In the Matter of the Complaint Against: GRAPEFRUIT GROWERS, SUNNY HILLS DIET, and MAIL ORDER SERVICES, 1818 West Chapman Avenue, and Post Office Box 5900 at Orange, California 92668 and 107 Water Street at Henderson, Nevada 89015 P.S. Docket No. 4/200 07/15/76 Duvall, William A., Chief Administrative Law Judge Thomas A. Ziebarth, Esq. Law Department United States Postal Service, Washington, D.C., for Complainant No appearance on behalf of Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated on May 7, 1976, when the General Counsel for the United States Postal Service, the Complainant, filed a Complaint in which it was alleged that Grapefruit Growers, Sunny Hills Diet and Mail Order Services at Orange, California, and Henderson, Nevada, 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 of the United States Code. This Complaint was served upon the Respondent on May 14, 1976. An answer dated May 25, 1976, was filed and docketed on June 1, 1976.
At the time the Complaint was served upon the Respondent, there was also served a copy of the Rules of Practice and a notice of hearing. There have been two continuances of this hearing to this date, both of which continuance notices were sent to the Respondent. Although the Respondent states in the answer that he will appear at any hearing that is to be held, he requested that the hearing be continued to a later date, either in the month of July or in the month of August.
The request for continuance or continuances was a simple statement that because of "hardship and prior commitments", the requests for the continuances were made. There was no documentation or other support of these requests, and they were denied for lack of support. No further requests or any other communications have been received from the Respondent.
Accordingly, since the Respondent did file answer, but failed to appear in person or by attorney, provisions of § 952.11(b) of the Rules of Practice will be followed, and this provision reads as follows:
"(b) If the respondent files an answer but fails to appear at the hearing, the presiding officer shall receive complainant's evidence and render an initial decision."
In the Complaint it is charged that by certain advertisements and other circular matter attached to the Complaint as Exhibits 1, 2, and 3, the Respondent is making the following allegedly materially false misrepresentations with respect to the product that it is selling:
"(a) The ingredients contained in the GRAPEFRUIT PILL, individually or in combination, are an integral and essential part of the diet regimen with which they are supplied and make a substantial contribution to a fast weight loss on the part of the user;
"(b) Overweight persons using the GRAPEFRUIT PILL in conjunction with the accompanying diet plan will lose 'up to a pound a day and even more' while continuing to eat all or almost as much as they want;
"(c) The ingredients contained in the GRAPEFRUIT PILL, including Vitamin E, Vitamin C and whole grapefruit extract, will act to help the body release excess fat and body fluids;
"(d) The GRAPEFRUIT PILL regimen may be safely followed by any person; and
"(e) The GRAPEFRUIT PILL Is the nutritional equivalent of whole grapefruit and may be substituted for that food in any dietary regimen."
In the answer the Respondent did admit the use of the advertising material which is attached to the Complaint as Exhibits 1, 2, and 3 thereto and copies of which were received in evidence as Complainant's Exhibits 1, 2, and 3. However, the Respondent denied the existence of a scheme and denied, also, the allegations of falsity with respect to the representations and, in effect, denied that the representations were made. Respondent admitted that the advertisements state what they state, but it is not admitted that those statements are false.
A cursory comparison of the charges of the Complaint with the statements in Respondent's advertising material is all that is necessary to establish that the Respondent does make the representations which are set forth in the Complaint. Also, the use of the mails by this Respondent is established by the examination of the exhibits received in evidence as 4a and 5a, which are envelopes received by the inspector who investigated this matter. They bear the return address of the Respondent which, in one instance, is shown as Grapefruit Growers at Henderson, Nevada, and in the other instance, is shown as Sunny Hills Diet, Orange, California.
With respect to whether the representations found to have been made by this Respondent are true or false, the Complainant presented as an expert witness in this matter, Dr. Vincent F. Cordaro, who by virtue of his education, training and experience and present occupation is amply qualified to testify with respect to the area of medicine involved in this case.
Dr. Cordaro first referred to the pamphlet which accompanied the product sent to the test names used by the investigating inspector, and he stated that the diets that are outlined in this pamphlet are diets which provide from 1200 to 1400 calories per day. The average person will lose weight on this diet for the reason that the diet of the average person consists of a greater number of calories than is provided by the diet.
The average weight loss for the average person would amount to about a third of a pound per day.
With respect to the pill which is represented by the Respondent as being so efficacious, Dr. Cordaro considered the contents as revealed by the label and he stated that for the average person neither Vitamin E or Vitamin C has any effect on metabolism. Vitamin E would have such an effect only in the case of a person who has a deficiency in Vitamin E. It is the statement of the medical expert that in the entire history of nutrition no person has been discovered who has such a deficiency.
With respect to Vitamin C, a deficiency could cause or would cause scurvy in the individual, but, again, unless a person is actually in the throes of starvation, he will not suffer this disease because he would have not a deficiency of Vitamin C, which is obtainable from many sources.
Sodium carboxymethylcellulose, according to the medical expert is a hydrophilic substance which expands in the stomach due to its absorption of water. As presented in this product, however, there are two distinct drawbacks, the first of which is the infinitesimal amount which is contained in this product. It is so small an amount that it will have no effect on the hunger of the individual, which is to say that it will not in any degree alleviate hunger. Secondly, the water that is absorbed by sodium carboxymethylcellulose is squeezed out of that substance, according to the doctor, by the action of the stomach.
Concerning the grapefruit powder, and whole and dried grapefruit powder, Dr. Cordaro said that each pill contains approximately 1/60 of an ounce of material, and at this weight, it would require several hundred of these pills in order to be the equivalent of a half a grapefruit. Since each container has in it only 60 tablets, it would take a number of purchases in order to have the equivalent of half a grapefruit.
In summing up, it was stated that there is nothing in these pills which speeds up the metabolism of the individual; there is nothing in these pills which acts as a deterrent to hunger or as a relief of hunger; and there is nothing in these pills which makes a positive contribution of anything in excess of the value of the diet, itself, to a person who wishes to lose weight. In short, this pill is substantially worthless for the purpose for which it is being sold. No ingredient in the product will help the body to release excess fat and body fluids. There is no indication whatsoever of the presence of a diuretic in these pills. In addition to these negative characteristics of the pill, there is a further reason why these pills are not accurately represented. This reason is that in the case of individuals who have diabetes, heart or kidney disease, the following of this regimen could be very detrimental to their health.
Based on the entire record in this proceeding, it is found that the Respondent does advertise this product in various publications. The Respondent does use the mails in the sale of the product and in the conduct of its business, and the Respondent or Respondents do make the representations which are set forth in the Complaint. Those representations have been shown by competent, credible, expert medical testimony to be materially false as to matters of fact.
It follows as a matter of law that the Respondent is engaged, as charged, 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 that section of the Code should be issued against this Respondent.
_________________