In the Matter of the Complaint Against PARKER PUBLISHING COMPANY at West Nyack, New York 10994 P.S. Docket No. 1/84; APPEARANCES: For Complainant: James J. Robertson, Esq. Washington, D.C. For Respondent: John M. Callagy, Esq. Townley, Updike, Carter & Rodgers New York, New York
The complaint in this proceeding brought under 39 U.S. Code 3005 and 39 C.F.R. 952 charged Respondent with obtaining remittances of money and property through the mails by means of false representations. More specifically the complaint charged that in marketing its book "Miracle Diet For Fast Weight Loss" by Sidney Petrie, Respondent represents that on the basis of the content of the book:
"(1) That an individual can eat the 'miracle fat-burning foods' listed in the diets set forth in the aforementioned publication, 'in place of, or in between, your regular meals--and enjoy more variety than you have been gaining weight on. ONLY NOW WILL YOU LOSE WEIGHT';
"(2) Than (sic) an individual who adheres to the diet propounded in the aforementioned publication may, ' r est assured that it won't cause . . . the slightest discomfort whatsoever . . .';
"(3) ' . . . you can lose 100 lbs. and more by actually adding to your food intake--but this is Petrie's promise to you . . . and he backs it up with proof.';
"(4) That the consumption of 'miracle fat-burning foods' listed in the aforementioned publication will result in the elimination of fat cells from the body of an individual."
The complaint further charges Representations 1-4, above, are false, since the book does not purport to give the information represented as contained in the book.
After hearing the evidence and receiving briefs, the Administrative Law Judge issued an initial decision in which he found that through its advertising Respondent "falsely represents the book's content in that its advertisement falsely represents that the dieter:
"a. will lose weight by consuming "MIRACLE FAT-BURNING FOODS' while the book itself neither mentions nor lists such foods;
"b. will not experience 'the slightest discomfort' while following the prescribed diet while the book itself merely represents or promises that the dieter will not feel hungry;
"c. 'can lose 100 lbs. and more by actually adding to his food intake' while the book itself makes no such statement and merely promises weight loss of 20, 50 or 100 lbs. in the author's preface."
On the basis of the foregoing finding and his further finding that Respondent is obtaining remittances of money through the mail by means of the foregoing false representations, the
Administrative Law Judge recommended an order as provided in 39 U.S.C. 3005.
The matter is now before the Judicial Officer on Respondent's appeal. Since the representations charged in the complaint are set forth in the language of the advertisement, Respondent's exceptions on the merits relate to whether the representations found to be false are in fact and in law false.
1. Representation (1) involves the phrase "miracle fat-burning foods" which was admittedly coined by the advertising copywriter. His basis for so doing is the name "Miracle Diet" the book's author gives to his diet regimen plus several comments to the effect that loss of weight requires fat to be burned and that protein increases burning of fat, i.e., increases the metabolic rate. The author does not suggest that any particular food is a miracle fat-burning food or even that protein foods are "miracle" foods. By wedding the word "miracle" from the title of the diet to references in the text to "fat-burning", Respondent's advertising has so seriously distorted what the book says that, as found in the initial decision, it falsifies the content of the book.
2. Representation (2) presents more difficulties. The problem here is that the representation made by Respondent as charged in the complaint is that adherence to the diet "won't cause the slightest discomfort whatever." The book advances the thesis that by dividing the daily ration of food allowed by the regimen into six meals and by following its emphasis on protein, a person avoids any hunger distress. The initial decision found that because the book did not refer to other possible types of distress, the representation was not supported by the text of the book. However, the only evidence on the subject was the testimony of Complainant's medical expert 1/ who testified only about the existence of the discomfort of hunger. In the absence of evidence that discomfort, other than hunger, is to be expected by a person following a restricted diet of the kind involved, Representation (2) ought not to be considered as materially misrepresenting the book. Accordingly, the Administrative Law Judge's finding to the contrary is set aside.
3. Representation (3) in effect is that the author of the book promises the reader that he can lose 100 pounds or more by actually adding to his food intake. The author makes no such promise. The book does promise that its use will enable a person to lose the amount of weight indicated. It does not, however, promise that the reader can achieve that objective by adding to his food intake. It is true, of course, that in emphasizing the benefits of eating the foods the author regards as proper, the book cites two cases in which the author's diet regimen led to accelerated weight loss even though the regimen increased the amount of food ingested. But, the author clearly does not suggest in his book that his diet regimen involves more food than the ordinary person uses. Representation (3), therefore, is falsely made.
Respondent raises a number of other bases for reversal of the recommendations of the initial decision. All have been considered and are denied.
On October 8, 1971, the Assistant General Counsel, Consumer Protection Office, who signed the complaint in this proceeding, directed a letter to Respondent advising it that the advertising Respondent was then using contained the representations subsequently set forth in the complaint. The letter also transmitted a standard form of Compromise Agreement and advised that if Respondent executed the same and returned it within 10 days, the Assistant General Counsel would forego the institution of legal proceedings.
On October 22, 1971, Respondent's president replied that on the basis of advice from the book's author only two changes in the advertising appeared to be required. These are:
1. The elimination of the words "in place of" in the language subsequently embodied inc charged Representation (1); and
2. Changing the language "Fat cell vanishes as nutrients are burned for energy" to "Fat cell reduces in size as nutrients are burned for energy" and making a concimitant change in the diagram to which the language referred.
Sometime around December 22, 1971, Respondent commenced mailing the revised brochure. 2/ The Consumer Protection Office did not respond to Respondent's letter, but did file the complaint in this proceeding on April 28, 1972, some six months after the date of Respondent's letter and approximately four months after Respondent commenced using the revised advertisement. As suggested above, the charges in the complaint were drawn from the language of the original advertisement (CX-2) rather than from the revised advertisement (CX-8). Respondent suggests that the failure to respond to its October 22 letter precludes Complainant from maintaining this proceeding. Such a conclusion, of course, would result in the continuance of inducement to members of the public to make remittances to Respondent on the basis of false representations. "As a general rule laches or neglect of duty on the part of officers is no defense to a suit by it to enforce a public right or protect a public interest" (Utah Power & Light Co. v. U.S. (1961), 243 U.S. 389, 409). The delay in instituting action after Respondent's rejection of the Assistant General Counsel's demand was beneficial rather than detrimental to Respondent. In Institute For Weight Control, Inc. v. Klassen, D.C. N.J. 1972, 348 F.Supp. 1304, aff'd 474 F.2d 1338, the court denied a similar contention with respect to a delay in instituting proceedings from October
1971 to May 1972 saying at page 1316:
"*** As a matter of fact, as this Court pointed out at the time, it could well be argued that for a period since October of 1971, until the commencement of the administrative proceeding now under review, the advertisement in question, subsequently found to be a material misrepresentation, had been used to considerably enrich the plaintiff, at the expense of a hoodwinked public. It is also clear that there is nothing in the record that the entry of the stop order will, as contended in the plaintiff's Brief, result in 'destroying plaintiff's business . . . . '"
No basis exists for concluding that Complainant's delay precludes him from maintaining this proceeding.
Respondent contends that its advertising is not actionable under 39 U.S.C. 3005 because, as it is selling a book, issuance of a false representation order here would violate the freedom of press guarantees of the first amendment. Respondent's premise that it is selling a book rather than a treatment has been accepted throughout this proceeding. While the solicitations may be somewhat ambivalent in that respect, 3/ the complaint does not allege Respondent is selling a weight reduction program as was the case in Lydia Feldman 4/ but recognizes the product to be a book. The first Parker 5/ case considered by this Judicial Officer (Parker I) held that advertising that misrepresented the book sold was not protected by the first amendment. As the Supreme Court stated in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations:
"Any first amendment interest that might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity."
Respondent's contentions concerning the first amendment, its money back guarantee and sale on approval are denied for the reasons stated in Parker I 6/ and Parker II. 7/
Upon review of the Initial Decision in the light of the exceptions of the Respondent, I find as did the Initial Decision that Respondent is engaged in a scheme or device for obtaining money or property through the mail by means of materially false representations and that a remedial order should be issued against this Respondent pursuant to 39 U.S.C. 3005. Such an order is being issued contemporaneously with this decision.
Adam G. Wenchel Judicial Officer
06/07/74
Wenchel, Adam G.
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1/ Dr. Cordaro, Tr. pp. 60, 61.
2/ Complainant's Exhibit (CX) 8. The original brochure is in evidence as CX-2. For reasons stated on page 6 of the initial decision, it is proper to rely on the revised advertisement as support for the complaint.
3/ Compare the third paragraphs in CX-1 and CX-7 with the fourth paragraphs.
4/ P.S. Decision, November 16, 1973, P.S. Docket No. 1/202.
5/ Parker Publishing Co., P.S. Decision, June 29, 1971, P.O.D. Docket No. 3/41.