In the Matter of the Complaint Against

 HOLT'S SAUNA SLIMMERS
 7471 Melrose Avenue at
 Los Angeles, California 90046

 P.S. Docket No. 4/165;  
 
 08/10/76
 
 Lussier, Edward F.  

 APPEARANCES FOR COMPLAINANT:
 DanielS. Greenberg, Esq.
 Law Department U. S. Postal Service
 Washington, D.C.

 APPEARANCES FOR RESPONDENT:
 Charles B. Chernofsky, Esq.
 Weiss, Rothfarb, Kaminsky & Slade
 New York, N.Y.  

This appeal by Holt's Sauna Slimmers, the Respondent in these proceedings, is from the Initial Decision of Chief Administrative Law Judge William A. Duvall who found Respondent's advertising materially false and recommended the issuance of a mail stop order under the provisions of 39 United States Code § 3005.

Judge Duvall found that the following representations charged in paragraph 2 of the Complaint filed by the Postal Service General Counsel were in fact made by Respondent's advertising and were in fact materially false:

"2. (a) that the user will 'Lose inches in just days by wearing HOLT'S SAUNA SLIMMERS', i.e.:

(1) That the mere wearing of 'Holt's Sauna Slimmers' (hereinafter referred to as the 'suit') will cause loss of inches;

* * * * *

2. (c) That the wearing of the suit adds significantly to any permanent loss of inches or weight which may be effected by following the diet accompanying the suit together with a moderate exercise program;

2. (d) That repeated wearing of the suit will have cumulative results, thus causing the effects enumerated in subparagraphs (a) through (c), supra, to be achieved to a greater degree each time the suit is worn;"

Respondent takes exception both to the findings that the advertising (Appendix A to this Decision) makes the representations and to the findings that the representations are false. Respondent contends that the advertisement read as a whole does not convey these representations. It points, for example, to the statement that "All you do is wear the Slimmer Suit each day while you do some simple exercises" as negating any impression that merely wearing the suit will produce the heralded results. It points also to that part of Judge Duvall's decision which expressly recognized that there is language in the body of the advertisement which can be construed as limiting or withdrawing to some degree from the broadness of that representation.

In my view Judge Duvall properly evaluated the advertisement's meaning to the ordinary reader. It appears quite obvious that the whole thrust of the advertisement is to proclaim the value of the Sauna Suit which is the item being merchandised by Respondent. The reference to exercise is meager by comparison. It may also be noted that Respondent's own written material mailed with the Sauna Suit consists principally of a recommended diet and, while advising that, for maximum effect, the Sauna Suit should be worn on a variety of listed occasions, which include "sleeping," as well as housework, gardening, etc., merely states that a reasonable amount of moderate exercise must be taken to maintain body and muscle tone.

Respondent's contention that the language in the advertisement referring to exercise has not been given proper weight in evaluating the net effect of the advertisement upon the reader is not persuasive. I think it clear that the reader is led by the advertising to the reasonable belief that it is the wearing of the Sauna Suit that will produce the loss of inches in a matter of days.

Respondent defends the truth of this representation by referring to the testimony of Complainant's expert witness, Dr. Cordaro, that a person wearing the Sauna Suit could possibly lose fluids through perspiration and if enough fluid were lost there could be a loss of weight and measurement. Dr. Cordaro also testified, however, that any such loss would be replaced very quickly and immediately after intake of food or fluid and that the body has an exquisite system for compensating for any loss and maintaining fluid balance.

As to the representations that wearing of the Sauna Suit contributes significantly to any permanent weight loss otherwise obtained and that it has cumulative effects, these are clearly suggested by the advertising as pointed out in the Initial Decision. Respondent contends no such implications are present and that "The advertisement makes no claim other than permanency will be obtained only through diet and not through use of the garment" (Appeal Brief, p. 8). The bold statement that inches can be lost "in just days" conveys cumulative effect. The statement in the body of the advertisement that "To make the loss permanent we recommend that you follow the diet plan which we enclose with each order and which we believe is easy to follow" clearly suggests, as Judge Duvall found, that the diet plan and garment work together to bring about the permanent results. This is all the more emphasized by the further claims in the advertising referring to "this amazing plan" and to "Many people who had almost given up hope of losing weight have found the 'Holt' method the answer to their dreams."

The falsity of these representations is established by the testimony of Dr. Cordaro. Respondent's contention that Dr. Cordaro's testimony in effect proves just the opposite because it establishes that a cumulative effect is possible if the body fluids are not replaced overlooks his testimony that any such effect presupposes a conscious restriction of food and fluid intake and flies in the face of his further testimony that the body would replace any fluid loss by demanding more water and that the body functions normalize the fluid balance.

The Respondent's exceptions to the findings and conclusions in the Initial Decision are without merit and are accordingly disallowed. The Initial Decision is hereby affirmed and a remedial order under 39 U.S.C. § 3005 is being issued forthwith.