In the Matter of the Complaint Against A.D.P., A.D.P. COMPANY, Post Office Box 703 at Solana Beach, California 92075 P.S. Docket No. 2/79August 22, 1973 James J. Robertson, Esq., Law Department, United States Postal Service, Washington, D. C., for Complainant No appearance on behalf of Respondent Before: William A. Duvall, Chief Administrative Law Judge
1/ This proceeding was initiated on April 20, 1973, when the General Counsel for the United States Postal Service, through the Assistant General Counsel for the Consumer Protection Office, filed a complaint in which it is alleged that A.D.P. and A.D.P. Company, Post Office Box 703, at Solana Beach, California, are engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of Title 39, U.S. Code, Section 3005.
The substance of the complaint is that the scheme or device being employed by the Respondent is the sale of a diet program which is represented as being capable of producing results far in excess of the results that can actually be achieved by following the diet. The specific charges in the complaint that are laid against the Respondent are found in the paragraph on page 2 of the complaint which is numbered (3), and these charges read as follows:
"(3) By means of said advertisement and others similar thereto, Respondent represents, directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implication:
(a) That an overweight person adhering to the A.D.P. diet will lose twenty pounds in two weeks while maintaining his normal energy;
(b) That the A.D.P. diet was designed by a doctor for the U.S. Women's Ski Team; and
(c) That a person adhering to the A.D.P. diet will be stronger, alert and more agile."
The first matter to be considered is whether the Respondent makes the representations which are set forth in the complaint. The advertisement used by the Respondent is brief, and the language of that advertisement reads as follows:
You could
It outlines your daily menu's [sic] for the two weeks
and, best of all, your normal energy is maintained
while you are shedding those unwanted pounds. To lose
that weight you always said you were going to start
NOW. If you are not happy with the results at the end
of the two weeks your money will be refunded. Send
$2.00 to]
In determining whether the Respondent makes the representations
charged against it in the complaint, one must bear in mind the
holding in the case of Donaldson v. Read Magazine , 333
U.S. 178, a
1948 case, in which the Supreme Court held that advertising
literature is to be considered as a whole and from the standpoint of
the impact that the advertising material probably produces upon
persons of ordinary minds. In a subsequent case, Gottlieb v.
Schaffer , 141 F. Supp. 7, a 1956 case, the U. S. District Court
for
the Southern District of New York, held that in considering
advertising matter, the effect that it would have upon even the
gullible, the trusting, the ignorant, the unthinking, and the
prejudiced is to be taken into consideration.
It does not take much examination of the advertising copy used by
Respondent to see that the charges which are set forth in the
complaint are for the most part lifted verbatim from the advertising
material and repeated in the complaint; therefore, it requires no
stretch of the imagination, no stretch of language, and no arduous
interpretation to reach the conclusion that clearly the Respondent
does make the representations which have been set forth in the
complaint.
The question now presents itself as to whether the
representations found to have been made by the Respondent are true or
false. There was presented as a witness, on behalf of the
Complainant, Dr. Mayer B. Davidson, a medical doctor, who, by virtue
of his education, training, and experience, including the various
researches and studies that he has conducted, is highly qualified to
testify in a proceeding on this subject.
Dr. Davidson testified in substance that obesity, by definition,
is the condition in which an individual has excess weight. The cause
of this condition is the ingestion of more calories than the
individual expends. This condition can arise from certain endocrine
glandular imbalance but that is the cause of only the minority of the
cases of obesity. The treatment for obesity is to limit one's
caloric intake. The objective of this exercise is to create a
caloric deficit which the doctor defined to be the expenditure or use
of more calories than one ingests. The doctor testified in regard to
the diet offered by the Respondent and he, also, did an analysis of
this diet. He stated as his medical opinion that in an unusual
situation, which he defined as a person who weighed over 400 pounds,
the individual might lose as much as 20 pounds in two weeks, but that
this would certainly not be a usual situation.
In order for the user to lose one pound of fat in one week, it
would be necessary for the individual to have a daily caloric deficit
of 600 calories for one week. Dr. Davidson testified that the diet
offered for sale and sold through the mails by the Respondent
produces an average daily caloric intake of 770 calories which would
produce a loss of from one to two pounds per week,
depending upon the energy expended by the individual. It is noted
that two pounds was what the doctor stated as the upper limit of the
range of weight loss.
In regard to the matter of the energy of the individual who
follows the Respondent's diet, Dr. Davidson testified that it is his
opinion that some individuals, possibly, may retain their normal
energy and he emphasized the word "possibly." He gave as his
professional opinion that generally people on such a diet do not feel
as strong as when they are not following such a diet. In short, in
summation of the doctor's testimony, it is that the diet being
offered for sale by this Respondent will not produce for the user the
results which the Respondent promises.
In view of the foregoing considerations, I make the following
findings of fact and conclusions of law:
1. The Respondent, A.D.P. and A.D.P. Company, Post Office Box
703, Solana Beach, California, is engaged in the business of selling
a diet program
2. The Respondent seeks to obtain remittances of money through
the mails.
3. In seeking to obtain remittances of money through the mails,
the Respondent represents:
a. That an overweight person adhering to the
A.D.P. diet will lose 20 pounds in two weeks while
maintaining his normal energy.
b. That the A.D.P. diet was designed by a doctor
for the U. S. Women's Ski Team, and
c. That a person adhering to the A.D.P. diet will
be stronger, alert, and more agile.
4. That representations a . and c ., above, are
materially false
as a matter of fact, and
5. That insofar as representation b ., above, is concerned,
there
is insufficient proof of record in this proceeding to establish the
truth or falsity of this representation.
In view of the foregoing findings of fact, I conclude as a matter
of law that the Respondent is engaged in conducting a scheme or
device for obtaining money or property through the mails by means of
materially false representations as proscribed by Section 3005 of
Title 39, U.S. Code.
The foregoing findings of fact and conclusion of law are
established by the evidence of record in this case which is amply
sufficient to support the issuance of the order. U.S. Health
Club v. Major , 229 F.2d 665, CCA 3 (1961).
A mail-stop order as provided in 39 U.S. Code 3005 should be
issued against this Respondent.
_________________
A.D.P.
P.O. Box 703
Solana Beach, California