In the Matter of the Complaint Against DIET-E at Box 48950, Briggs Station and at 309 N. Kings Road, Los Angeles, California 90048 P.S. Docket No. 2/184March 21, 1974
Rudolf Sobernheim Administrative Law Judge
APPEARANCES: James J. Robertson, Esq. Consumer Protection Office Law Department, U.S. Postal Service Washington, D.C. 20260 for Complainant Eugene C. Berchin, Esq. Berchin & Berchin 6404 Wilshire Boulevard Los Angeles, California 90048 for Respondent
This is a proceeding against Respondent under 39 U.S.C. 3005 in which Complainant alleges 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 scheme in the sale of a weight loss diet and Vitamin-E tablets. Specifically Complainant alleges that by the use of advertising material, exemplified by Exhibits 1 and 2 to the complaint, Respondent represents, directly or indirectly, in substance and effect:
"a) that the average obese person following the Vitamin-E diet will 'Lose a pound a day and more';
b) that the Respondent's Vitamin-E tablets 'contain a new scientific combination of ingredients that curbs and controls the appetite';
c) that Respondent's food plan and Vitamin-E tablets will 'act to help [the user's] body use up excess fat'; and
d) that Respondent's Vitamin-E tablets 'will double the speed of fat utilization]."
Complainant further states that by "inference the entire advertisement represents:
e) that there is a relationship between Vitamin-E and weight control in the average obese person."
There is no dispute between the parties that the mentioned advertisements were used by Respondent and that by means thereof and in response thereto Respondent obtained money from the public through the mails by virtue of orders for the purchase of its Vitamin-E tablets. The only question which remains is whether the representa- tions made in the advertisement and asserted by the Complainant to be false, are, in fact, materially false.
On this point, Complainant adduced the testimony of a physician whom I find to be highly qualified (see Ex. CX-4) and thoroughly competent to testify on this matter.
On the basis of his testimony I find that the intake of vitamin E in the form of Vitamin-E tablets such as are sold by the Respondent has no effect whatsoever on the loss of weight or in reducing the obesity of any particular person or on the speed of fat utilization by the body (see Compl., par. 3 a), c), d)).
In consequence, a statement in the advertisement that those "who follow the simple Vitamin-E diet report an average loss of at least a pound a day, and even more, without exercise or starvation" is a false statement to the extent that it asserts an effect for the intake of Vitamin-E when in fact Vitamin-E as part of a diet has no effect on the loss of weight (see Compl., par. 3 a)). Moreover, I take notice of the fact that there is no testimony by any witness, lay or expert, to support, either subjectively or scientifically, Respondent's assertion.
I further find that the Vitamin-E tablets, according to the label on the bottles in which they are sold (T 5) contain nothing more than vitamin E and do not contain any new scientific combination of ingredients having any effect whatever on the curbing or control of the appetite (see Compl., par. 3 b)).
I further find that while Respondent's food plan (Ex. CX-3), which is furnished to the purchasers together with the tablets, may, in itself, perhaps, serve as a useful guideline for loss of weight, it is sold not as a diet plan by itself, but as part of a scheme to sell Respondent's Vitamin-E tablets as a means of losing weight and curing of obesity. Thus overall Respondent falsely represents that the Vitamin-E tablets are an essential or effective part of its plan for the reduction of weight of obese persons.
To the extent that the advertisement as a whole thus creates the inference or picture, in the mind of an ordinary reader, that the taking of vitamin E has a relationship to weight control in an obese person, such a statement is a false representation in that vitamin E, according to the overwhelming weight of the evidence in the record, does not have any such effect.
In making these findings I am aware of the fact, adverted to by Respondent, that the sale of vitamin E products per se is permissible, and that such products can be bought openly and without prescription. However, when such products are sold through the mails under the representation that they have an effect on the reduction of overweight or the curing of obesity, then such vitamin E products are sold under a false representation subject to the restraints which may be imposed under 39 U.S.C. 3005.
Accordingly, I find as a matter of law that the Respondent is engaged in 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 of the U.S. Code, as alleged in the complaint. An order should, therefore, be issued in the usual form, as provided in 39 U.S.C. 3005, a copy of which will be attached to the Decision.
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