In the Matter of the Complaint Against JAMES ALLEN P. O. Box 80834 at Atlanta, Georgia 30341 P.S. Docket No. 2/174February 5, 1974
Lee H. Harter, Esq. , Law Department, United States Postal Service, Washington, D. C., for Complainant Glenn Zell, Esq. , 15 Peachtree Street, N.E., Atlanta, Georgia, for Respondent
Before: William A. Duvall , Chief Administrative Law Judge
This proceeding was initiated on December 14, 1973, by a complaint which was filed by the Assistant General Counsel, Consumer Protection Office, Law Department, United States Postal Service, hereafter referred to as the Complainant, in which it is charged that James Allen, Post Office Box 80834 in Atlanta, Georgia, hereafter referred to as the 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 Section 3005, Title 39, United States Code.
The Respondent is engaged in sales through the mails of a program or plan or system for losing weight. The specific charges in the complaint are that the Respondent makes the following representations in violation of Section 3005, Title 39, United States Code.
The Respondent is engaged in sales through the mails of a program or plan or system for losing weight. The specific charges in the complaint are that the Respondent makes the following representations which are alleged to be materially false as a matter of fact:
(a) Through adherence to the MAGIC PLAN, the average obese person will lose the weight described in the advertisement, i.e.:
16 pounds in 4 days, .
22 pounds in a week, .
37 pounds in a month;
(b) That the MAGIC PLAN requires little or not will power to lose the weights described in the advertisement; and,
(c) That the cause of the represented weight loss is by means other than caloric restriction or dieting.
After the hearing had been opened, the Respondent's answer to the complaint was received and accepted for filing. The hearing then proceeded in accordance with the provisions of 952.11(b) of the Rules of Practice (39 C.F.R. 952.11(b) under which --
"If the respondent files an answer but fails to appear at the hearing, the presiding officer shall receive complainant's evidence and render an initial decision."
This case was investigated by a Postal Inspector who saw the Respondent's advertisement in the November 11, 1973, issue of the publication known as the National Enquirer. A copy of this advertisement is attached to this decision as Appendix A.
Responding to this advertisement under a test name, as is the practice in such matters, the Inspector ordered from the Respondent, and received from the Respondent through the mails, a booklet which was received in evidence as Exhibit 5. In this booklet, which is a collection of separate sheets of paper held together by a staple, there is set forth what is designated as the "Magic Plan" by a Mr. X and this constitutes the weight reducing program sold by the Respondent.
The question now to be determined is whether, in fact, the Respondent makes the representations that are set forth in the complaint. In making this determination, there must be borne in mind the case of Donaldson v. Read Magazine , 333 U.S. 178, in which the court said that in determining the effect of an advertisement, a judgment must be made as to its impact upon persons of ordinary minds. So the question, here, is would a person of ordinary mind derive from the reading of this advertisement the meaning which the Complainant has expressed in the formal charges of the complaint.
In regard to charge (a), above, those weight losses which are set forth in the complaint are taken expressly from the advertisement, so there is no question of interpretation that is involved in connection with that charge. The representation is made by Respondent.
Charge (b) in the complaint has to do with the lack of need for will power in following the plan being sold by the Respondent. This is a fair inference to be drawn from the advertisement where it says, early in the ad, the following of this plan involves "NO DRUGS] NO EFFORT] NO GIMMICKS]" Certainly the exercise of will power in staying on a restricted diet is a matter of extreme effort, so that it seems that this representation is one which the average reader may easily infer from the perusal of the Respondent's advertisements.
Charge (c), in which it is charged that the Respondent represents that the weight loss to be accomplished is achieved by means other than caloric restriction or dieting is one concerning which there is more question.
Complainant bases this charge upon the statement in the advertisement that the program being sold by the Respondent is not a "Fad" diet; also, the charge is based upon a reference to the Respondent's program as a "Magic Plan."
In my opinion, the average reader who runs across this advertisement would not be advised, really, as to what the magic plan of the Respondent is. He is told that it is not a "Fad" diet but he is not told that it is not any kind of a diet, and the statement that it is a "magic plan" may be interpreted to mean that the Respondent has some diet that is more effective than the diet one ordinarily encounters. But nowhere in the advertisement does the Respondent state that dieting will not be involved.
In summary, I find that the Respondent does make in its advertising material, in words or in substance, the representations which are set forth in charges (a) and (b) of the complaint but I do not find that the Respondent makes the representation contained in charge (c) of the complaint.
Now, the question is whether the representations which have been found to have been made by the Respondent are true or false, and at this point it becomes necessary to discuss some of the details of the Respondent's plan.
For the first seven days, the Respondent recommends that the remitter tell himself that he wants to lose weight, and that he is going to lose weight. He must convince himself that the loss of weight is within his control and it is something that he can do for himself. He must develop a positive frame of mind toward the loss of weight.
One of the steps in accomplishing this goal is to prepare for himself what the Respondent refers to as a "Brain Sheet." This "Brain Sheet" is a piece of paper of any size, preferably a sufficiently small one that can be carried around and held in the hand, on which the remitter writes, "I need to lose X number of pounds and I will lose X number of pounds. When I get thin, I will have accomplished" certain objectives, among which are "better health, better marital relations or appeal to the opposite sex, admiration, acceptance and kindness on a personal level, ability to wear new mod or stylish clothes and a new or better job." The "Brain Sheet" concludes with this statement, "I will lose X number of pounds and I will never be fat again."
The Respondent recommends that the remitter read this "Brain Sheet" as often as possible but in no event less than five times a day. The Respondent recommends that the remitter read it in taxis, in the office or in the bathroom or wherever he happens to be, whenever he has an opportunity to read it.
On the eighth day, the remitter begins a diet. This is a very restricted diet according to expert medical testimony, about which more will be said later. This diet consists of approximately 900 calories per day.
At the end of seven days on this 900 calorie diet, namely, beginning with the 15th or 16th day for a period of 21 days, the remitter stays on a diet of approximately 1200 calories per day. This 1200 calorie diet has been described by a competent witness as being a well balanced diet and not different in significant respects from other diets used by the medical profession for patients who are on a weight reducing program.
In general as a witness for the Complainant was Dr. Vincent F. Cordaro, a medical doctor, who by training and experience is qualified to give testimony in the field of medicine involved in this proceeding. Dr. Cordaro testified that the causes of obesity in 95% of the cases are exogenous, namely overeating. In the remainder of the cases, the causes may be various forms of glandular deficiencies which will not respond, necessarily, to dieting but which require other forms of therapy.
In the cases of obesity caused by overeating, the treatment of choice of the medical profession is the prescription of a well balanced diet which is restricted in its caloric content and which is individually tailored for the patient being treated. In order to lose one pound of weight, it is necessary that the individual experience a 3500 calorie deficit. It is not easy for persons to lose weight because it is not easy to stay on the diet. One of the reasons it is not easy to stay on the diet is that the patient does not have adequate insight into the reason why he is overweight and he lacks the will power to remain on the diet.
In regard to the program being sold by the Respondent, the expert medical testimony of record in this proceeding is that during the first seven days, the remitter would not necessarily experience any weight loss because that period is devoted to this process of convincing oneself that one is going to lose a certain number of pounds, and to getting himself in the proper frame of mind so that in the following days he can begin to take those steps, namely, dieting, which will have the effect of producing a loss of weight. But for the first seven days no weight loss is to be achieved by the remitter.
The diet that's recommended for the remitter beginning on the eighth day is the 900 calorie per day diet. This diet begins with a six ounce glass of warm water with the juice of 1/2 fresh lemon squeezed into it every morning. Then it calls for a 6 ounce glass of carrot juice, a half of cantaloupe and one cup of black coffee.
Lunch consists of two large cucumbers, one half of a large tomato, one large green pepper and the suggestion is made that all of this can be chopped together in a salad or the items can be eaten individually on a plate. They may be seasoned with salt and pepper and one ounce of vinegar.
Dinner consists of a six ounce glass of sauerkraut juice, four cups of green beans and two pieces of broiled chicken. The statement is made that you may season the beans with salt and pepper and cook with two slices of onion, if you desire.
The remitter is supposed to stay on this diet for a period of seven days. It just simply is not so to represent or suggest that a person can stay on such a diet as that for a period of seven or eight days without the exercise of will power.
There is nothing in the credible evidence in this record that suggests that the first seven days of self-hypnosis or auto- suggestion is going to be sufficient for the average person to enable him to build up his will power to such an extent that, during the next seven or eight days, he can stay on any such diet as is recommended for the first eight days of the diet plan.
During this seven or eight day period of tiem, the average woman would suffer a 1350 calorie per day deficit and the average man would experience a 1650 average calorie per day deficit. Since it requires a deficit of 3500 calories to produce a weight loss of one pound, it is obvious that even from a theoretical mathematical standpoint, the average woman would require 2 1/2 days to lose one pound on this diet and the average man would require approximately two days to experience a weight loss of one pound.
The diet that has been recommended by the Respondent for the 16th through the 37th days was described by the medical witness as a 1200 calorie per day diet which the medical profession might well follow in treating patients desirous of losing weight, but that the weight loss that would be experienced in following this diet, would be a weight loss of approximately 1 1/2 to 2 1/2 pounds a week, which is regarded as a safe rate of loss.
While the patients are on the diet prescribed by the medical profession, they are watched by their physicians for any untoward side effects that this might have, but it can be followed generally without any problems for a period of five to six weeks and in some cases it can be followed almost indefinitely when the person has accustomed himself to the ingestion of this restricted caloric diet.
These diets, both the one recommended by physicians and the diet prescribed by the Respondent for the period of the 16th through the 37th days, are well balanced diets, although they are restricted insofar as the caloric content is concerned.
The real thrust of the advertising material used by the Respondent is that he is offering for sale some system, whatever it is, by means of which the remitter will achieve spectacular weight losses in a short period of time. The expert medical testimony on this point is that there is no means short of surgery by which an individual may lose as much as 16 pounds in four days and that even by surgical means, this great loss could not be accomplished in all persons. It would take a person of extreme obesity for whom such a weight loss could be accomplished.
In any event, the expert medical testimony of record of this case is that the weight losses promised by this Respondent can in no way be accomplished by following the methods prescribed by the Respondent and being sold through the mails by the Respondent. The testimony is, also, that some weight loss would be produced by those persons who follow the Respondent's plan but that the following of this program would require the exertion of a great deal of will power on the part of the individual.
Accordingly, the evidence of record in this proceeding leads to the following findings of fact and conclusion of law.
1. The Respondent is engaged in the sale through the mails of a program for weight reduction called the "Magic Plan."
2. In conducting this business, the Respondent advertises in a publication of wide distribution in this country.
3. In the advertising material used by the Respondent, the Respondent makes the representations which are set forth in paragraphs 2(a) and (b) of the complaint.
4. These representations found to have been made by the Respondent are materially false as a matter of fact.
The Respondent is engaged in conducting a scheme or device for the sale through the mails of a plan for weight reduction by means of false representations contrary to the provisions of Section 3005, Title 39, United States 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 an order of the type provided for in 39 U.S. Code 3005. U. S. Health Club v. Major , 229 F.2d 665.
A mail stop order as provided in 39 U.S. Code 3005 should be issued against this Respondent.
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