In the Matter of the Complaint Against: HOLT'S SAUNA SLIMMERS, 7471 Melrose Ave. at Los Angeles, California 90046 P.S. Docket No. 4/165 05/14/76 Duvall, William A., Chief Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Charles B. Chernofsky, Esq. Weiss, Rothfarb, Kaminsky & Slade, 6 East 43rd Street, New York, New York, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated on February 10, 1976, when a Complaint was filed by the General Counsel for the United States Postal Service, the Complainant, in which it is alleged that Holt's Sauna Slimmers of Los Angeles, California, 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, Title 39, United States Code. The enterprise in which Respondent is engaged is the sale of a garment or garments for use in a weight reduction program by the purchaser.
In the Complaint it is charged that in the advertising material used by Respondent the following representations are made and that they are materially false:
"(a) That the user will 'Lose inches in just days by wearing HOLT'S SAUNA SLIMMERS', i.e.:
(i) that the mere wearing of 'Holt's Sauna Slimmers' (hereinafter referred to as the 'suit') will cause loss of inches;
(ii) that said loss will be permanent;
(iii) that, alternatively, said loss will be for a significant, although temporary, period of time;
"(b) That the suit works on the same principle as Finnish Sauna Bath;
"(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;
"(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."
In support of the Complaint, the Complainant introduced into evidence, on the basis of the stipulation between the parties, certain exhibits which establish that the Respondent does advertise its products, that it does solicit remittances through the mails and, in connection with this activity, the Respondent does make certain representations. With respect to whether the Respondent does make the representations set forth in the Complaint, it is necessary to compare the charges with the advertising material used by the Respondent. Charge 2(a), namely, that the user will lose inches in just days by wearing Holt's Sauna Slimmers, is language that appears in the caption of the advertisement used by the Respondent. There is no question, therefore, but that the Respondent does make this representation. There is language in the body of the advertisement which can be construed as limiting or withdrawing to some degree from the broadness of the representation as made in the first three lines, but there is just no question at all but that the Respondent does make that representation.
The next representation, 2(a)(i), is that the mere wearing of Holt's Sauna Slimmer will cause the loss of inches. If the English language means anything, that is precisely what is meant by the caption, which comprises the first three lines of Respondent's advertisement -- that it is in fact the Holt's Sauna Slimmers which cause the loss of inches. This impression is enhanced by the illustrations appearing on the advertisement, drawings of a very slender young lady who is wearing one or more of the garments.
Next it is charged, 2(a)(ii) that the Respondent represents that the inch loss that thus occurs will be permanent. I find that this representation is not made by the Respondent. In the advertisement there is language about entering on a diet program in order to make the inch loss permanent, but it is not represented in this advertisement that the mere wearing of this device will bring about a permanent loss in inches.
The Complainant charges next, 2(a)(iii), that the inch loss will be for a significant, although temporary, period of time. I am at a loss to know what this charge means and I fear that the Complainant is in the same situation, because the Complainant's counsel said that he would not attempt to define a "significant, although temporary," period of time. If the Complainant cannot define the term, I do not think that the Respondent should be called upon to come forth with that definition. This charge must be dismissed because of its indefiniteness.
Charge 2(b) of the Complaint is that the suit works on the principle of a Finnish Sauna Bath and the making of that representation is admitted by the Respondent.
The charge in paragraph 2(c) of the Complaint is that the wearing of the suit adds significantly to any permanent loss of inches of weight which may be effected by following the diet accompanying the suit, together with a moderate exercise program.
The purpose of the suit or garment is to contribute to a loss of weight and the purchaser is told that, to make the loss permanent, the purchaser should follow a diet plan which will be sent with the garment. The suggestion, clearly, is that the garment and the diet plan work together to bring about the results of a permanent loss of inches or weight. Therefore, the representation which is set forth in the Complaint as paragraph 2(c) is a representation that is made by the Respondent.
The representation that is paragraph 2(d) of the Complaint, while not expressed in haec verba in the Complaint, is certainly the impression that the reader of the advertisement would receive, and it is, therefore, implied in the advertising matter used by this Respondent.
Called as a witness by the Complainant was Dr. Vincent F. Cordaro, a medical doctor, who, by virtue of his experience, training, education and present occupation is well qualified to testify with respect to matters involved in this case.
Dr. Cordaro stated that obesity is caused by overeating, and that this type of obesity represents 95 percent of the cases of obesity. Overeating is caused by psychological factors, habit, gluttony, and heredity bears some part of the blame for overeating.
The treatment of patients who are obese that is recognized by the medical profession is to take a history of the particular patient and to tailor a diet to the patient's need that will incorporate the proper caloric reduction. The patient is also advised to engage in a moderate exercise program in connection with the diet.
Commenting on the device which is sold by the Respondent and which was received in evidence as Complainant's Exhibit 6, Dr. Cordaro stated that the wearing of this device as directed would cause a fluid loss which would result in the loss of weight represented by the weight of the fluid thus lost. Such fluid loss would be of a temporary nature and the weight thus lost would be offset by the regaining of weight which would result from the ingestion of food or fluid by the person who had worn the garment. When asked whether the fluid lost would be cumulative the response was that if not all of the fluid is replaced that the loss would be cumulative, but that the body has a constant fluid requirement which must be supplied and that this requirement cannot with safety be reduced over a long period of time. In other words, the body's fluid requirements must be met or almost met or the individual would suffer physically.
A Finnish Sauna Bath was described as an area in which heat is injected or in which steam is created by pouring water over hot stones. By these methods the body is caused to perspire and this results in a fluid loss by any person in this enclosed area. The garment sold by this Respondent is so constructed that there is an area, or there are areas, of the body from which air is excluded, with the result that the areas so covered would perspire and fluid would be lost in those areas. Since the principle of the sauna bath is to cause fluid loss by perspiration, it is the same as the principle in the product sold by this Respondent: namely to cause loss of fluid by perspiration in the area covered. The testimony in this record is to the effect that the principle involved in one is the same as the principle involved in the other.
Accompanying the garment is a diet plan or program which Dr. Cordaro stated would result, very likely, in a loss of weight in most obese persons because it is a diet involved with the restriction of caloric intake. The effect of following the diet would not be enhanced or improved in any way by the wearing of the garment sold by the Respondent.
Based on the testimony that is in the record of this proceeding, it is found that the Respondent's representations are false in the following respects.
The user of this garment will not lose inches or weight in just days by wearing Holt's Sauna Slimmers. Therefore, the charge found in paragraph 2(a) of the Complaint is false. The charge found in subparagraph 2(a)(i) of the Complaint is false because the testimony of the medical witness is that such loss of weight as occurs to Respondent's customers will occur as the result of the combination of dieting and exercise or diet alone and that nothing will be gained in terms of inches or weight loss by the wearing of the garment.
The Respondent does not make the representation found in subparagraph 2(a)(ii) of the Complaint.
The representation that is set forth in paragraph 2(a)(iii) of the Complaint must be dismissed for indefiniteness.
The representation that is set forth as paragraph 2(b) of the Complaint is true, because the suit sold by the Respondent does work on the same principle as a Finnish Sauna Bath. It is not known whether it works with the same degree of efficiency or effectiveness, but that is not the issue in these proceedings, based upon the language of the Complaint.
The testimony of the medical expert makes it clear that the charge set forth in paragraph 2(c) of the Complaint is false.
The same is true with respect to the charge that is set forth in the Complaint as paragraph 2(d).
The findings with respect to whether these charged representations have been made by the Respondent are based upon the decision of the Supreme Court of the United States in the case of Donaldson v. Read Magazine, reported at 333 U.S. 178 at pages 188 and 189, where the court said "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 way as to mislead." The Court then goes on to say that advertising is to be interpreted in the light of the impression that would be created in the mind of the average reader.
In another case, Borg-Johnson Electronics v. Christenberry, reported at 169 F. Supp. 746 at page 751, the United States District Court for the Southern District of New York stated that "When it appears that an advertiser deliberately induces its patrons to purchase its product in the belief that its value far exceeds its true worth it is sufficient to support a finding that a fraudulent scheme was being conducted."
Of course, the question of fraud is not involved in this proceeding. Otherwise, I believe that the last quotation is particularly appropriate in this situation, because the clear import to the reader of Respondent's advertisement is that the wearing of the garment that is offered for sale will make a contribution to the purchaser's objective of losing inches and weight. The testimony that is of record in this proceeding by a medical expert is that the wearing of this garment will have no such effect. It is pointed out, further, that this case has been pending since February. The Respondent has definitely had opportunity to consult with medical experts and to have had expert medical testimony at this hearing. But there has been no such testimony, which leads to a further statement that "uncontradicted testimony of one qualified medical expert establishes a universality of medical opinion" in matters such as have been heard today and this proposition is supported by the decision of the court in the case of U.S. Health Club, Inc. v. Major, reported at 292 F.2d 665.
Proposed findings of fact and conclusions of law submitted by the parties have been considered and they are adopted to the extent heretofore indicated. Otherwise, such proposed findings of fact and conclusions of law are rejected because they are contrary to or unsupported by the evidence or because of their immateriality.
From the evidence in this record, it has been established 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 Section 3005 of Title 39, U.S. Code.
It follows that an order of the type provided by that provision of law should be issued against this Respondent.
___________________