In the Matter of the Complaint Against RICHARD, RICHARD L. MORRIS REPORTS, Post Office Box 4307 at Inglewood, California 90309 P.S. Docket No. 3/160 May 30, 1975 William A. Duvall Chief Administrative Law Judge Thomas A. Ziebarth, Esq., Law Department, United States Postal Service, Washington, D. C., for Complainant No Appearance by Respondent Before: William A. Duvall, Chief Administrative Law Judge
On or about March 4, 1975, the Consumer Protection Office of the Law Department for the United States Postal Service, the Complain- ant, filed a complaint in which it was charged that Richard and Richard L. Morris Reports, Inglewood, California, (hereinafter referred to collectively as the Respondent) are 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 specific charge in the complaint is that the Respondent, by advertising materials copies of which were attached to the complaint, and also, copies of which were received in evidence as Complainant's Exhibit 1 and Complainant's Exhibit 4, is making the following representations which are alleged to be material and false:
"(a) That the AMAZING NATURAL METHOD will enable an obese person to lose large amounts of weight ('I lost 51 pounds') while eating all he wants;
"(b) That the weight loss achieved by adherence to the AMAZING NATURAL METHOD will be permanent; and
"(c) That a person using the AMAZING NATURAL METHOD will lose weight at a rate of between 3 and 6 pounds per week."
Inspector Gerald E. Raftery testified that in the course of his duties he was called upon to, and did investigate the activities of this Respondent. His investigation was initiated when he found the advertisement which is Exhibit C-1, appearing in the December 16, 1974, issue of the publications entitled "Midnight."
Under the test name of John Gaines at Overton, Nevada, the Inspector wrote to the Respondent and asked for information concerning his reducing program. In response to this inquiry, the Inspector received from the Respondent a circular identified as Exhibit C-4 entitled "INTRODUCING From the Orient Nothing Like it in America LOSE WEIGHT - EAT ALL YOU WANT."
Using another name, that of Thomas Innis of Mercury, Nevada, the Inspector ordered the product from the Respondent, and remitted the required purchase price of $6.95. In response to this order, the Inspector received, on or about December 23, 1974, a pamphlet which was received in evidence as Exhibit C-7, and bears the title "HOW I LOST 51 POUNDS WITH AN AMAZING NEW METHOD FROM THE ORIENT."
Called as a medical expert by the Complainant was Dr. Vincent F. Cordaro, a medical doctor who by virtue of his education, training, and experience is well qualified to testify in the area of medicine which is involved in this proceeding.
Dr. Cordaro testified that he had examined the diet plan which is set forth in Exhibit C-7, and that the substance of the diet is that the user is to consume foods on a three-to-one basis...the "three" representing foods that are grown over or on top of the ground, and the "one" representing foods that are grown under the ground. Dr. Cordaro stated that to indicate that all foods that are grown underground have more calories than foods grown over ground is not necessarily true in every case. Therefore, the basic theory underlying the diet offered and sold by the Respondent is fallacious.
The witness stated that regardless of the type of diet that is being followed by any individual, he may not eat all that he wants and expert to achieve a weight loss. The witness explained that calories are calories, and, if taken in sufficient quantity, they produce a gain of weight regardless of the source from which they come.
In order for an individual to achieve a weight loss and maintain the reduced weight, it is necessary that the individual go on a restricted caloric intake, with appropriate exercise, for a sufficient period of time in order to achieve the desired weight. After the desired weight has been achieved, only that caloric intake may be added to the diet of the user which will sustain the weight which the dieter has achieved. There is nothing magic about the diet being sold by this Respondent which would permit the user to reach the weight that he desires, and then resume his former eating habits without the individual's gaining weight, if those eating habits provide a greater caloric intake than the individual's caloric expenditure.
In Complainant's Exhibit C-4, which is the advertising circular signed Richard L. Morris, two illustrations are given. One such illustration is stated as follows:
"My friend, George P, took off 15 pounds a month while eating all he wanted. Three months after using this amazing plan, he was 45 pounds lighter."
If George P. took off 15 pounds a month, he achieved a rate of weight loss of three and three-quarters pounds a week.
The testimony of the medical expert in this proceeding is that in order to achieve such a weight loss as that, the person involved would have to give up eating altogether, and engage in an excessive amount of exercise, to create a sufficient caloric deficit.
The second illustration appearing in Exhibit C-4 is the one in which the writer of the brochure is speaking of himself. In this illustration, he states as follows:
"When I first used this easy - eat all you want - way, I took off 13 pounds the first two weeks. And my weight kept coming off fast and easy until I lost 51 pounds."
This rate of weight loss would be almost at the rate of a pound a day. It is within the realm of possibility that a person might achieve a three and three-quarters pound per week weight loss, but it approaches and probably reaches the realm of physiological impossibility for a person to lose six pounds a week by the sole means of dieting. When this fact is coupled with the representation that the dieter can achieve this weight loss while still eating all he wants, there is no question as to the truth or falsity of this representation.
The testimony given by the postal inspector clearly established that the Respondent uses the mails in the conduct of this business.
The advertising literature which appeared in the publication entitled "Midnight", together with the advertising materials mailed by Respondent in answer to requests, clearly establish (1) that the Respondent makes the representations which are set forth in the complaint, and (2) that these are material representations.
The testimony of the medical expert in this case establishes beyond question that the representations found to be made by the Respondent are false as a matter of fact.
On the basis of the foregoing considerations, 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 representation within the meaning of 39 U. S. Code 3005.
Having so found and concluded, it follows that an order of the type prescribed by Section 3005 of Title 39, United States Code, should be issued against this Respondent.
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