In the Matter of the Complaint Against FIGURE SCIENCES (Suite 22), 9601 Wilshire Boulevard at Beverly Hills, California 90212 and BEAUTY SCIENCES, 6000 Sunset Boulevard at Hollywood, California 90028 P.S. Docket No. 2/48 May 15, 1973 Thomas A. Ziebarth, Esq., Law Department, U.S. Postal Service, for Complainant Sidney Schreiberg, Esq., of New York, New York, 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 March 14, 1973, charging the Respondent named therein with conducting a scheme or device for obtaining money or property through the mails by means of false representations, in violation of 39 U.S. Code 3005. In substance, the complaint charges the Respondent with having made false representations concerning the nature and effectiveness of its product designated as "Iso-Wrap" and the Iso-Wrap Method" or "Process" in achieving the loss of various amounts of inches from the body. Respondent appeared by counsel and filed answer in which it denied, in substance, the making of the representations alleged or the falsity thereof.
Pursuant to notice duly given, a hearing for the reception of evidence was convened on April 13, 1973, in Washington, D. C., before me. Both parties appeared by counsel and were afforded a full opportunity to be heard and to examine and cross-examine witnesses. Counsel for Complainant called one witness, a physician, through whom he sought to establish the falsity of the representations allegedly made in Respondent's advertising matter. The advertising matter itself was stipulated to be authentic, and such advertising matter and the products were received in evidence by agreement. Counsel for Respondent elected not to offer any testimony or any other evidence, but relied upon the cross- examination of the Complainant's medical witness as establishing the failure of Complainant's counsel to establish a prima facie case, and also upon the failure of the advertising matter to contain certain of the representations alleged in the complaint.
At the close of the hearing, counsel for Complainant, pursuant to a motion for an oral decision filed April 6, 1973, requested that an oral decision be issued. Such a motion was granted, over objection of counsel for Respondent, on the ground that a timely motion for such a decision had been filed and that, in addition thereto, the nature of the case and the public interest justified such a decision. Oral argument was permitted to counsel concerning the sufficiency of the evidence to establish the allegations of the complaint.
After having carefully considered the evidence in this proceeding, and based upon the entire record, including the complaint, the answer, the exhibits and the testimony of Dr. Cordaro, I make the following:
FINDINGS OF FACT
A. The Alleged Solicitation of Money Through the Mail
1. Respondent is engaged in the business of selling a product and process known as "Iso-Wrap". Public attention is directed to said product and process by advertisements inserted in publications of general circulation and by direct mail advertising.
2. Readers are directed or invited to order Respondent's product by an order coupon attached to the advertisement. The record establishes that Respondent does, in fact, obtain money through the mail from customers who, pursuant to the invitation made in the advertisements, order the Iso-Wrap product through the mail. Respondent does, in fact, ship such products through the mail in response to orders from customers who respond to its advertisements.
B. The Alleged Representations
3. The offer to sell Respondent's product is made in various advertisements, copies of which have been received in evidence in this proceeding as Complainant's Exhibits 1, 2, and 3, copies of exhibits 1 and 2 having been attached to the complaint and are attached hereto as Appendices "A" and "B". These advertisements contain a number of statements concerning the ability of Iso-Wrap to achieve various losses from various portions of the body in various periods of time.
4. The complaint alleges that through the use of the advertisements in which Respondent seeks remittances of money through the mail, it makes various representations to potential customers concerning the effectiveness of its product and method. From a review of the advertising matter which is in evidence I find that the ordinary individual reading such an advertisement would interpret them as making the representations, substantially, as set forth in the complaint, which representations are incorporated herein by reference as if they were fully set forth. In substance, the representations made in such advertisements are that (a) Respondent's product and method, known as "Iso-Wrap" will enable the user to achieve a loss of 20 inches from the user's body within the first 90 minutes, and reduce inches in specific areas of the body; (b) obese persons can achieve any desired cumulative loss on any part of the body through the use of this process three times a week during the first week, and twice a week thereafter, until the desired result is achieved; (c) the Iso-Wrap process will result in actual removal of inches of fat over some time period, unlike fluid loss methods otherwise used, where the user can gain back weight the same day; (d) the use of the Iso-Wrap process will remove double chins, creases, wrinkles and sagging chin lines, by causing fatty pockets to disappear in areas about the face, throat and chin; (e) the user will be able to maintain his or her loss by using this process once a week, after desired inch loss has been achieved; (f) the Iso-Wrap process will accomplish the advertised results without the need for dieting, exercise, pills, or harmful drugs; (g) the user can eat as much as desired and still remain thin; (h) the Iso-Wrap method is substantially identical with methods utilized by exclusive "figure-contouring" salons; (i) the results obtained from the use of this process have been favorably reported in various well0known publications; and (j) the Iso-Wrap process is completely safe and the chemical used in conjunction with the wrap is non-toxic, even if taken internally.
C. The Alleged Falsity of the Representations
5. It is my finding that the uncontradicted and credible testimony of Dr. Vincent Cordaro establishes that the representa- tions made by Respondent, as heretofore found, are materially false, except to the extent hereinafter noted. While Dr. Cordaro has not tested this particular product, he has shown sufficient familiarity with it and sufficient knowledge of such products and methods to warrant his testimony being given credence in the absence of countervailing medical expert testimony or other testimony of such a nature as to justify disregarding his testimony.
a. The Inch-Loss Representation . In essence, Respondent has represented that persons who use its product and method will achieve a permanent or semi-permanent loss of as much as 20 inches from the user's body within the first 90 minutes, and various other reductions from specific areas of the body, and that such loss is more than temporary and will not be gained back the same day. Furthermore, that an obese person, by using this process three times a week during the first week, and twice a week thereafter, will achieve a loss of as much as desired. In addition, that favorable results can be achieved in the areas of the face, throat and chin. Dr. Cordaro's testimony establishes that this method of wrapping the body or various portions of the body with Respondent's product, which is in effect a bandage that has been heated in a solution of epsom salt and table salt, will not achieve any extensive or extended loss from the body. Respondent's product, which is sold as a kit, consists of one bandage which, if applied to a limited area of the body, will be unlikely to result in any significant loss in inches. In order to achieve any measurable loss from the use of this method, it would be necessary to use a number of Respondent's wraps, and even in that event the loss achieved would be unlikely to amount to as much as a total of 20 inches from the body within the first 90 minutes, or any other particular period of time. Any loss achieved would be a loss of body fluid, and would be temporary, since the fluids would be replaced by normal blood circulation and the ingestion of food. It is not possible to lose weight or inches on any type of a permanent basis without some type of dieting and exercise. What Respondent's method does essentially is to squeeze out the fluid in the particular area of the body where it is applied, but such loss of fluid is a temporary phenomenon and with the regaining of the fluid, the person will regain whatever inch loss has been achieved. In order to achieve any permanent type of weight or inch loss, there must be a loss of fat and not merely of fluid. Respondent's method does not permit of any cumulative inch loss by virtue of a repetition of a process. Whatever inch loss is achieved by applying the process on any occasion is regained by normal body processes, and will not be retained and added to by subsequent uses of this method.
b. Removal of Double Chins, Creases, Wrinkles, and Sagging Chin Lines by Causing the Fatty Pockets to Disappear . The application of Respondent's Iso-Wrap bandages will not have the effect of removing double chins, creases, wrinkles, and sagging chin lines, but will merely result in an accentuation of any existing creases or wrinkles by squeezing out the body fluid in the area in question. Furthermore, once the bandages are removed, the fluid will return and the areas in question will resume their former appearances.
c. Respondent's Process as Identical to Methods Utilized by Salons . The method used in figure-contouring salons involves essentially the wrapping, in elastic bandages, of extensive parts of the body. Respondent's method differs in that, essentially, it involves the sale of a single bandage. Although the literature received with the order indicates that further bandages may be ordered, the need for using additional bandages is not revealed in the advertisements.
d. Results Obtained Have Been Favorably Reported in Various Publications . The complaint charges that Respondent's Iso-Wrap shrinking process has been favorably reported in such publications as the San Diego Independent, Women's Wear Daily, TV Guide, Vogue Magazine, Time Magazine, Harper's Bazaar Magazine, and True Story Magazine. The only publications offered in evidence by counsel for Complainant were the San Diego Independent and Time Magazine. Since no evidence of the contents of the remaining publications was offered, the allegations with respect thereto were stricken on motion of counsel for the Respondent. Insofar as the San Diego Independent and Time Magazine are concerned, the process involved in the articles appearing in such publications revolves essentially around extensive body-binding similar to that used in salons, and not the spot-type of binding which is contemplated by Respondent's method.
e. Safety of the Product . As has been heretofore found, the representation is made that the process is safe and that the chemical used is non-toxic and harmless, even if taken internally. Insofar as the process is concerned, namely the use of the wrap itself, while the evidence establishes that the product is unsafe, except to the extent that the bandage may be wound too tightly. However, there is no substantial evidence that there is any substantial likelihood that this will occur, or that there is any substantial danger from this procedure. Insofar as the chemicals are concerned, namely epsom salts and table salt, Dr. Cordaro's testimony establishes that the ingestion internally of the epsom salts is toxic and is harmful. If a person were to ingest as much as one-half of the bag of crystals which are sold with the wrapping, it could result in a fatality.
6. For the reasons previously stated, it is found that the representations made by the Respondent are materially false as a matter of fact.
CONCLUSION OF LAW
Respondent is 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. It is accordingly recommended that an order in the form provided for in 3005 of 39 U.S. Code should be issued.
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