In the Matter of the Complaint Against

 HEALTH AIDS COMPANY, Box 1,
 Rugby Station at
 Brooklyn, New York 11203

 and

 P.O. Box 405, 406 and 412 at
 Montvale, New Jersey 07645

 P.S. Docket No. 1/184

 July 19, 1974

 Herbert L. Stewart Administrative Law Judge

 APPEARANCES:
 James J. Robertson, Esq.
 Law Department U.S. Postal Service
 Washington, D.C. 20260 for Complainant

 Robert Ullman, Esq. Bass and Ullman
 342 Madison Avenue
 New York, New York 10017 for Respondent

This is a proceeding by Complainant against Respondent under 39 U.S.C. 3005 which authorizes action against Respondent upon evidence satisfactory to the Postal Service that Respondent "is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations."

Complainant alleges that Respondent is engaged in such a scheme in the sale of 'KAL-X Plan & Tablets", by the use of advertising materials by which Respondent, directly or indirectly, in substance and effect represents:

(1) that users of Respondent's tablets can lose weight

(2) that the users of Respondent's tablets can lose weight without restricting caloric intake.

Copy of an advertisement alleged to be typical of advertisements Respondent causes to be published in its sales solicitations was attached to the complaint as Exhibit A.

This advertisement contains the following statements:

(a) "DON'T BE FAT"

(b) "REDUCING PLAN WITH KAL-X TABLETS NO UNNATURAL LIQUID DIETS]"

(c) "EAT NORMAL SOLID FOODS,"

(d) "NO STARVATION DIETS]"

(e) "You Promise that KAL-X PLAN & TABLETS will help me lose weight as guaranteed or you will refund by money upon return of KAL-X."

Respondent in its answer admitted the use of the advertisement (Ex. A to Compl.) but denied that said advertisement contained false representations.

A hearing for the presentation of evidence was held on 5 December 1972. Only one disputed witness was called, a physician, employed by the Food and Drug Administration and assigned to work with the Postal Service, who testified as a medical expert on behalf of Complainant. He was cross-examined by Respondent's counsel but the import of his direct testimony after cross-examination remained intact. Subsequent to the hearing the administrative law judge who had presided thereat retired without rendering an initial decision. The matter was subsequently re-assigned to the undersigned whose decision is rendered herewith. In reaching this decision the undersigned found that his decision does not rest on determining the credibility of the witnesses presented by the parties. Hence, the question of reopening the hearing does not arise. See 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); cf . Utica Mutual Insurance Co. v. Vincent , 375 F.2d 129 (2d Cir., 1967) as to constitutional implications.

1. Respondent advertises "KAL-X TABLETS" with such phrases as:

(a) "DON'T BE FAT"

(b) "REDUCING PLAN WITH KAL-X TABLETS NO UNNATURAL LIQUID DIETS]"

(c) "EAT NORMAL SOLID FOODS,"

(d) "NO STARVATION DIETS]"

(e) "You Promise that KAL-X PLAN & TABLETS will help me lose weight as guaranteed or you will refund my money upon return of KAL-X."

A Brooklyn, New York, and three Montvale, N.J. post office boxes have been shown at various times as the addresses to which orders are to be sent. (Ex. A to Compl.; Tr. 6; Motions to Amend Complaint to include an additional Montvale, New Jersey P. O. Box to which Respondent responded, expressing no opposition; and a final additional Montvale, New Jersey P. O. Box in Motion to Amend of which a copy was furnished Respondent's counsel to which he failed to respond, it being presumed this amendment was acquiesed in.)

2. Respondent has solicited remittances of money through the United States mail (TR. 7-9) and the Respondent's product has been purchased by the mailing of such remittances (TR. 9-19).

3. Respondent fails to disclose in its advertising that the "KAL-X PLAN & TABLETS" involves the use of a restricted caloric diet in addition to the ingestion of a specified number of tablets (Ex. A to Compl.).

4. Uncontroverted medical testimony revealed the weight of scientific opinion to be:

(a) The major cause of obesity is overeating (TR. 63-64).

(b) In order for an individual to lose weight, it is necessary to restrict caloric intake (TR. 64; 71-74).

(c) The ingredient identified as sodium carboxymethylcellulose is not contained in KAL-X TABLETS with the dosages recommended to be effective as an appetite or hunger depressant (TR. 66-73; 121).

(d) Benzocaine, contained in KAL-X TABLETS, will not anesthetize the stomach (TR. 70-71).

(e) The vitamins and minerals present in KAL-X TABLETS would have no effect as appetite or hunger depressants (TR. 71).

As based upon the foregoing and the entire record in this proceeding, I find as follows:

1. Respondent has obtained and seeks to obtain remittances of money through the mail.

2. Respondent does make the representations alleged in the complaint and heretofore outlined.

3. The representations contained in Respondent's advertising, directly or by implication, are materially false and misleading.

1. Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S.C. 3005.

2. A remedial order in the form attached as provided in 39 U.S.C. 3005 should be issued.