In the Matter of the Complaint Against S. C. A. P. O. Box 246 at Ridgecrest, California 93555 P.S. Docket No. 3/20April 29, 1974
William A. Duvall Chief Administrative Law Judge
Lee H. Harter, Esq., Law Department, United States Postal Service, Washington, D. C., for Complainant No Appearance For Respondent
This proceeding was initiated on March 13, 1974, when the complaint was filed by the Assistant General Counsel for the Consumer Protection Office of the Law Department of the United States Postal Service.
The complaint charges that the Respondent, S.C.A., at Ridgecrest, California, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations, contrary to the provisions of Section 3005, Title 39, United States Code. The scheme or device with which the Respondent is charged is the sale through the mails upon allegedly false representations of a diet plan or program.
This case was investigated by Postal Inspector Gerald Raftery, who received as unsolicited mail matter a circular from the Respondent. This circular was received through the mail, addressed to a test name used by Inspector Raftery in the performance of his duties. This circular will be copied and made Appendix A to this decision.
After the receipt of the circular, the Inspector followed up by ordering the product from the Respondent using the test name to which the circular matter had been addressed. In due course, in response to the order which was accompanied by the required remittance, the Inspector received the Respondent's product, which is a 16-page booklet outlining the diet program being sold by the Respondent.
In the complaint it is charged that the Respondent makes the following representations:
"A. that the average obese person following the Respondent's method will lose 25 pounds of fat in two weeks:
B. that by eating more of the Respondent's so-called 'non-storable' foods in addition to normally consumed food, the average obese person can lose weight; e.g., This NEW DIETARY BREAKTHROUGH now permits you to eat all your favorite foods as long as you eat MORE of the fat burning, non-storable foods; etc.
C. that the average obese person can follow this plan without counting calories;
D. that the average obese person can lose weight by eating as much as he wants; e.g., THE MORE YOU EAT, THE MORE YOU LOSE;
E. that the Respondent's method of weight reduction is 'new'; and
F. that little willpower is required to successfully lose weight with Respondent's method; e.g., Fortunately, most of the non-storable foods are the kind you presently eat, so very little willpower is needed to lose even 50 pounds or more."
The first question to be answered is whether in fact the Respondent makes the representations which are set forth in the complaint.
Looking at the circular which is Appendix A to this decision, it is found in regard to charge (a) above that the charge encompasses language used by the Respondent in paragraph number five of the advertising circular. The caption of this paragraph consists of the following language: "LOSE 25 USELESS POUNDS IN TWO WEEKS."
The language on which charge (b) is based is found in several places in the Respondent's advertising material, including among others, the paragraphs numbered one and four of the advertising circular.
The language in charge (c) to the effect that the average person can follow this plan without counting calories is also found in paragraph one of Appendix A.
Charge (d) of the complaint is based on language found in paragraph four of Appendix A.
Charge (e) is found in a number of places in the Respondent's advertising material, one of such places being in the fifth sentence of paragraph four, and also another of those places being about half way through paragraph seven of the Respondent's circular.
The charge in number (f) of the complaint to the effect that the person following this diet in losing weight will have to exercise but little will power is based on language that appears, among other places, near the end of paragraph one, and in paragraph number seven.
Applying the rule that was stated in the case of Donaldson v. Read Magazine (333 U.S. 178 at 188-9) which is to the effect that in construing advertising material in a situation such as is presented in this case, consideration must be given to the effect that such advertisements would most probably produce on ordinary minds.
In addition to charging that the Respondent makes the foregoing representations, Complainant also charged that these representations are materially false as a matter of fact.
Complainant called as an expert witness in regard to this phase of the matter Dr. Vincent F. Cordaro, a medical doctor who is well qualified by virtue of his training, experience, and his familiarity with the literature in the field to testify in regard to matters involved in this proceeding.
Dr. Cordaro testified that it is medically impossible for the average obese individual to lose 25 pounds of fat in two weeks, and that any person who persevered in a serious effort to achieve such a weight loss would be subjecting himself to undue and severe medical risks.
Dr. Cordaro also testified that the terms "storable" and "nonstorable" foods have no medical significance whatsoever. If a person wants to lose weight and purchases this diet program, and follows the Respondent's instructions, that is, follow his present diet and simply add the so-called non-storable foods to his regular diet, the only possible result is a gain in weight, which is directly opposite to what the person set out to do.
In regard to the average person's ability to follow this plan being sold by the Respondent without counting calories, reference is made to page 11 of the so-called plan sold by the Respondent, where near the bottom of the page there is the paragraph that begins,
"REMEMBER; Calories do count]" There the individual is advised that certain foods contain more calories than others, and that if everything is going well, at about the third month of the program, he should slowly start to cut back on certain calories until he reaches the reasonable amount per day.
By these instructions, of course, the Respondent has negated the promise that he made in the sales literature. In regard to charge (d) of the complaint, the expert medical testimony is to the effect that most obesity is caused by ingestion of too much food, so that it is sheer nonsense to indicate, as the Respondent does, that the average obese person can lose weight by eating as much as he wants.
Obese people who want to lose weight are generally aware of the difficulties of staying on a diet, so that they are susceptible to the claims of people who promise that they can lose weight without having to give up the food that they so dearly like. It seems that there is no end to this tendency of persons to continue to look for that magic remedy which will permit them to lose weight without reducing calories, and the medical testimony in this and every other case that I am aware of is that without the reduction of calories, or except for the presence of some serious and most undesirable physical malady, there is simply no reduction in weight.
The Respondent's method of weight reduction is not new. The medical testimony is that the system proposed by this Respondent is typical of many that he has seen in connection with his duties with the Food and Drug Administration, and it is typical, also, of others that he has seen advertised from time to time.
In connection with the last charge of the complaint, it is a matter which is almost, if not quite, susceptible of official notice, that in order for persons to lose weight, the exercise of will power is an absolute necessity. It is not necessary to rely, however, on official notice of such a matter, because the medical testimony in this proceeding is that the exercise of will power would certainly be required of an individual who attempted to follow the diet plan which is suggested by this Respondent on page of the program that he is selling.
On the basis of the entire record in this case, it is found that the Respondent is engaged in the sale of a product through the mails.
The product which is being sold by Respondent is a so-called diet plan allegedly designed to produce loss of weight.
In connection with the sale of this plan, the Respondent mails the circular which is attached to this decision as Appendix A.
In Appendix A, the Respondent makes the representations which are set forth as charges in paragraph three (a) through (f) of the complaint.
The representations found to be made by the Respondent are materially false as a matter of fact.
On the basis of the foregoing findings of fact, it is concluded that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of misrepresentations contrary to the provisions of Section 3005 of Title 39, U.S. Code.
Upon the basis of the foregoing findings of fact and conclusion of law, it follows that an order of the type provided by Section 3005, Title 39, U.S. Code, should be issued against this Respondent.
In a letter to the Docket Clerk with which the Respondent transmitted his answer, the Respondent indicated that this advertising circular, of which Appendix A is a copy, has been in the process of being rewritten since January of 1974.
The mail activity that took place in connection with this case, including the receipt of the unsolicited circular matter, the ordering and the receipt of the product being sold by this Respondent all took place in the month of February 1974. Therefore, it is obvious that the Respondent is still receiving remittances based on the advertising material which is in evidence in this case.
In the absence of evidence that no further remittances are being received in response to the advertising which is in evidence in this case, the issuance of the order previously described clearly is warranted.
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