In the Matter of the Complaint Against BEAUTI-BREAST OF PARIS, Post Office Box 3725 at Beverly Hills, California 90212 and 2875 Bates Road at Montreal, P.Q., Quebec, Canada P.S. Docket No. 1/140September 18, 1974
William A. Duvall Chief Administrative Law Judge
APPEARANCES: Robert Ullman, Esq. Bass & Ullman 747 Third Avenue New York, New York 10017 for Respondent Thomas A. Ziebarth, Esq. Law Department United States Postal Service Washington, D.C. 20260 for Complainant
This proceeding involves charges, set forth in a Complaint filed by the General Counsel for the United States Postal Service (Complainant) that Beauti-Breast of Paris, Post Office Box 3725, Beverly Hills, California, and 2875 Bates Road, Montreal, P.Q., Canada (Respondent) is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations contrary to the provisions of Section 3005 of Title 39, United States Code.
An Answer to the Complaint was filed on behalf of Respondent in which Respondent admitted using the mails in its business enterprise and admitted that the exhibit attached to the Complaint (Appendix A to this decision) is a true copy of advertising material used by Respondent in its business enterprise. Respondent denied all other allegations of the Complaint.
The matter came on for hearing before an Administrative Law Judge who retired without having rendered an Initial Decision. In due course, the matter was re-assigned to the undersigned whose decision this is. This decision does not rest on a determination of the credibility of the witnesses presented by the parties, so the question of the necessity to reopen the hearing is not present. Gamble-Skogmo, Inc. v. F.T.C. , 211 F.2d 106 (8th Cir., 1954); Brooklyn Eastern District Terminal v. U.S. , 302 F. Supp. 1095 (E.D.N.Y., 1968); NLRB v. Dixie Shirt Co ., 176 F.2d 969, 970 (4th Cir., 1949); Van Teslaar v. Bender , 365 F. Supp. 1007, 1012 (U.S.D.C., Md., 1973).
In this, as in the usual case brought under 39 U.S. Code 3005, there are three broad issues, namely: (1) does the Respondent use the mails to obtain money or property in the conduct of its business; (2) does the Respondent make the representations set forth in the Complaint; (3) are the representations, if made, true or false and materially so as a matter of fact. Since the Respondent, in the Answer, admits the use of the mails, that issue is settled.
It now must be determined whether the Respondent, in its advertising literature, makes the representations that are expressed in the charges of the Complaint.
The Respondent's position is that what it is selling is a system by which women can increase the size of the muscles of the upper torso, thereby increasing the circumference of the entire body at the nipple line, which measurement the Respondent says is the, or at least its, definition of "bustline." The size of the chest muscles will be increased, thus producing a raised base on which the breasts rest. By so raising the base underlying the breasts, these appendages will be caused to be uplifted, and to protrude, thereby improving the appearance of the "bustline."
At the outset of this part of the inquiry, it will be seen from an examination of Appendix A that the two most prominent features in Respondent's advertisement are the headline and the photograph. The headline contains the largest print on the page and it reads, in part:
"Gains up to2" reported in 14 days with Beauti-Breast"
The photograph is that of an attractive young woman with large breasts which appear to bulge over and around the brassiere-like garment she is wearing.
Looking at the advertisement (App. A), it does not take long to discover the area of the female anatomy on which the attention of the reader is focused. In addition to the features of the advertisement mentioned in the foregoing paragraph, the words "breast," "breasts," or "bosom" appear at least 30 times on Respondent's one-page advertisement. Interspersed between these frequently used words are the words "bust" and "bustline."
In Webster's New International Dictionary, 1961 Edition (Unabridged) the word "bust" is defined, insofar as is pertinent to this case, as follows:
" bust *** 2a: the upper portion of the human torso between neck and waist; esp : the breasts of a woman b: a measure around the female body marking the maximum projection of the breasts ***."
As a matter of interest, the word "bust" is a non-medical term, and it does not appear in Dorland's Illustrated Medical Dictionary 21st Edition (1947) or 24th Edition (1965).
Considering Respondent's advertisement as a whole, and giving to the language the meaning it is given when used in normal, everyday parlance, it is established beyond question or cavil, and I so find, that Respondent's advertisement (App. A) is addressed to and intended for those women who, for whatever reason, are interested in, and hopeful of, increasing the size, degree of firmness, and configuration of their breasts.
Turning now to the specific charges in the Complaint, attention will be directed toward those portions, or some of them, of Respondent's advertisement (App. A) related to each charge.
"(a) That the Beauti-Breast Program will increase the bust measurement in the female user as much as two inches after the first treatment";
Language to this effect appears in the first paragraph of the left-hand column; the substance of the language is presented statistically in the table identified as "The Hanley-Weider Beauti-Breast Test Report"; the message is conveyed in the testimonials appearing in the lower half of the left-hand column; and a smaller, but certain, increase is promised every woman in the language appearing under the word "GUARANTEED" in the left-center, bottom of the advertisement.
"(b) That the use of the beauti-Breast Program will add firmness and contour to the female breasts"; The substance of this charge is based on language appearing, among other places, under the word "GUARANTEED" at the left-center, bottom of the page; in the testimonial purportedly signed by "D. H., Los Angeles" in the lower left-hand column; in the language which follows the sub-caption "WHAT MAKES THESE AMAZING GAINS POSSIBLE?" at the top of the right-hand column; and in the language which follows the sub-caption "WHAT THE BEAUTI-BREAST PLAN IS ALL ABOUT]" appearing in the upper half of the right-hand column.
"(c) That the Beauti-Breast Plan will reverse the tendency to sagging and aging in the female breasts"; Language relating to this charge is found, among other places, following the sub-caption, "WHAT MAKES THESE AMAZING GAINS POSSIBLE," located at the top of the right-hand column; in the language following the sub-caption "DO YOU NEED BEAUTI-BREAST?" in the lower half of the right-hand column; and in the language under the word "GUARANTEED" at the left-center, bottom of the page.
"(d) That the Beauti-Breast Plan will improve the entire bustline area by firming, shaping and increasing the size of the bustline";
Language relating to this charge is found, to name but some of the places, under the sub-caption "HERE'S CLINICAL PROOF THAT BEAUTI- BREAST REALLY WORKS," at the top of the left-hand column; following the sub-caption "WHAT MAKES THESE AMAZING GAINS POSSIBLE?" at the top of the right-hand column; and following the sub-caption "DO YOU NEED BEAUTI-BREAST" in the lower half of the right-hand column.
"(e) That the 'Hydodynamic Beauti-Breast Contour Cup' helps firm and tone-up the breasts and is an integral and essential part of the Beauti-Breast Plan and makes a material contribution to the promised physical results."
Language relating to this charge is found following the sub-caption "Step 1. THE NEW HYDRODYNAMIC BEAUTI-BREAST CONTOUR CUP," near the center of the right-hand column; and in the order blank at the bottom of the right-hand side of the advertisement. The language of this charge is also implicit in the photograph on Appendix A.
There are guidelines that have been established which assist one in resolving the question as to whether the representations are made. In the leading case, Donaldson v. Read Magazine , 333 U.S. 178, 189, the Court stated that advertisements should be considered as a whole and that they should be interpreted "in the light of the effect [they) would most probably produce on ordinary minds."
In Gottlieb v. Schaffer , 141 F. Supp. 7 at 16 (S.D.N.Y. 1956), the court, after referring to the above-quoted language in Read , concluded that the Postal statute was intended to protect "the gullible and the simple ... even though they do not reach the level of the 'ordinary mind'". The court further stated:
"The purpose of the [Postal] statute is to protect the unwary and unsuspecting, as well as the knowledgeable or worldly-wise --those who are 'trusting as well as the suspicious.'1/ The public includes 'that vast multitude *** the ignorant, the unthinking and the credulous.'2/ The fact that informed and sophisticated persons would laugh off, or even be amused by, obviously false and absurd statements in an advertisement does not detract from their power to deceive the ignorant, gullible and less experienced.3/
* * * * * *
In Stein v. Pilling , 256 F. Supp. 238 (D.N.J. 1966), the court stated that the test in Read had been "amplified" in P. Lorillard v. Federal Trade Commission , 186 F.2d 52, 84 (4th Cir., 1950), from which it quoted with approval as follows (at 243):
"In determining whether or not advertising is false or misleading within the meaning of the statute, regard must be had, not to fine spun distinctions and argument that may be made in excuse, but to the effect which it might reasonably be expected to have upon the general public. 'The important criterion is the net impression which the advertisement is likely to make upon the general populace.'" The decision in the Stein case was affirmed, per curiam, by the Third Circuit Court of Appeals, 379 F.2d 554, "for the reasons so well stated" by the District Court in its opinion.
Applying the criteria established in the cases cited above, particularly Donaldson v. Read Magazine , supra , one is inevitably impelled to the finding that Respondent does make the representa- tions which Complainant attributes to it in the Complaint.
Having found that the Respondent does make the representations alleged in the Complaint, it must now be determined whether these representations are true or whether they are materially false as a matter of fact. To resolve this issue it is necessary to examine the program being sold by Respondent and, then, to discover whether that program, if followed as directed, will produce for the user the promised results.
The program sold by Respondent consists of four parts, namely:
1. A series of five exercises. The exercises are designed, primarily to exercise the muscles of the arms, chest, shoulders and back.
2. "The New Hydrodynamic Beauti-Breast Contour Cup." This is a cup-like device at the base of which is a length of hose which is to be attached to a hydrant. The device is to be placed against the breast, pressing slightly upward, and water is turned on with the temperature varying from lukewarm to cold. The force of the water is increased until the spray completely envelops the breast. This device is to be used two minutes for each breast at first, increasing later to seven minutes, after which the user drys by patting off the moisture with a turkish towel.
3. The areas of and surrounding the breasts are next massaged with one or more of the three creams sold by Respondent as suggested in the booklet accompanying the purchase. (Ex CX-2E) With regard to this item, it was stipulated (Joint Exhibit No. 1) that while the "3 Luxurious Breast Cream Firmers and Toners" may act "as an astringent or as skin conditioning cosmetics" when "applied to the female breast," said creams, "whether used separately or in combination, will not enlarge the female breasts and will have no effect upon the size, shape, contour or degree of firmness of the female breasts nor upon the overall circumferential measurements of the female chest."
4. Finally, there are certain dietary suggestions for women who are underweight, overweight or or normal body weight.
Testifying as expert medical witnesses were Drs. Mahmoud Mourad, William J. Evans and Ralph Weilerstein, all well qualified medical doctors, who were called by Complainant, and Dr. Gerald Klaz, a well qualified medical doctor, who was called by Respondent. Respondent also called James Hanley, an educator and free-lance writer in the field of physical fitness, physical education and muscular activity; Ralph P. Johnson, a physical therapist who applies methods of physical therapy as prescribed by the orthopedic physicians by whom he is employed, and who is a retired Chief Pharmacist of the United States Navy, and who was Chief Physical Therapist at the United States Naval Hospital, Bethesda, Maryland, for 10 or 11 years, after which time he had additional duty as a physical therapist with the United States Senate and at the White House. Mr. Hanley received a B.S. degree in Physical Education at Utah State University in 1966 and an M.S. degree in the same field from Southern Illinois University in 1967. Mr. Johnson received a Masters degree in Physical Education in 1921 and took additional training at, among other schools, the U.S. Navy School of Physical Therapists. Finally, a number of users of Respondent's program testified.
Attention will now be directed to the testimony of the witnesses, expert and otherwise.
Among the medical witnesses, there is agreement that among the muscles in the upper torso are the pectoralis (major and minor), the serratus anterior group, the latissiumus dorsi group, the parascapulars and the intercostals. These muscles will be enlarged by following the exercise part of Respondent's program, but while the credibility of all the witnesses is accepted, the weight of the evidence is that any appreciable enlargement of these muscles would require the following of the exercise program for a considerable period of time, such as for 6 months or more. An actual increase in chest girth of 2 inches after following Respondent's program for only one session is a physiological impossibility.
Improved posture can change the appearance of the breasts, but does not in any way affect the size or shape of the breasts. Massage and the application of warm hydrotherapy to the breasts probably will cause some surface hyperemia in, and imperceptible enlargement of, the affected area, but this effect is of a temporary nature.
The witnesses made statements that are more directly related to the inability of Respondent's program to produce for its users the results which Respondent has been found to promise - namely, the enlargement of the female breast, the increasing or restoration of firmness to the female breast and the correction of sagging of the female breast. Comments on various topics by different witnesses are hereinafter summarized or quoted.
Dr. Mourad testified that if the exercise program were followed vigorously for from 6 months to a year a woman might achieve a 2-inch increase of total circumference at the nipple line, but that no increase in size of the breasts would occur. (Tr. 21) The use of the hydrolator would have no effect on the firmness or contour of the breast. (Tr. 31) The hydrolator would have no effect upon the development of any of the muscles in the chest area. (Tr. 37) The exercise and the other elements of the program, either separately or taken together, will "absolutely not" tend to reverse a tendency to sagging in the female breast. (Tr. 37)
Dr. Evans stated that the size and shape of the female breast would be affected by a change in a woman's endocrinal function, but there is nothing in Respondent's program which would affect the endocrinal function. (Tr. 124) The size and contour of the breasts at any one period in time in any one woman cannot be changed except through surgery, or injection of foreign bodies such as silicone, or implanting of sacs of silicone, molding the breasts to certain sizes. (Tr. 125) The use of the hydrolator makes no contribution toward the Respondent's program. (Tr. 131)
Dr. Klaz supervised a certain test of Respondent's program and this test has some features of interest. (RX-5) The report of the test begins with a description of Respondent's program, the results in terms of measurements are stated, and these are followed by comments. Dr. Klaz is very careful to state in the report what the subjects - not Dr. Klaz - had to say about the test in terms of their beliefs of their accomplishments and satisfaction with the program. While the last statement of the report is somewhat enigmatic - "The documental improvement is indeed significant and confirms the subjective improvement experienced by the subjects" - there is one very meaningful, direct and straightforward statement on page 5 of the report. This statement is: "It is well known medical fact that the breasts are composed mainly of glandular and fatty tissue, and that there is very little that can be done to increase these tissues aside from hormonal stimulation or cosmetic surgery." By the last statement quoted from Dr. Klaz's report of his study, he reveals his own misgivings about the previously-stated considerable increases in "bustline" measurements of the subjects who participated in his test. He makes clear that even if the cited measurement increases occurred, no part of such increases could be attributed to any increase in the size of the female breast.
The above medical witnesses are in agreement that the hydrolator would have no permanent effect on the size of the breast. Dr. Klaz says that its use with warm water could cause a temporary engorgement of the breast which would disappear after a few hours. Dr. Evans points out that the use of this device, alone, could cause dryness of the skin of the affected area, and he assumes that this fact is the reason for the inclusion of the creams, although the creams purport to serve other purposes.
Dr. Weilerstein, who has, among other of his qualifications, conducted a number of tests in the new drug and device field, pointed out the many reasons why the tests conducted by Dr. Klaz and Mr. Hanley could not be regarded as determinative, and why the reported results could not be regarded as valid. Some, but by no means all, of these reasons are: the test was an entirely uncontrolled test involving a very small number of persons; there was no examination of the subjects and no certain knowledge of the medication being taken; there was no determination of the state of the menstrual cycle, which can affect breast size; and the methodology provided for no determination of the variations in the measurements as they were made. The study conducted by James R. Hanley is subject to the same deficiencies. (Tr. 392-404)
The witness Hanley testified almost entirely in terms of increased muscle size in the thoracic area, which is not the central issue in this case. In fact, at one point he stated that he did not know that the overall shape and contour of the breasts can be changed (Tr. 219). Further, this witness, when asked what effect the hydrolator would have on the development of muscles underlying the breasts, replied: "I really couldn't say, to give you an honest answer on it." (Tr. 238)
Chief Johnson said that his experience in dealing with female patients has been "very limited" - "My entire duty in the Navy and 95 percent of the work in our office is males." (Tr. 518) He pointed out the many differences between the hydrolator and a whirlpool of the type he uses in his office, indicating the superiority of the latter over the former. (Tr. 515-517) The exercises in Respondent's program (CX 2-E) would strengthen and enlarge the muscles of the chest and he estimated a possible enlargement of 1" - 1 1/4" in 3 - 4 weeks. Massage of the female breast would, in the opinion of the witness, make them firmer, but he made no statement as to how long such firmness might last. (Tr. 509) He said that, in his opinion, increased firmness would result from circulation of water on a woman's breasts, but he did not say how long he believes the firmness might last. (Tr. 510)
There remains for consideration the testimony of the women who followed Respondent's program and expressed varying degrees of satisfaction. While the sincerity of these women is not here denied, their testimony simply can not be given any significant weight when it is compared with the testimony of the medical experts. In some instances, they claimed results which are physiologically impossible; some said that the hydrolator is the most important factor in the success of the program; and some were on various medications (diet pills, birth control pills, or both) which could affect their girth measurements at the nipple level. For these reasons, among others, the testimony of the users must be largely discounted.
Respondent is offering for sale a program to increase the female bustline. Most readers would interpret this representation to be a promise to increase the size of the breasts. All of the expert evidence in this case, and this is the evidence on this question to which weight must be given, is to the effect that it is impossible, except for surgery, silicone implantation, or hormonal administra- tion, to alter the size, contour or firmness of the female breast.
If Respondent's definition of "bustline" is accepted, misrepre- sentation is still present in large measure in connection with this promotion. Respondent represents that to accomplish increased "bustline," his program, consisting of exercises, hydrolator, cream massage and diet, must be followed.
All of the expert testimony in this case is that the hydrolator contributes nothing toward the accomplishment of the desired objective. Respondent has stipulated the lack of worth of the creams it is selling for the purpose of affecting the size, shape, contour or firmness of the breasts and for the purpose of affecting the overall circumferential measurements of the female chest. To represent that the device and the creams will aid in accomplishing the results promised - even under Respondent's definition - is clearly to misrepresent the value and efficacy of these items.
Based upon the entire record in this case, I make the following findings of fact and conclusion of law.
1. Respondent is engaged in the sale of a plan or program known as Beauti-Breast of Paris, or Beauti-Breast.
2. In the conduct of the aforesaid business Respondent solicits remittances of money through the mail.
3. In the conduct of the aforesaid business Respondent, in its advertising material, makes the representations which are set forth in paragraphs 3(a) through 3(e) of the Complaint herein.
4. The representations found to have been made by Respondent in the conduct of its business are materially false as matters of fact.
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 of Title 39, United States Code.
Proposed findings of fact and conclusions of law, together with the supporting reasons submitted by both parties have been fully considered. To the extent indicate herein, such proposed findings and conclusions have been adopted. Otherwise, such proposed findings and conclusions are rejected because they are unsupported by or contrary to the weight of the evidence or because they are immaterial.
An order, in the form attached, for the suppression of the unlawful enterprise herein found should be issued.
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1/ Federal Trade Commission v. Standard Education
Society , 302
U.S. 112, 116; see also Florence Mfg. Co. v. J.C. Dowd &
Co ., 2
Cir., 178 F. 73.
2/ Charles of the Ritz Distributors Corp. v.
Federal Trade
Commission , 2 Cir., 143 F.2d 676, 679.