite of the user.
There is no ingredient in the product, namely the Slim Discs, which would have the effect of enabling the person who takes this product to stay on a reduced caloric diet without the exercise of willpower. The ingestion of this reduced diet, over a long period of time, or over even a short period of time, is a very difficult thing to accomplish, and the accomplishment of this task inevitably will require the exercise of a great amount of willpower on the part of the person who takes the disc product -- or any other product designed for this purpose.
It is elementary that when a person reduces his daily caloric intake by as much as from 1100 to 1500 calories, that person is going to feel hungry, because his stomach is in the habit of receiving more food than that, and he simply will not be able to so adjust his physical system that it can readily accept that great a reduction in food and not suffer a feeling of hunger.
If it is true that Oxford Slim Discs do not assuage appetite and hunger for the average person, it is even more true for the compulsive eater.
Thus far I have dealt with the falsity of the charges set forth in paragraphs 2A through 2E of the Complaint.
In regard to the charge in paragraph 2F of the Complaint, Dr. Drenick said that he did not know whether these Oxford Slim Discs are similar or dissimilar from other pills and tablets that are commonly offered to the public for weight loss. It is true that the respondent's witness, Mr. Cohen, gave some testimony in regard to this matter, but Mr. Cohen was not offered as a medical expert and he did not compare all the ingredients in this product with all the ingredients in all of the other products which he examined. Therefore, I find that there is insufficient proof in regard to this charge to make a finding that this representation made by the respondent is false.
Summing up, on the point of truth or falsity of the representations found and made by the respondent, I find that the charges contained in paragraphs 2A through 2E of the Complaint are false, and that there is insufficient proof to establish the falsity of the charge contained in paragraph 2F of the Complaint.
I have listened carefully to the proposed findings of fact and conclusions of law submitted by counsel for the parties, and to the extent that I have indicated those proposed findings of fact and conclusions of law are accepted; otherwise, those proposed findings and conclusions are rejected for the reasons stated, or because they are contrary to the weight of the evidence, or because they are immaterial.
In view of the findings of facts and conclusions of law, I make the further and ultimate conclusion that the respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of Section 3005 of Title 39, United States Code.
Having so found and concluded, it follows that an order of the type prescribed in Section 3005 of Title 39, United States Code, should be issued against this respondent.
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