In the Matter of the Complaint Against JOE WEIDER, 25 Maple Street and 55 Maple Street at Norwood, New Jersey 07648 P.S. Docket No. 2/74November 21, 1974
William A. Duvall Chief Administrative Law Judge
APPEARANCES: Sheldon S. Lustigman, Esq. Bass & Ullman 747 Third Avenue New York, New York 10017 for Respondent James J. Robertson, 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 Joe Weider, 25 Maple Street and 55 Maple Street, Norwood, New Jersey (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 that it advertises its product in periodicals of nationwide circulation and receives remittances of monies through the United States mails. Respondent admitted, also, that it offers for sale through the United States mails a product known as "Slim Gard," together with a course booklet entitled "Quick Slimming with the 'Slimmer Plan'". Respondent denied all other allegations of the Complaint.
There are three broad issues in this proceeding, 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; and (3) are the representations, if made, true or materially false as a matter of fact.
Since the Respondent, in the Answer, admits the use of the mails in the conduct of the business under consideration, that issue is resolved. DOES RESPONDENT MAKE THE ALLEGED REPRESENTATIONS
It now must be determined whether the Respondent, in is advertising literature, makes the representations that are expressed in the charges of the Complaint.
In paragraph IV of the Complaint, Complainant charges that, bu and through the use of its advertising material,1/Respondent, directly or indirectly, makes, or makes in substance and effect, the following representations which Complainant alleges are materially false as a matter of fact:
"(1) That use of Respondent's product will permit the selective or localized loss of weight in particular areas of the body;
"(2) That any weight or bulk loss resulting from use of Respondent's product will be permanent;
"(3) That the use of Respondent's product promotes virility, strength and muscle power;
"(4) That the use of Respondent's product will allow an individual to slim down and tone up;
"(5) That use of Respondent's product permits an individual to trim inches off his middle, waist, hips and lower back;
"(6) That Respondent's product will result in the trimming of inchess off a person's middle, waist, hips and lower back without exercising;
"(7) That Respondent's product promotes immediate perspiration;
"(8) That the wearing of Respondent's product under an individual's clothes would go undetected;
"(9) That Respondent's product is very comfortable to wear;
"(10) That Respondent's product may be safely used by all persons."
In deciding whether Respondent makes the foregoing representa- tions, there must be kep in mind the guidelines announced by the Supreme Court of the United States:
"Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such was as to mislead. Wiser v. Lawler , 189 U.S. 260, 164; Farley v. Simmons , 99 F.2d 343, 346; see also cases collected in 6 Eng. Rul. Cas. 129-131. That exceptionally acute and sophisticated readers might have been able by penetrating analysis to have deciphered the true nature of the contest's terms is not sufficient to bar findings of fraud by a fact-finding tribunal. Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds. Durland v. United States , 161 U.S. 306-313, 314; Wiser v. Lawler , supra at 264; Oesting v. United States , 234 F. 304, 307. People have a right to assume that fraudulent advertising traps will not be laid to ensnare them. 'Laws are made to protect the trusting as well as the suspicious.' Federal Trade Comm'n v. Standard Education Society , 302 U.S. 112, 116." ( Donaldson v. Read Magazine , 333 U.S. 179, 188-9 (1947))2/
The first representation quoted from the Complaint must be dismissed. The use of the word "permit" must be the result of oversight, haste, or the exercise of less than the necessary degree of care in the drafting of the Complaint. So far as the proof in this record shows, there is nothing about Respondent's garment which would inhibit or prevent a person's losing weight in selective areas. Thus, it will, in fact, permit the loss of weight anywhere. Obviously, what the drafter meant to say was that the Respondent represented that the use of the garment would cause or assist the selective or localized loss of weight in particular areas of the body. This is what the advertisement actually suggests, but since counsel for Complainant drafted the charge, the language thereof must be strictly construed against the drafter, who, also, must be held strictly to the proof of it. There is no evidence that the garment would not permit any weight loss.
What has been said concerning the first charge in the Complaint is applicable, also, to charges (4) and (5) wherein it is charged that Respondent represents that the use of its product "permits" or "will allow" certain changes to occur.
Charges (1), (4) and (5) are dismissed.
Application of the criteria, referred to above, from the Read case fails to produce a finding that Respondent makes the representation set forth as charge number (2) in the Complaint. The advertisement occupies only one-third of a page and only about two-thirds of the column consists of advertising language. The caption under the photograph of the two people at the top of the column states that the device --
"Trims Inches Off Your Middle, Waist, Hips and Lower Back While You Wear It Without Exercising]"
Further, in the endorsement purportedly given by the muscle-man, Irwin Kosewski, he is credited with saying, inter alia --
"***It keeps my waist and middle trim while I wear it."
This language does not indicate that a permanent loss of weight or bulk will result from use of Respondent's product.
This charge is dismissed from the Complaint.
The remainder of the representations set forth in the Complaint are either quoted from or based upon language appearing in Appendices A-1 and A-2 to this decision. These representations so clearly are made, and the particular advertisement is so small, or to specify the language in the advertisement on which each representation is based.
In order to reduce this proceeding to its essentials, I shall state at this time that I find and conclude that the representations set forth as charges numbers (7), (8) and (9) of the Complaint are made in the Respondent's advertising literature, but that these representations do not go to the real heart of this proceeding.
For example, whether one begins to perspire the instant one puts on the garment or within a minute or two after putting it on (1) would not influence the decision of the prospective customer to buy or not to buy the garment and (2) would not be determinative of the question of the efficacy of the garment for the purpose for which it is sold. The same may be said in regard to whether the garment is visible under one's clothing and whether the girdle-like garment is comfortable to wear. From the pictures and the description in the advertisement, persons know the physical nature of the garment being offered for sale.
Thus, while charges (7), (8) and (9) are made, and assuming arguendo that these charges are literally misleading, the misrepre- sentation set forth in the charges are not material misrepresenta- tions.
Accordingly, charges (7), (8) and (9) are dismissed.
In sum, therefore, the charges remaining in the Complaint as stating representations made by Respondent are numbers (3), (6) and (10).
In assessing the truth or falsity of the representations found to have been made by Respondent, it is necessary to focus upon just what it is that Respondent is offering to sell and about which the representations are made. In this case, the merchandise offered for sale is an item called "Slim-Gard". (Ex. C-2) This device is a tubular garment made of neoprene and nylon. While it is available in three different sizes, the one received in evidence is 12 inches in the perpendicular measurement and it is approximately 31 inches in circumference. It has a zipper to facilitate putting it on and taking it off. There is nothing in the record to dispute the statement in the advertisement (App. A-1) that the garment "Stretches approximately 6"." It is air and water occlusive. The price charged for the girdle-like garment is $9.98.
Near the bottom of the advertisement the reader is advised that as a bonus he will receive, free, a Slim Gard Course of instruction in the use of the Slim Gard, and that if he will follow the instructions for "just 15 minutes a day" he will "SEE RESULTS WITHIN 2 WEEKS" in terms of slimming down and feeling stronger. The message about the course is in the lowermost, most inconspicuous portion of the advertisement.
It is obvious from the character and tone of the advertisement that the slimming and toning effects advertised will result from the Slim Gard device itself. The mention of the "course" or "plan" is cast in the manner of an afterthought and as something which may be, or need not be, used at the option of the purchaser.
In return for his remittance, the purchaser receives the Slim Gard, a product warranty card bearing on the reverse side instructions for the care of the garment, and a 14-page pamphlet setting forth the "Slimmer Plan." This pamphlet discloses to the purchaser for the first time what he must do if he is to achieve the results originally held out as being the effects of only wearing the garment. In addition to the use of the Slim Gard, the purchaser is told (1) to follow a certain series of exercises, the nature of which being dependent on whether the purchaser is a man or a woman, and (2) to launch himself into a diet program in which, among other things, not more than 80 grams of carbohydrates are to be consumed on days in which he exercises and 60 grams of carbohydrates, on non-exercise days. Exercise is to be performed an hour or less, preferably daily, but at least every other day. (Ex. C-2B, p. 10, unnumbered) As an alternative to the limited carbohydrate diet, the purchaser is told that he may "follow the beaten path of other weight losers by counting calories." (Ex. C-2B, p. 12, unnumbered) Instructions for calorie-counting diets are given.
From the foregoing description of the transaction between advertiser and purchaser, it is apparent that Respondent has engaged in deception and material misrepresentation even before consideration has been given to the efficacy of Respondent's product. The purchaser was told in the advertisement that it is the Slim Gard, alone and as depicted in the illustrations in the advertisement, that will produce "virility, strength & muscle power" and which "Trims Inches Off Your Middle, Waist, Hips and Lower Back While You Wear It Without Exercising." When the purchaser receives the package from Respondnet, it is only then that he realizes that if the longed-for results are to be achieved, he must pursue the standard method of reducing, which is the combination of exercise and diet. In short, he has been misled and caused to part with his money by deception.
Moving now to the program being sold by Respondent, the first matter to be considered is the testimony of the various witnesses.
The first witness called by Complainant was Sidney Wolfe, M.D., who is recognized as being eligible for certification by the Board of Internal Medicine. Dr. Wolfe explained that if one wants to reduce his body measurements in a permanent way having any kind of functional significance, this would involve creating a caloric deficit relative to his present state. In other words, one's caloric expenditure must be such that it exceeds his caloric intake and the net caloric intake must be below the level required to maintain the initial weight below which its is desired to reduce. The caloric deficit may be accomplished by increasing the amount of exercise, by reducing the amount of caloric intake, or by a combination of the two methods. Surgical procedures may also be employed to produce a loss of weight. (Tr. 11, 82)
Concerning the wearing of a constrictive garment Dr. Wolfe said:
"*** On a temporary basis, compressive devices or garments can cause reduction at the point of maximum compression. But this is a phenomenon which will only extend as long as the garment is being worn. And once the garment is removed, within a short period of time the size or dimensions of the area that [is] affected would return to normal." (Tr. 37)
Considered alone, the exercise program in Respondent's pamphlet (ex. C-2B) would inde some weight loss, but not a substantial weight loss and it would, alos, produce some improvement in muscle tone. (Tr. 28, 34) The addition of the wearing of Slim Gard to the performance of the recommended exercise program would contribute nothing in terms of weight reduction, muscle tone, caloric expenditure, or permanent water loss through perspiration. (Tr. 21, 25-6, 32, 35) While Dr. Wolfe has not had direct experience with Slim Gard,
"there is a wealth of experience over centuries of people wearing various kinds of compressive garments, such as girdles, and there's really no evidence ever been developed that such a program, in and of itself, causes any weight loss; or that such a program in addition to caloric restriction or exercise increases the amount that would occur with caloric restriction and exercise." (Tr. 84-5)
Furthermore, the redistribution of body fluids caused by wearing the garment reduces the stress on the muscles, thus precluding the garment's ability to provide isotonic exercise. (Tr. 94-98) Dr. Wolfe expressed the view that if someone has varicose veins, or may be developing them,
"it's very possible that the use over a prolonged period of time, eight to ten hours a day or more, of such a garment could impede the return of blood from the legs, and could be a contributing factor towards the development or aggravation of pre-existing venous varicosis, so-called varicose veins in the legs." (Tr. 43)
Dr. Robert Joseph Carnathan, M.D., the next witness called by Respondent, is Board Certified in the field of dermatology. From this witness it was learned that occlusive bandages used in dermatology are frequently used with corticosteroid salves. Abnormal skin conditions sometimes result from such use, but the abnormalities are believed to result from the salves rather than from the bandages. Precautions to be taken with patients on whom occlusive dressings are used include (1) limiting the duration of time for which the patient wears the dressing and (2) observing the patient periodically to check for abnormalities. When occluded as suggested above, the skin becomes a good culture medium for fungi and bacteria. (Tr. 109-110)
Obese persons are more subject to skin infections than are slim persons because obese persons have more skin folds in which heat can build up. if a person wore Slim Gard uninterruptedly for 12 hours, some skin problems may develop. While there are no studies that show that brief wearing of Slim Gard could produce no effect, there are also no studies that show that wearing such a garment for 3-5 hours would produce skin infection.
Testifying on behalf of Respondent was Marvin Ackerman, M.D., who is Board eligible in dermatology. In addition, Dr. Ackerman is a diplomate in a group known as the American Board of Clinical Immunology and Allergy. (Tr. 223) He regards himself as one of the major allergists in the country (Tr. 227), and he works, also, in the field of dermal pathology.
Dr. Ackerman conducted a study in which 12 subjects were involved: 6 males and 6 females, of whom 3 males and 3 females were told to wear Slim Gard and to take the exercises in Ex. C-2B, while the other 3 men and 3 women were told only to wear the garment as long as they felt like wearing it and to go about their normal daily activity. Dr. Ackerman measured each subject at the beginning and at the end of the 10-day test period. Two of the subjects were members of his family and he may have seen one or two others socially during the test period, but at none of the interim meetings was the test discussed. (Tr. 60, 259, 434).
Dr. Ackerman stated the results of his test to be as follows (Tr. 161-178):
Males (2 groups of 3, each) Females (2 groups of 3, each) Garment/Exercise Garment alone Garment/Exercise Garment alone Avge. Weight Loss 1/3 lb. 1 1/3 lb. .17 lb. 1 2/3 lb.
The overall weight loss average for the entire group was .88 pound. The weight loss average for the exercise group was said to be .25 pound and the same information for the non-exercise group was 1.5 pounds. In each exercise group, there were 2 out of the 3 subjects who either failed to lose weight or experienced a slight weight gain. The following events illustrate some of the factors that had some impact upon the results of the tests: two ot the women experienced the onset of menses (because of their usual weight gain at this event, these subjects estimated net weight losses for the test); two participants admitted to overeating; and there was one participant whose exercise was erratic; one participant said that he exercised more than was his custom but that he also ate more than he usually did during one day prior to the study; and one participant claimed to have been on a modified weight watchers diet so that she estimated here weight loss should be reduced from 2 1/2 to 1 1/2 pounds.
As of changes in measurements, Dr. Ackerman reported the following results, in inches, as determined by using a common tape measure:
Waist3/ Hips3/ Buttocks
Overall average -.14 -.43 -.59
Exercisers +.16 -.04 -.63
Non-exercisers -.43 -.83 -.55
Dr. Ackerman, by using a device invented by him, claimed to detect increased tonality of the abdominal muscles and, possibly, a thinning of the adipose layer.
The following are some general conclusions stated by Dr. Ackerman: the garment can selectively and locally cause slimming; if no exact figure is stated, it will allow a person to slim down and tone up and there will be a greater loss experienced by those who just wear the garment without exercising; if no time period is stated, wearing of the garment will result in trimming inches off a person's middle, waist, hips and lower back, without exercising but engaging in normal daily activity. Dr. Ackerman did not state or suggest what figure would be appropriate to suggest as the amount by which a person could slim down, or what period of time would be required to achieve the reduced body measurements. He did say that his study caused him to conclude that the garment is comfortable and that it is safe under normal usage. Although some of Dr. Ackerman's subjects had some temporary discomforts such as (1) a woman who got a "charley horse" after the first day of exercise, (2) a man who had two episodes of abdominal discomfort and (3) one man who had an episode of heartburn, he has no basis for believing that the use of the garment produces any adverse side effects.
According to Dr. Ackerman, and it is a matter which may also be a proper subject of official notice, if a person is physically improved he may be in a better psychological state and, thus, he may be more virile. Obesity is one of the causes of loss of sexual prowess. The 10-day period of Dr. Ackerman's study was said by him to be inadequate to achieve the requisite physical improvement. (Tr. 177, 178)
From what has been said, it is apparent that Dr. Ackerman's favorable comments about Slim Gard are thoroughly hedged about with conditions and assumptions. For example, if no figures are mentioned, he believes a person can use this garment and slim down; if no time period is stated, he opines that a person using this garment can trim inches off various portions of his body.
There are other aspects of Dr. Ackerman's study which preclude the placing of any reliance upon any of the reported results -whether those results favor or adversely affect one party or the other to this proceeding. Some of these aspects are: (1) there were no persons who served as controls in the study; (2) measurements were taken with a marked linen tape, which fact militates against objective measurement and reliable results; (3) Dr. Ackerman saw only some of the participants during the course of the study and he was not certain as to the amount of dieting or exercising that was engaged in by any of the various participants; (4) some participants admitted eating or exercising excessively; (5) in taking the weight of the participants, a bathroom-type scale was used which required manual adjustment to zero for each time of use, and these adjustments may vary from time to time; (6) it is not stated how soon after removal of the garment the measurements were taken, but it is known, as stated earlier, that the garment causes constriction of the area over which its is worn and that the constriction decreases with the passage of time after removal of the garment (Tr. 37); (7) such matters as the time and quantity of eating, the presence of gas in the stomach, whether one has defecated or urinated, and the onset or termination of menses affect both body measurements and weight, but no accurate assessment of the impact of these matters was attempted.
It was Dr. Ackerman, however, whose statements were most damaging in terms of the weight to be accorded to the results of his study. Illustrative of the foregoing conclusion are the following statements by the witness:
1. He would have been more comfortable with the results of his study if he had had time to use the participants for a period when the device was not used and he could then have measured them, and then followed this procedure with the same individuals for a period when the device was used and he could have measured them at that time. (Tr. 248)
2. He would have been more comfortable with a more prolonged study and one involving many more subjects. (Tr. 249)
3. "Due to the small number of subjects, the statistical value was not considered to be measureable ***." (Ex. R-3, p. 2; Tr. 294)
4. "Due to the limited duration of the study and the small number of subjects involved, the results cannot be considered to be statistically significant." (Ex. R-3, p. 8, Tr. 294)
When the person conducting a study expresses such lack of confidence in the results of it, there is little wonder if others accord little, if any, weight to those results.
The last witness 4/ to testify on behalf of Respondent was James R. Hanley, who conducted studies involving Slim Gard. Mr. Hanley has a B.S. in Physical Education from Utah State University (1966) and an M.S. in Physical Education from Southern Illinois University (1967). He has had teaching and coaching positions at various places, he is a recognized official in certain interscholastic associations, he holds records in certain athletic events, he is a member of various education and recreation associations, and he described his occupation as that of an educator and free lance writer in physical exercise, muscular development and nutrition. In an affidavit dated July 30, 1973, and submitted, on September 26, 1973, for the record in this proceeding, and in P.S. Docket No. 2/81, Mr. Hanley stated that for the past few years he has "been doing free lance writing for the Weider companies" and that for a few weeks in 1973 he was employed as a "night foreman" in a Weider warehouse, although most of his time during this short period was spent in writing and research activities in regard to Weider products.
Much time could be spent in pointing out the deficiencies of Mr. Hanley's studies, such as, to give only one of many possible examples, the failure to have anyone who simply wore the Slim Gard for the advertised length of time over a 14-day period. It would be needlessly tedious to go through the list of these deficiencies when there are a few obvious defects which utterly negate any claim that these studies have any validity.
For example, in his 1970 "study" Mr. Hanley prescribed a more strict diet than that appearing in Ex. C-2B. (Tr. 529) Again, by Mr. Hanley's own sworn statement he had, at the time of the hearing, been "writing for the Weider companies" for the past few years. (See also Tr. 514-516) In other words, he had a ready market for his writing so long as he produced the right product. It would be fatuous to expect the Weider companies to purchase anything but favorable material. Finally, the Hanley studies were not undertaken to determine under scientifically controlled conditions what would be the results of using Slim Gard as directed in the advertisement. The studies were designed to establish a pre-conceived conclusion, namely: that Weider products, when used singly or in groups, produce loss of weight and reduction in girth.
In short, the close business and personal ties between Mr. Hanley, on the one hand, and Mr. Weider and the Weider companies, on the other hand, the lack - whether conscious or subconscious - of objectivity of the person conducting the study, together with the inadequacy or the absence of proper controls, conditions, methods and materials in regard to the studies, all combine to preclude the placing of credence in the claimed results.
In summary, this record reveals the use by Respondent of an advertisement which, when reasonably construed, gives clear indication that the product "Slim Gard" will produce results, if worn for 15 minutes a day for 14 days, in terms of weight loss and reduction of body measurements of the user and in terms of increased virility and muscular strength. It is only upon the receipt of his order that the purchaser learns that he must exercise and diet in order to accomplish the desired objectives. In addition, the competent, credible evidence in this record is to the effect that the prescribed exercises and diet will, if followed for a sufficiently long time, produce weight loss, girth reductions, and improved muscle tone, but that Slim Gard, while it is unlikely to cause harm to the user, certainly does nothing to fulfill the advertised representations or to accomplish the objectives for which it was purchased.
Upon consideration of the entire record, it is found as a fact that the following factural representations made by Respondent are materially false:
1. That the use of Respondent's product, Slim Gard, promotes virility, strength and muscle power (chg. (3) in the Complaint); and
2. That Respondent's product, Slim Gard, will result in the trimming of inches off a person's middle, waist, hips and lower back (chg. (6) in the Complaint). It is further found as a fact, upon consideration of all the pertinent evidence of record, that there is insufficient proof of the falsity of the charge (number (10) in the Complaint) in regard to the safety of the normal use of Respondent's product by the average person.
Upon the basis of the foregoing findings of fact, it is concluded as a matter of law that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of the provisions of section 3005, Title 39, United States Code.
Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered and they are adopted to the extent herein indicated. 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 as provided by 39 U. S. Code 3005 should be issued against this Respondent.
_________________
1/ The advertisement the Complaint is based on is part of a
two-page
spread on which appear various products offered for sale by
Respondent. The entire advertisement is attached hereto as
Appendices A-1 and A-2.
2/ This case has been cited, quoted and paraphrased many times
including, but not limited to, the following: Gottlieb v.
Schaffer ,
141 F. Supp. 7, at 16 (S.D.N.Y., 1956); Stein v. Pilling ,
256 F.
Supp. 238 (D., N.J., 1966; affd. per curiam 379 F.2d 554, C.A. 3,
1967). In 1968 the prior postal fraud statute was amended by, among
other changes, striking the words "false and fraudulent pretenses,
representations and promises" and inserting in lieu thereof the words
"false representations." (P.L. 90-590, Oct. 17, 1968) This
amendment did not affect the reliance by the courts on the above
language from Donaldson v. Read , and other cases cited in
Read which
were decided before the amendment of the statute, in weighing the
effect of advertising representations. (See Van Dyne Advertising
Agency v. U.S. Postal Service , 371 F. Supp. 1373, D.C.,
S.D.N.Y.
(1974))