In the Matter of the Complaint Against WEIDER DISTRIBUTORS, INC. d/b/a JOE WEIDER, 55 Maple Street at Norwood, New Jersey 07648 P.S. Docket No. 3/27 July 17, 1974 William A. Duvall Chief Administrative Law Judge Lee H. Harter, Esq., James J. Robertson, Esq., Law Department, United States Postal Service, Washington, D. C., for Complainant Sheldon S. Lustigman, Esq., Bass and Ullman, 747 Third Avenue, New York, New York, for Respondent
The Complaint in this proceeding was filed on March 29, 1974. The Complaint was filed by the General Counsel for the United States Postal Service, who is the Complainant. In the Complaint it is charged that the Respondent 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 of Title 39, United States Code.
The answer was filed on behalf of the Respondent, Weider Distributors, Inc., doing business as Joe Weider, 55 Maple Street, Norwood, New Jersey. The answer was filed on April 16, 1974. In the answer it is admitted that the Respondent offers for sale through the United States mail a product designated by Respondent as "Slimmer Shake," and/or "Joe Weider's Weight Loss Formula, XR-7." Otherwise, Respondent denies the allegations in the Complaint.
Continuances were granted at the request of each party until the matter came on for hearing on June 12, 1974, pursuant to notice. Both parties were represented at the hearing by counsel who examined or cross-examined the witness who appeared.
In the Complaint the specific charges made by the Complainant are set forth in paragraphs V. and VI. as follows:
"V. That by and through the use of the advertisement identified as Exhibit A, Respondent represents directly or indirectly, in substance and effect:
(1) That use of Respondent's product will cause the user to lose 1 pound a day and/or 14 pounds in 14 days;
(2) That the use of Respondent's product can accomplish the weight losses, described in subparagraph V (1) without the loss of strength or vigor;
(3) That Respondent's product is especially efficacious for the production of weight losses among those who are 'exceedingly over weight';
(4) That Respondent's product is a 'milkshake- flavored drink';
(5) That, 'Even chubby guys who won't even lift a finger can loose up to a pound-a-day, 14 pounds in 14 days - just drinking the 'SLIMMER'SHAKE' or that these weight losses can be accomplished without the necessity of engaging in physical exercise;
(6) That use of Respondent's product enables its users to improve their physical condition quickly without the necessity of engaging in physical exercise;
(7) That the represented weight losses can be accomplished without the necessity of restricting caloric intake;
(8) That use of Respondent's product is universally safe;
(9) That Respondent's product has been tested by a leading university, in a controlled study, and found to be efficacious for the purposes of producing the above described weight losses;
(10) That the purchaser of Respondent's product can have their money refunded if they are not satisfied."
"VI. The foregoing representations, set forth in paragraph V, are materially false as a matter of fact."
On behalf of the Complainant, there were received in evidence in this case the following exhibits:
CX-1 is an advertisement appearing in the Winter 1973 Catalog of Joe Weider, a part of which is devoted to the product called "Slimmer Shake."
CX-2 is a copy of an order form taken from the same issue of the Weider catalog.
CX-3 is a test letter prepared at the direction of the Inspector who investigated this case, addressed to the Respondent and ordering the product.
CX-4 is a photostatic copy of the envelope addressed to the Respondent and bears the return address of Clarke Knight of Woodland, Maine.
CX-5 is a form which contains instructions to the Postmaster at Woodland, Maine, to forward a money order to the Respondent and help in the completion of the transaction.
CX-6 is a mailing carton that bears a shipping label on it. The name of the addressee is Clarke Knight, Post Office Box 113, Woodland, Maine, and the shipper's name is Weider Distributors, Inc., 55 Maple Street, Norwood, New Jersey.
When received that carton contained a supply of 12 cans of the product, which is referred to as the "Slimmer Shake" or as Formula XR-7, one can of which was received in evidence as CX-7).
CX-8 is a request for a refund, which is undated, addressed to the Respondent.
CX-9 is a letter bearing the letterhead of Joseph Weider, dated April 25, 1974, addressed to Mr. Clarke N. Knight, Post Officer Box 113, Woodland, Maine 04694, referring to the recent request for a refund.
The envelope in which that letter from the Respondent was received (CX-9A) is postmarked April 26, and it is stamped as having been received in Woodland, Maine as April 29.
In Exhibit CX-9 the Respondent requested that the addresses forward the empty containers of the product with which the addressee stated he was dissatisfied.
CX-10 is a letter, undated, from Clarke N. Knight to the Respondent stating that the empty cans were not available, but repeating the statement about dissatisfaction about the product, and, again, requesting a full refund of $11.33 paid by money order.
On page two of CX-10 under date of June 5, 1974, the writer of the request for refund is requested to please advise the Respondent when the product was ordered, and the date of the check. That is followed by the words, "Thank you. Mrs. G. Smith - Custr. Serv." And that was received in Woodland, Maine, addressed to Clarke N. Knight on June 7, 1974.
So far as the record shows there has been no response by Clark N. Knight to the June 5 communication from the Respondent.
P A G E 6 of this DECISION is missing. to this decision as Appendix A.
Examination of this appendix makes it clear that the Respondent does represent that the use of the Respondent's product will cause the user to lose one pound-a-day and/or 14 pounds in 14 days. As Respondent's Counsel points out, the language of the advertisement does say "lose up to a pound-a-day or 14 pounds in 14 days without losing your strength and vigor."
The words "up to" are deceptive. The person who is interested in losing weight will glide over these words consciously or otherwise, and what will catch his eye will be the higher weight losses that are promised. And, of course, the entire tenor of this ad is that persons who are taking this product will enjoy a striking loss of weight.
Charge 2 of paragraph V of the Complaint also appears in the advertising literature used by the Respondent - that the person would lose the pound-a-day or 14 pounds in 14 days without losing strength and vigor.
The Respondent also represents that the product is especially efficacious for the production of weight losses among those who are "exceedingly over weight."
The Respondent also represents that the product is a milk-shake- flavored drink.
It is stated in the advertisement, as set forth in Charge 5 that even chubby guys who won't even lift a finger can lose up to a pound- a-day, 14 pounds in 14 days just by drinking the Slimmer Shake. That representation is specifically made in language appearing in Respondent's advertisement.
Charge No. 6 is that the use of Respondent's product enables its users to improve their physical condition quickly without the necessity of engaging in physical exercise. In this connection, Respondent does not actually mention exercise, but he suggests that it is not necessary because the Respondent talks about chubby guys who won't even lift a finger being able to lose up to a pound-a-day or 14 pounds in 14 days simply by drinking Slimmer Shake.
There is no mention in the Respondent's advertisement about a reduction of caloric intake as referred to in Charge No. 7, but the statement is made that all that is necessary for a user of this product to do is simply to drink the Slimmer Shake. Therefore, the suggestion there clearly is, and it would be so interpreted by the average reader, that it is not necessary to restrict caloric intake or to do anything, other than to drink the Respondent's product.
Again, there are no caveats appearing in the Respondent's advertising material. So, the clear implication is that the Respondent's product is universally safe, as set forth in Charge 8 of paragraph V.
Charge 9 of paragraph V is to the effect that Respondent represents that Respondent's product had been tested by a leading university in a controlled study, and found to be efficacious for the purposes of producing the above-described weight losses.
I fail to find and Complainant has not shown where this charge is made. The statement is made in the advertising material, but the statement refers to a Slimmer's Kit, which is composed of two parts: one, Joe Weider's Slim Guard and, two, the Slimmer Shake, so there is no statement restricted to the Slimmer Shake, alone, that the product has been tested by a leading university. I find that the representation is not made.
On both the advertising material and the order blank, there is the clear statement that in connection with the purchase of this product there is a money-back guarantee. No conditions are stated in connection with that money-back guarantee. Respondent makes the representation set forth in Charge 10.
The next question to be disposed of is whether the representations found to have been made by the Respondent are materially false as a matter of fact, or whether they are true in fact.
Testifying in connection with this issue was Dr. Jack Crowell, who is a specialist in internal medicine and is Board qualified in that field. Dr. Crowell testified that in more than 90 percent of the cases of obesity the cause is the ingestion of more calories per day than the body expends in its daily activity. He further stated that the way to lose weight is to reduce the number of calories ingested below the number of calories expended, so as to produce a caloric deficit. Now, if the loss of weight is to be a loss of fat, the caloric deficit to be produced must be 3500 calories, but if the loss of weight that is to be produced is to consist of fat and water, then a caloric deficit of 2600 calories could produce that loss of body weight.
The real crux of this case is the assurance by the Respondent that the taking of this product as directed would produce weight loss of up to a pound-a-day or 14 pounds in 14 days. Dr. Crowell testified that such weight losses are possible, but he stressed the word "possible," and he indicated that such weight losses would be more apt to occur in persons who are extremely or exceedingly obese, than in persons who were not so obese.
The foregoing statement was made in response to a question that contemplated the taking of Respondent's product for a period of 14 days to the exclusion of the user's normal diet. When it was pointed out to Dr. Crowell that there are only 12 cans of the product in the carton received in response to one order, and when it was further pointed out that the user is directed to substitute this product for one or two meals each day to help keep weight in balance (although XR-7 can be used periodically as the total daily diet, four servings a day, in place of breakfast, lunch and dinner and a bedtime snack) then Dr. Crowell stated that as the amount of the intake of this product in lieu of the normal diet is decreased, and the amount of the intake of the normal diet is either maintained or increased, then, or course, the amount of weight that would be lost would be lessened.
Thus, the expert medical testimony in this case leads to the conclusion that Charge 1 of paragraph V is false, and materially false as a matter of medical fact.
With respect to Charge 2 of the Complaint, the medical testimony is to the effect that the taking of Respondent's product as indicated for a period of 14 days, would not produce any significant loss of strength or vigor. I find, therefore, that there is insufficient proof in this record to sustain a finding of the falsity of this charge.
As to the product's being especially efficacious for the production of weight losses among those who are exceedingly over weight, Dr. Crowell stated that it is a general rule that when a person launches into a reduced caloric program, the more the person weighs the more he may be able to lose. In regard to this case, this statement presumes that the user will stay on the product and will have sufficient willpower to adhere to it. In any event, there is not sufficient proof in this record to establish the falsity of this charge.
There is no proof whatsoever as regard to the truth or falsity of the product being a milkshake-flavored drink, except the statement that appears in the advertisement. There is simply no proof that that statement is false.
What was said with respect to Charge 1 may be repeated with equal applicability with respect to Charge 5 of paragraph V, and in substance, this was that it is possible that an individual would lose a pound-a-day and 14 pounds in 14 days, but it is unlikely that those results would occur. It follows that this charge, which has been found to be made by Respondent in the form of the representation in its advertising material, is materially false, as a matter of fact.
With respect to Charge 6 of paragraph V, previously noted was the fact that exercise, as such, was not mentioned in the Respondent's advertisement. Although reference is made to the fact that athletes use the product, the failure to mention a fact in advertising material can be just as false and just as misleading as a positive misstatement of fact. So, again, while some people may experience the weight loss as promised by the Respondent, it is unlikely that such losses will occur. If there is no physical exercise involved, it is even less likely that the losses will occur. This misrepresentation is a material one.
What has been said with respect to Charge 6 concerning the necessity of engaging in physical exercise is equally applicable to Charge 7 in paragraph V regarding the necessity of restricting caloric intake. There is no statement whatsoever about caloric intake in the language of the advertisement. In fact, the indication is that all one has to do in order to achieve these remarkable weight losses is to drink the Respondent's product as directed. It might even be construed reasonably to indicate that one could lose weight by adding the ingestion of the Respondent's product to his regular diet. In any event, the representation set forth in Charge 7 of paragraph V of the Complaint is materially false, as a matter of fact.
In regard to Charge 8 of paragraph V of the Complaint, the evidence is that obesity is a common condition in the population of this country and that in obese persons it is common to find the conditions of hypertension and diabetes. In such persons -- even taking this product for as short a period of time as 14 days -- there is a possibility that they may be adversely effected. On the other hand, as the person drifts away from the use of this product to the exclusion of his normal diet, it would follow that the risks he assumes by taking this product would be decreased. The evidence of a medical nature adduced in this record leads to the conclusion that the representation set forth in Charge 8 of paragraph V of the Complaint is materially false, as a matter of fact.
It previously has been determined that Charge 9 is not made by the Respondent.
Charge 10 of paragraph V of the Complaint deals with the refund to dissatisfied customers. Clearly, the offer is made that persons who are dissatisfied have a money-back guarantee.
Evidence received at this hearing shows that the request for refund was sent to the Postmaster at Woodland in March of this year, and that request for a refund was first replied to on April 25. Respondent's reply requested the forwarding of the empty containers. That letter was responded to on May 29, and that elicited the response from the Respondent on June 5, 1974, in which the Respondent now asks for the date of the check. There was no check, of course, but there was the money order. A period of approximately two-and-a-half months have elapsed since the original request for a refund was made. If there were a bona fide intent to refund the money to dissatisfied purchasers, it would have been made long before now, whether the cans were returned or whether the date of the check was submitted, or whether the customer did any of these other things that are being demanded piecemeal by this Respondent. Therefore, it is found that the refund promise is a misrepresenta- tion by the Respondent, and it is a material misrepresentation.
In view of the findings heretofore made with respect to the individual charges set forth in the Complaint, it is concluded, as a matter of law, that the Respondent 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 of Title 39, United States Code.
Having so found and concluded, it follows that an order, as provided by 39 U.S. Code 3005, should be issued against this Respondent.
_________________