In the Matter of the Complaint Against WAIST TRIMMER, and P. O. Box 188 at Carpinteria, California 93013 and WAIST TRIMMER, and P. O. Box 3286 at South Lake Tahoe, California 95705 P.S. Docket No. 2/7 April 13, 1973 David J. Knight Administrative Law Judge For the Complainant: Daniel S. Greenberg, Esq. Consumer Protection Office Law Department U. S. Postal Service Washington, D. C. 20260 For the Respondent: Robley Baldwin and Betty Baldwin, pro se P. O. Box 3286 South Lake Tahoe, California 95705
By complaint filed December 12, 1972, the Consumer Protection Office of the U.S. Postal Service (Complainant) charges that Respondents, Robley and Betty Baldwin doing business as Waist Trimmer at two addresses in California, are obtaining money through the mails by means of false representations. Under 39 U.S.C. 3005, it seeks an order requiring mail and money orders--sent to Respondents in response to certain advertisements--be returned to the sender marked as being in violation of the cited statute and would forbid a postmaster from cashing the money order drawn to Respondents' order.
Essentially, the Complainant contends that a certain device advertised as a Waist Trimmer is offered for sale to the general public for $6.95 by the Respondents through the mail. The Complainant alleges that this device is represented in the advertising as able to reduce the waist by two to five inches in 10 days; will cause the loss of weight; and is nylon-lined. These representations are claimed to be false.
The Respondent's answer, filed December 26, 1972, denies that they falsely represent the product. They admit that the advertise- ment complained of is theirs and to the use of the mail. Basically, their defense is that Complainant's interpretation of the ad is unwarranted and unreasonable. With the answer, the Respondents moved for a change in the place of hearing from Washington, D. C., to South Lake Tahoe, California. This motion was granted in part and, on January 3, 1973, hearing was ordered at San Francisco, California.
Up to this point, Respondents were represented by counsel. But they appeared at the hearing on January 25, 1973, and defended themselves through cross-examination of Complainant's witness and testifying on their own behalf without the aid of counsel. Both parties filed post-hearing requests by March 2, 1973.
To support the issuance of order sought under 39 U.S.C. 3005, it must be found:
(1) That Respondents obtain money through the mail;
(2) Whether the ordinary reader1/ would find those representations as set forth in the complaint;
(3) If so, whether those representations are factually and materially false.
(1) Concerning the use of the mail:
The parties stipulated into evidence certain documents that would have been verified by a U.S. Postal Inspector. These include:
(a) Two advertisements for the Waist Trimmer which appeared in the Ladies Home Journal in the September and November 1972 editions (Exhibits C-1 and C-2);
(b) The Postal Inspector's response to the ad under a pseudonym including a money-order stub he sent in the amount of $6.95 (Exhibits C-3 and C-4); and
(c) The Waist Trimmer accompanied by a single sheet of thanks and instructions (Exhibits C-5 and C-7) received by the Inspector.
This evidence coupled with the admissions in Respondents' answer support the finding that the mail is used by Respondents to solicit and receive money and forward its product as the normal manner in which it does business at both addresses noted in this proceeding's title.
(2) Concerning the Respondents' representations in its advertisement, attached as Appendix A:
The ad is small measuring about 2 1/2" x 2 1/2". A headline at the upper quarter reads, "Be a winner with Waist Trimmer." The left hand is apparently a picture of Miss California of 1968 wearing a bikini and the Waist Trimmer.
The text itself is short enough to be read practically at a glance. Miss California reveals the secret of losing inches from the waistline area fast. Simply wear the Waist Trimmer which is not detectable under the clothing while doing the daily activities including sleeping. For even faster reduction, the user is told to wear it while golfing, gardening or jogging. Then appears the clause, "Lose 2" to 5"." The article is said to be durable and nylon lined, won't roll or wrinkle and the reader is told to send for it and watch the inches melt away. The ad concludes with, "10-day money back guarantee."
Based on this ad, Complainant alleges that Respondents represent to the public that wearing the Waist Trimmer a person will a) lose two to five inches in 10 days; and b) lose weight.
Also that the article is held out to be nylon-lined. Complainant deems these representations to be material to the ad and false.
Respondents contend that there is no relationship between Lose 2" to 5" which appears in the middle of the ad and the 10 day money back guarantee which is the ad's closing statement and, therefore, the Complainant's interpretation of the ad that a user will lose two to five inches in 10 days is unreasonable.
Taking the ad as a whole, the Complainant's reading is not unwarranted. The article is held out as a way to lose inches fast. This is to occur in the course of one's ordinary, daily activities and even faster if some mildly strenuous action is undertaken like golf or gardening. The inches are said to melt away. Thus, a user, according to the ad, would see a difference of being at least five inches less around and this may reasonably be expected within 10 days. The guarantee is an assurance to him that this will come about in that time frame.
The ad speaks in terms of losing inches and nowhere mentions weight of any kind. Complainant contends that the ad represents that a user will lose weight. Respondents argue that inches are lost and the ad does not say that the user will lose weight. They offered proof that use of the garment would result in some bulk loss and maintain that proposition in their post-hearing filings.
I find that the ordinary reader would equate a reduction in terms of inches with a reduction in pounds or weight. This would follow, reasonably or otherwise, from the words in the ad, "... lose inches from the waistline and abdomen fast]", "... watch inches melt away]", and "... For even faster reduction wear it while ..." The reader is told that his waist will occupy less space after using the garment than before and concomitant to that is that he will also weigh less. The ad represents to the public that the proffered garment is useful in attaining a weight loss.
The final alleged representation is that the garment is nylon-lined. This is a direct quote from the ad and I find that it is made.
(3) Concerning the falsity of these representations:
The Waist Trimmer was introduced in evidence together with instructions for its use and care (Exhibits C-5 and C-7). The garment consists of two pieces of closed cell neoprene sponge, 15 1/2" long and 10" wide, backed onto 100 percent nylon, all of which stretches. These pieces are sewn together at their edges to form the girdle-type garment, slightly indented at the middle of the seam. The neoprene 2/ is the same substance used in survival suits or wet suits worn by some divers (Exhibit R-1, R-2 and R-3).
The Complainant's witness, a medical doctor practicing since 1941 and presently employed by the Food and Drug Administration as a Medical Review Officer, testified that the garment would cause the body to give up fluid by perspiring. The garment creates heat in the area it covers.3/ The amount of heat would depend on -- among other things -- the temperature of the user's environment.
If the perspiration was sufficient, weight would be lost but not girth. It would not result in the loss of fat but fluid. Fat would be lost by taking in less calories than a person's daily requirement. And whatever fluid would be lost would be replaced by the body within hours upon the taking of any food or drink. Further, the fluid loss would not necessarily be from around the waist. According to the doctor, the body does not selectively give up its fluid.
On cross-examination the doctor would not retreat from the position that Waist Trimmer could cause the body to lose some of its fluid but that this would be replaced rapidly. Any weight reduction would result from the temporary fluid loss.
The Respondent Robley Baldwin testified that he has very little muscle in the abdominal area as a result of polio striking him 20 years ago. Using a garment similar to Waist Trimmer while lifting weights, he reduced his waistline by five inches over a 10 month period. At the same time though, he did not restrict his diet. His theory is that the heat generated by the garment is a form of energy which, in turn, is derived from the body. The body gives up either its fluid or fat to create or be transformed into heat.
Betty Baldwin testified that her entire family uses Waist Trimmer and it works. Of all of her customers, about two-tenths of one percent have ever expressed dissatisfaction.
Based on this evidence, I find the ad's representations that a user of the Waist Trimmer will (a) lost up to five inches within 10 days and (b) that he will lose weight are false. In conjunction with strenuous exercising as done by Mr. Baldwin, it may be possible to increase the rate of loss caused by the exercise. But merely wearing it during the ordinary activity or slightly more will only cause a greater rate or perspiring and a resultant bulk loss of fluid. But even that would be rather quickly replaced by the body's normal mechanism and any loss, therefore, would be ephemeral. I have no doubt that Respondents honestly believe in the efficacy of their product but, in the face of the medical testimony, there must be something more to reducing somewhat permanently the waist band than wearing the Trimmer as directed. In a series of similar cases, 4/ that has been the general conclusion.
Complainant interprets the ad's statement that the Trimmer is nylon-lined to mean that the nylon side would come in contact with the body. In fact, the synthetic rubber is the inside against the skin and that rubber is nylon-backed. I find that the present construction of the garment (at one time the nylon was the inside)
does not affect its durability and this allegation has not been sustained. In any event, it would not amount to a material misrepresentation.
The credible evidence is that the Waist Trimmer will not accomplish the results for which it is advertised for sale. I must conclude then that the Respondents -- in the words of the statute -- are obtaining money through the mail by means of false representa- tions despite their obvious lack of any intent to deceive.
Proposed findings and conclusions of the parties are adopted to the extent these are embodied in this decision. Otherwise, they are rejected as not supported by the evidence.
I recommend that an order under 39 U.S.C. 3005, in the form attached, be entered.
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1/ The effect of an ad must be judged on how the ordinary
reader sees it, Donaldson v. Read Magazine , 333 U.S. 178. That
"reader" is not particularly sharp in the eyes of the law, F.T.C. v.
Sterling Drug, Inc. , 317 F.2d 669, 674.
2/ An oil resistant synthetic rubber made by ploymerizing
chlorophene. The American College Dictionary , Random House,
Inc. (1968).