Appeal of P.S. Docket No. 2/49 -- R. S. SALES TRIMSOMETRIC


 In the Matter of the Complaint Against

 R. S. SALES TRIMSOMETRIC,
 6311 Yucca Street at
 Hollywood, California 90028

 P.S. Docket No. 2/49

 June 7, 1973

 

 Daniel S. Greenberg, Esq.,
 Consumer Protection Office,
 Law Department,
 U. S. Postal Service,
 for Complainant

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

 Before:  William A. Duvall, Chief Administrative Law Judge

INITIAL DECISIONFINDINGS OF FACT AND CONCLUSIONS OF LAW

This proceeding was initiated by the filing on March 15th, 1973, by the General Counsel of the United States Postal Service, the Complainant, of a complaint in which it is alleged that R. S. Sales Trimsometric, 6311 Yucca Street, Hollywood, CA, 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, Title 39, United States Code.

The substance of the charge of the Complaint is that Respondent is engaged in the sale through the mails of a plan or program which is falsely represented as enabling persons who follow the plan or program to accomplish a loss of girth or weight or both. There were received into evidence certain exhibits which are referred to as follows:

Exhibit C-1 is the advertisement which was used as the basis for the Complaint and it appeared in the publication known as Confidential Confessions, the issue of February, 1973.

That the Respondent is continuing in its business enterprise which is the subject of this hearing, is evidenced by Exhibit C-2 which is an identical advertisement appearing in the June, 1973, issue of the publication Confidential Confessions.

Exhibit C-3 is a Postal Service Form which is used by the Inspector by whom the matter is being investigated, issuing instructions to the Postmaster at a remote place to order from the Respondent the product which is being offered for sale. And there is transmitted with that Form a money order which the Postmaster in the remote location uses to order the product from the Respondent under a test name used by the investigating Inspector.

Exhibit C-4 is the mailing envelope bearing the return address of the Respondent and addressed to Douglas Cheever of Deming, Washington, which is the test name and address used by the investigating Inspector.

Enclosed in Exhibit C-4 were Exhibit C-5, the Spa Suit, Exhibit C-6, the jar of the Swedish Sauna Creme, Exhibit C-7, a booklet which is entitled the Calorie Counter, Exhibit C-8, a booklet entitled Beautify Your Figure, and Exhibit C-9, instructions as to the use of the Spa Suit and the Swedish Sauna Creme.

From these exhibits it is clearly established that Respondent is engaged in the sale of its product, the Trimsometric Spa Suit and the Swedish Sauna Creme.

It is also established that the Respondent undertakes to engage and does engage in this business by means of the mail.

It is also established that the Respondent seeks remittances of money through the mails by means of advertisements inserted in a publication of general circulation in this country.

In the Complaint, the Respondent is charged with making the following allegedly false representations:

"(a) That the wearing of the "Trimsometric Spa Suit' in conjunction with the application of the 'Swedish Sauna Creme' (hereinafter referred to conjunctively as use of the 'program') will effect reduction of the girth of the:

1. upper arms;

2. waist;

3. stomach;

4. hips;

5. derriere;

6. thighs;

7. legs;

"(b) That use of the program will effect a loss of weight;

"(c) That the aforementioned loss of weight will be due to loss of fat tissue;

"(d) That the results enumerated in subparagraphs (a) through (c), supra , do not require diet or exercise;

"(e) That both the wearing of the 'Trimsometric Spa Suit' and the application of the 'Swedish Sauna Creme' make 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 sent with the program."

The determination as to whether in fact the Respondent makes the representations with which it is charged in the Complaint must be based on the consideration of Respondent's advertisement and in considering that advertisement there must be borne in mind the admonition of the Supreme Court in the case of Donaldson v. Read Magazine , 333 U.S. 178, wherein the Court said, in substance, that an advertisement must be considered as a whole and its effect must be determined by the impact that the advertisement probably would have upon persons of average mind.

The most prominent feature of Respondent's advertisement is the depiction of a young couple who appear to be dressed in tight-fitting suits. This young couple is a well-shaped, comely couple who appear to be at the very height of their youth and beauty.

In the upper left-hand corner of the advertisement is the depiction of a bearded gentleman holding his glasses. He is a professional-looking man and he has something in his left hand which is illegible in the copy of the advertisement that I have but, in any event, in a box that goes across the top of the advertisement are words which appear to be spoken by this professional-looking gentleman. These words are "Get the fast results you've always wanted, the Space-Age way]"

Also, as part of this ad are two couples much smaller in size, one of which appears to be a pair of very corpulent people and beneath this couple is a pair of people who are in good trim physical condition with no excess weight or girth.

The advertisement in its language discusses two things primarily. One is the Spa Suit and it is compared to the Swedish sauna bath and the other is the Creme, which is called Swedish Spa Creme. Prominently featured in connection with this Creme is the indication that one of its ingredients is natural vitamin E.

Counsel for the Respondent points out accurately that the words "lose weight" or "lose girth" do not appear anywhere in the advertisement. From this fact Respondent's Counsel argues that there is no representation that the product being sold by the Respondent is a means of losing either girth or weight.

This argument cannot withstand the light of reason because the advertisement, when considered as a whole and in the light of the effect it would normally and naturally be expected to produce on the reader, exudes a suggestion or a promise that the users of this product would achieve substantial results in terms of loss of weight, girth, or both.

In searching this conclusion I have in mind again the case of Donaldson v. Read Magazine , cited above, this time at pages 188 to 189, where the Court said that advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said or because advertisements are composed or purposefully printed in such a way as to mislead, and there the Court cites the case of Wiser v. Lawler , 189 U.S. 260,264 and Farley v. Simmons , 99F.2d 343,346. Keeping in mind these criteria, I find that the Respondent does make, in substance and in effect, the representations which are set forth in the Complaint and which have been quoted above.

There remains the question as to whether the products being sold by the Respondent will achieve the results which the Respondent has been found to promise in its advertisement. In regard to this question there was presented by Complainant the testimony of Dr. Vincent F. Cordaro, a medical doctor who is well-qualified to testify in regard to the field of medicine which is concerned in this proceeding.

Dr. Cordaro testified that obesity, which includes excess girth and excess weight, is caused in 95 percent of the cases by excess caloric intake. The other 5 percent of the cases may be due to hormonal or endocrinal malfunctions. In the latter cases the method of treating the excess weight is to treat the underlying malfunctions. In the vast majority of the cases, however, that is, with regard to the 95 percent of the persons who are obese, the method of treating those persons is by reducing their caloric intake.

The expert testimony in this proceeding is that the wearing of the Trimsometric Spa Suit will have the effect of producing a loss of weight and perhaps some slight loss of girth, neither of which is lasting in nature. The longest period of time which any weight loss that might be produced would be expected to last is a matter of a few hours.

When a person eats or takes fluid, the weight loss that would be caused by the wearing of the Spa Suit would be offset by the regaining of that weight because that is the only kind of weight loss that could be caused by the wearing of the Spa Suit; namely, a loss of body fluid. The loss of body fluid that would be caused by the wearing of the Suit would be general in its nature. It could not be restricted to any particular area of the body and, by the same token, when the weight is regained, there would be a general regaining of the weight that had been lost because the fluid that would be taken into the body would be redistributed to those areas from which it had been lost.

The use of the Creme, which is sold by the Respondent, in conjunction with the Trimsometric Spa Suit has no medical significance whatsoever. The fact that the Creme is prominently billed in the advertisement as containing vitamin E similarly is of no medical significance. These two items used either separately or together would produce no significant lasting weight or girth loss.

Two booklets are enclosed with the material sent to the person who orders the Spa Suit and the Creme from the Respondent. One of these booklets has to do with dieting, since it is described as the Calorie Counter, and the other booklet has to do with an exercise program, and it is entitled Beautify Your Figure. These are mentioned only to give a complete picture of the business operation of the Respondent, because nowhere in Respondent's advertisement is it suggested that these two items will be sent to the purchaser.

There is a paragraph in the advertisement which says "Free if you order now. You will receive not one but two free surprise gifts that could change your life to being permanently slim and trim. Even if you decide to return your purchase, these gifts are yours to keep. What could be fairer?"

The purchaser has no way of knowing what the surprise gifts are going to be. There are no representations made in connection with the surprise gifts so, insofar as this case is concerned, these matters have no real meaning.

Considering the evidence in this case as a whole, I find that the representations heretofore found to have been made by Respondent are materially false.

Counsel for both parties submitted proposed findings of fact or conclusions of law which have been thoroughly considered by me and which have been accepted to the extent indicated in this decision. Otherwise, such proposed findings of fact and conclusions of law are rejected as being contrary to or unsupported by the evidence of record in this case.

I conclude as a matter of law that the Respondent is engaged in a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of Section 3005, Title 39, United States Code.

The record in this case amply supports the findings of facts and the conclusions of law heretofore made, U.S. Health Club v. Major , 292 F.2d 665.

On the basis of all of the foregoing considerations a remedial order should be issued against this Respondent as provided in Section 3005, Title 39, United States Code.