In the Matter of the Complaint Against SLUMBER-SHAPERS, INC., 90 Beacon Boulevard at Miami, Florida 33135 and at 276 Park Avenue, South, Suite 500, New York, New York 10010 P.S. Docket No. 2/20May 8, 1973
James J. Robertson, Esq., Law Department, U.S. Postal Service, for Complainant E. David Rosen and William A. Daniel, Jr., Esqs., of Miami, Florida, for Respondent Before: John Lewis, Administrative Law Judge
This proceeding was initiated by the filing of a complaint by the General Counsel of the United States Postal Service on January 11, 1973, charging the above-named Respondent with conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U.S. Code 3005. In substance, said complaint charges Respondent with having made false representations in its advertising matter concerning the nature and effectiveness of its weight-reduction product designated as "Slumber-Shapers". Respondent appeared by counsel and filed an answer in which it admitted using the advertising, and making the representations, charged in the complaint, but alleged that such advertising had been changed and certain of the representations had been discontinued. Respondent further denied that the representa- tions made by it were materially false.
On motion of Respondent, the place of hearing herein, originally scheduled for Washington, D. C., was changed to Miami, Florida. A motion was also filed by Complainant to amend the complaint herein, so as to allege an additional address used by Respondent in the conduct of its business. No objection having been filed to said motion, it is hereby granted. Following several postponements of the hearing herein, a hearing was scheduled for May 1, 1973. However, prior thereto counsel for Respondent advised the undersigned telephonically that it was not the intention of Respondent to appear at the hearing and that it would file an amended answer not contesting the complaint. Thereafter, Respondent moved for leave to withdraw its original answer and to enter an answer of "nolo contendere to the complaint by which answer [Respondent] neither admits nor denies the allegations contained in the complaint."
Respondent further requested that the order which would issue herein permit it to examine retained mail for a period longer than the 48-hour retention period normally provided for in mail stop orders. Complainant has filed a reply opposing the granting of any additional time beyond the normal 48-hour period.
Respondent's request to withdraw its original answer and to file an amended answer is hereby granted. Since Respondent's amended answer fails to deny the allegations of the complaint, said allegations are deemed proven pursuant to 952.10(b) of the Rules of Practice. It is accordingly appropriate to dispense with any evidentiary hearing and to issue an Initial Decision based on the uncontested allegations of the complaint. Accordingly, I make the following:
FINDINGS OF FACT
1. Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail. Public attention is attracted to said scheme by means of advertisements published by periodicals of nationwide circulation, which are calculated to induce readers thereof to remit money or property through the mail to Respondent. A copy of said advertising matter is attached hereto as Appendix "A".
2. By means of the advertising matter mentioned above, Respondent expressly and impliedly represents to the public, in substance and effect, that:
a. Respondent's product, hereinafter Slumber- Shapers, is a remarkable breakthrough in weight reduction;
b. A user of Respondent's product may reduce or lose weight while sleeping;
c. Respondent's product will take up to three inches off a person's waist, tummy, hips, buttock of thighs in just one week even when used during sleep periods;
d. The indicated weight loss can be achieved without the necessity of strenuous exercises or special diet;
e. Respondent's product isometrically tones up muscles;
f. Respondent's product massages away fatty tissue with every movement;
g. Respondent's product will achieve the indicated weight losses without the necessity of restricting caloric intake.
3. The aforesaid representations are materially false as a matter of fact.
CONCLUSION OF LAW
Respondent has engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations in violation of 39 U.S. Code 3005. Although Respondent has requested a modification in the order normally issued in such cases, it has failed to give adequate justification therefore. Accordingly, it is recommended that an order in the form issued in cases of violations of 39 U.S. Code 3005 should be issued herein.