In the Matter of the Complaint Against: SUCCESSFUL LIVING, and SUCCESSFUL LIVING CENTER, 1235 Cowles St. at Long Beach, California 90813 P.S. Docket No. 4/168 07/22/76 Duvall, William A., Chief Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Franklin G. Rohloff 1235 Cowles Street, Long Beach, California, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated when the Consumer Protection Office of the Law Department of the United States Postal Service, the Complainant, filed a Complaint in which it is alleged that Successful Living and Successful Living Center at Long Beach, California, and Successful Living at Garden Grove, California, 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.
Another Respondent named in the Complaint, Successful Living at Garden Grove, California, has been adjudged in default and is no longer in this proceeding and will no longer be mentioned. Hereafter, the Respondent will be referred to collectively by simply the word "Respondent" to indicate both Successful Living and Successful Living Center.
The Respondent is engaged in the sale through the mails of a recording, either on a record or on a tape. of language which is designed and intended to produce a weight loss in the person who buys and uses this recording as directed.
The charges which are in the Complaint read as follows:
"By means of (certain advertisements which have now been limited to Complainant's Exhibits 3 and 4 which were received in evidence in this proceeding) Respondent represents:
"(i) That Respondent's self-hypnosis recording 'commands your body to burn up excess fat', i.e., that listening to the recording will, by the use of self-hypnosis, enable the purchaser to burn up excess fat at a significantly greater rate than that accomplished by normal body metabolism;
"(ii) That listening to the recording will enable the purchaser to effect weight loss without having to employ will power or diet;
"(iii) That listening to the recording will change the purchaser's eating habits by changing his appetite desires;
"By means of (the exhibit introduced by Complainant as its Exhibit 4) Respondent represents:
"(i) That listening to the recording will enable the purchaser to effect a substantial and permanent weight loss;
"(ii) That said weight loss will be accomplished without diet or exercise;
* * * * *
"(vii) That the recording, by reinforcing the listener's desire to be thin will enable him, by use of the subconscious mind to burn up excess fat at a significantly greater rate than that accomplished by normal body metabolism." 2/
At the outset of the proceeding, certain exhibits were stipulated into evidence, among which were the exhibits which have been previously referred to, namely Complainant's Exhibits 3 and 4, which will be attached to this decision as Appendices A and B, respectively, and certain test correspondence engaged in by the inspector by whom this case was investigated, by means of which the product was ordered; remittance was made through the mails; and the product was received from the Respondent.
In these proceedings, there are certain issues which are presented and it is the Complainant in this proceeding who has the burden of proof. In order to prevail, the Complainant must establish (1) that the Respondent is engaged in business, (2) that the Respondent does advertise its product, (3) that the Respondent does obtain and attempt to obtain remittances of money through the mails by means of certain representations, and (4) that the advertising representations are false.
The first three of the aforementioned issues have been established by the stipulation, namely the fact that the Respondent is in business, that Respondent advertises its products, and that the Respondent, in the conduct of its business, does use the mails.
There must be next established whether the Respondent makes or does not make the representations which are set forth in the Complaint.
The first representation that is charged really is found in the Complaint as subparagraphs 2(a)(i) and 2(b)(vii). That representation is that the Respondent represents that its self-hypnotic recording, "commands your body to burn up excess fat, i.e., that listening to the recording will, by the use of self-hypnosis, enable the purchaser to burn up excess fat at a significantly greater rate than that accomplished by normal body metabolism."
A portion of this representation is lifted verbatim from Appendix B, that portion being the language, "commands your body to burn up excess fat." Also coupled with that language is the additional language in both Appendices which represents that the self-hypnosis cassette tape makes "Pounds just melt away * * *." These representations indicate there is something particularly efficacious about this self-hypnosis cassette tape which will produce this extraordinary loss of weight, and rate of loss of weight.
The next representation, set forth in the Complaint as subparagraphs 2(a)(ii) and 2(b)(iii), is that listening to this recording will enable the purchaser to effect weight loss without having to employ willpower or diet. Again, the language "No will power", is taken verbatim from the advertisement, and, as a matter of fact, it appears in both advertisements, Appendices A and B.
The actual language which relates to diet appearing in these advertisements reads "No Fad Diets". It is the position of the Respondent that this language means that there would be no "magic" pills that will be taken to help one lose weight at a rapid rate, or no grapefruit diet or no watermelon diet or none of the diets that are promoted from time to time which are advertised on the basis that they have some special quality or characteristic which will enable the user to take off large amounts of weight in a short time. The language is capable of such an interpretation as Respondent suggests.
On the other hand, not everybody who reads these advertisements is going to be a highly educated, sophisticated individual. When such an unsophisticated person reads this language, it is entirely possible that he may read these advertisements to mean that, at last, here is a method by which ie will be enabled to lose weight, in which he will not have to exercise willpower, and which will not require him to diet. There is credible testimony in the record that there are people who are looking for just that sort of a method of losing weight. They have gone from pillar to post and tried this and that, and, yet, they still hope to find that longed-for remedy which will be a painless method of losing weight. This language is susceptible to that sort of interpretation, particularly for one who is motivated to look for that sort of relief.
The next charge, subparagraph 2(a)(iii) in the Complaint, is that the Respondent represents that listening to a recording will change the purchaser's eating habits by changing his "appetite desires." Again, this language appears in both of the advertisements used by the Respondent, Appendices A and B.
The next charge is that the Respondent represents that listening to the recording will enable the purchaser to effect a substantial and permanent weight loss. In Appendix A, the language at the top of the advertisement is as follows: "LOSE WEIGHT] AND KEEP IT OFF]" So, clearly, if one loses weight and keeps it off, that is a permanent loss of weight. With respect to the question of "substantial" weight loss, the advertisement is not addressed to people who are only slightly overweight, or people who are greatly overweight. It is addressed to all people who are overweight, regardless of the degree of their obesity. It is entirely possible that one who is seriously overweight will be persuaded to believe that here is a method which he may use to reduce his excess overweight.
Concerning the charge in subparagraph 2(b)(ii) that the Respondent represents that the loss of weight will occur without exercise, it is stated in both Appendices that "Pounds just melt away * * *" and that you "JUST LISTEN AND LOSE" to the accompaniment of the recording while this phenomenon occurs, with "No sweat] No strain] * * *." The clear import of this language is that weight will be lost without exertion or exercise.
Based on the foregoing considerations which are, in turn, based upon the rule concerning the interpretation of advertising claims enunciated by the Supreme Court in Donaldson v. Read Magazine, 333 U.S. 178 at pages 188 and 189, I find that the Respondent does make the representations which are set forth in the Complaint. I do so because the representations as they appear in the Complaint express the impressions that would be generated in the mind of the average person who reads the Respondent's advertising material.
It has been pointed out many times that the postal misrepresentation statute and its predecessor, which was called the postal fraud statute, were enacted not to punish persons who engage in business in a manner proscribed by those statutes, but to protect the buying public, and the buying public is comprised of persons of many shades and degrees of learning. There are very sophisticated persons and there are very wary persons who look carefully at each ad, and they dissect and digest the language to try to determine precisely what it is that is being sold. There are others who, for one reason or another, sometimes it is lack of ability, cannot carefully weigh the words. Such persons are referred to as the unsophisticated or the unwary, the trusting, the gullible. They do not weigh each word carefully to measure precisely what it is that is being sold. Nevertheless, the courts have held that the latter group is also entitled to the protection afforded by the postal statutes.
For these reasons, it is reasonable to believe, and I so find as a matter of fact, that the Respondent does make the representations which are set forth in the Complaint, as above stated.
The last question that is involved is whether these representations that have been found to be made by the Respondent are true or false as to material matters of fact.
Testifying with respect to this issue was Dr. Ernst J. Drenick, a medical doctor who, by virtue of his education, training, experience, present occupation and medical practice, is eminently qualified to testify concerning the matter of obesity, its cause and cure or alleviation.
Dr. Drenick testified that obesity is an excess of body weight caused by the intake of calories in an amount which exceeds the expenditure of calories. Overweight, in most instances, is caused by psychological factors and, in a few cases, a small percentage, by organic conditions.
The treatment of obesity that is recognized by the medical profession involves the taking of the history of the individual, examining the patient to prescribe a dietary regimen and an exercise program appropriately tailored to meet the needs and the capabilities of the individual patient. This program may, in appropriate instances, be combined with medication whenever necessary or desirable. In addition, a maintenance program is prescribed for the patient, and provision is made for the monitoring of this program. It is also desirable to keep the patient under continued supervision because of the difficulty of staying on a weight control program. A good doctor-patient relationship is desirable, if not necessary, in order to permit the patient to stay on the diet.
The thrust of the expert medical testimony with respect to the treatment of patients for obesity is that it is important to assure the individualization of the treatment to fit the needs of the patient. There is no one treatment which may be universally applied to the population in general with any expectation of universal success. It has not happened; it does not happen now; and it appears to be unlikely that it ever will occur because of the differences in individuals.
During the course of the hearing, the tape sold by the Respondent was played, although it was played off the record, but a transcript of what was said on the tape was received in evidence as an exhibit.
It was the testimony of the medical expert, who previously had listened to the tape, that if there is a person who is susceptible to the particular suggestion which is set forth in the recording, then such a person could be expected to receive benefits from the playing of the tape as directed in terms of loss of weight. On the other hand, persons who are compulsive eaters and who are obese because of this eating habit are persons who are the least susceptible to the type of suggestion that is contained on this recording. The patients encountered by Dr. Drenick over the years have included scores of patients who have been treated for obesity by means of psychoanalysis, group therapy, hypnosis, and other means, but those methods of treatment have not produced the desired results.
The best hope for success lies in the following of that rather arduous methodology, outlined earlier by the doctor in his testimony, which is time consuming and calls for the exercise of the highest order of willpower, engaging in appropriate exercise, and the reduction of caloric intake, all of which must be reinforced by supervision of some sort, whether from the physician by whom the original examination was made or whether by other supportive instrumentalities, such as Weight Watchers, for example.
Among all of the population, it has been estimated that approximately 40 percent are susceptible to hypnotic suggestion. That does not mean that this 40 percent is susceptible to hypnotic suggestion related to diet. There are in the population many people who are not susceptible to hypnotic suggestion of any type, and, of that 60 percent who are not susceptible to hypnotic suggestion, it is reasonable to assume that there are some who are considerably overweight. Certainly, that group would not be benefited by the use of Respondent's product.
On the tape, there is the suggestion that the listener cut down severely on certain foods, such as potatoes, cakes and breads. It is the testimony of the medical expert that this kind of suggestion, if followed, serves to eliminate to a large degree the intake of carbohydrates, and that to do so could produce a number of untoward results in certain segments of the population, particularly people with diabetes and heart conditions. It could also produce ketosis in some individuals. In other words, there is a certain segment of the population for whom the following of the instructions set forth on the tape, if they were able to do so, would produce seriously adverse effects.
Again, for those persons who are compulsive overeaters, which condition was described by the medical expert as a deeply ingrained addiction, there is almost no hope that the following of the instructions set forth on this tape will produce a satisfactory result in terms of weight loss for such individuals.
In summing up the medical testimony, there is nothing with regard to the tape and following the instructions set forth in the tape which will enable a purchaser to burn up excess fat at any greater rate than that accomplished by normal body metabolism.
If one is able to lose weight by following the instructions on the tape, it will certainly require the exercise of willpower; it will require that the individual reduce his caloric intake which is normally thought of by the lay person when the word "diet" is mentioned; and it will require an increase in physical activity.
It is highly unlikely that the purchaser's eating habits will be changed by causing an alteration in his "appetite desires", and, since these things are so, the claims that listening to the recording will enable the purchaser to effect a substantial and permanent weight loss are simply not true.
In consideration of all the foregoing matters, it is found that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of Section 3005 of Title 39, United States Code.
An order of the type provided for in 39 U.S. Code 3005 should be issued against this Respondent.
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