In the Matter of the Complaint Against: KELP DIET, 2001 N.W. 7th St. at Miami, FL 33125 P.S. Docket No. 5/12 10/27/76 Sobernheim, Rudolf; Administrative Law Judge APPEARANCES: Daniel S. Greenberg, Esq. Consumer Protection Office; Law Department; U. S. Postal Service; Washington, D. C. 20260 for Complainant Sharon Fernandez; Kelp Diet; 2001 N.W. 7th Street; Miami, Florida 33125 for Respondent
This is a proceeding by complainant against respondent under 39 U.S. Code 3005 which authorizes action against respondent on evidence satisfactory to the Postal Service that respondent is "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations."
Complainant alleges that respondent is engaged in such a scheme in the sale of "Kelp Diet Tablets and Diet Plans."
Specifically, complainant alleges that by the use of an advertisement, a copy of which is annexed to the complaint and another copy of which has been made part of the record as complainant's exhibit 1, respondent represents in substance and effect
"(a) that Respondent's 'Kelp' tablets
(i) contain ingredients which dissolve the body's fat;
(ii) cause dissolution of body fat over and above that caused by normal body metabolism;
(iii) cause most users to lose one pound of fat per day;
(iv) cause a shifting of weight from one area of the body to another;
(v) cause a 30% decrease in most users' cholesterol level;
(vi) will improve most users' general health;
(vii) will correct metabolism problems;
(viii) will cause the aforementioned effects without a change in the users' eating habits;
(b) That, alternatively, Respondent's tablets play a significant part in achieving the aforementioned results when used in conjunction with the diet sent with said tablets;" and that such representations are materially false.
Respondent in its answer admitted the use of the advertisement referred to and the receipt of money from customers through the mails for its product. It denied making representations beyond what may be reasonably inferred from its advertisements and further denied the falsity of the representations thus made.
A hearing on the complaint was originally set for 2 July 1976 but was continued at respondent's request. The hearing was set for 10 September 1976 but respondent did not appear thereat. In accordance with the applicable rules (39 CFR 952.11) complainant proceeded at the hearing to present its case, including proof of a test purchase through the mails of respondent's product, made by a Postal Inspector.
1. Sharon Fernandez is engaged in the business of selling Kelp diet tablets and diet plan and of obtaining money through the mails under the name of "Kelp Diet" of Miami, Florida.
2. Purchasers responding to the Kelp Diet advertisement receive a bottle of pills, labelled "Kelp Diet. Contains Kelp, Cider Vinegar, Lecithin, Vitamin B-6. 10 Day Supply. 60 Count. $7.95" (T 1-6). The label further prescribes a dosage of two tablets three times daily after meals, containing 50 milligrams of vitamin B-6, and stated that six tablets contain 150 mg. kelp, 600 mg. lecithin, 240 mg. cider vinegar, and 50 mg. vitamin B-6 (ibid.).
3. In addition purchasers receive a folded sheet, labelled "4-In-1 Kelp Tablet ... recommended Low Calorie Diet Plan Supplement" (Compl. Ex. 6) which explains the alleged working of the tablets and provides weight and calorie intake charts for men and women, standard meal plans, calorie charts for numerous foods and a warning against eating "breads, sweet desserts, pastries, candy or 'white root' vegetables such as potatoes, turnips, etc."
4. An inspection of the advertisement, admittedly used by respondent in its business, contains verbatim the representations alleged in paragraph 2(a) of the complaint and by offering the Kelp diet tablets and plans together represents their combined usefulness, as alleged in paragraph 2(b) of the complaint.
5. Accordingly the only remaining question is whether the representations made by respondent are materially false.
6. On this point complainant introduced the testimony of two qualified nutritionists, employed at the Agricultural Laboratory in Beltsville, and the testimony of an experienced physician, working for the Food and Drug Administration of the United States and whose special function it is to advise the Postal Service about claims made in respect of medical products which are the subject of false representation proceedings.
7. The testimony of the nutritionists is unanimous that the components of the tablets have no basic effect on the health of the user. Most of the components are found in a normal diet and additional quantities thereof which the tablets contain have no further beneficial effect on nutrition. In fact, if too much iodine (kelp) is taken the effect on the user may be deleterious. Conceivably, the kelp portion of the tablet could furnish an excessive amount of iodine beyond what is normally needed or permissible (see Compl. Ex. 7).
8. The medical testimony, moreover, shows clearly that the ingredients of the tablets have no effect in treating obesity which is caused mainly by an excessive intake of food without corresponding consumption by way of heat or energy. Diet tablets, such as those proffered here, have no effect whatever on the cure of obesity in any person whether it is due to overeating or to other medical phenomena.
9. It follows from these findings that all of respondent's representations, as set forth in paragraph 2(a) and (b) of the complaint, are false and are materially false since the promise of the represented easy and beneficent results is the inducement to the potential purchasers of respondent's product to buy the same.
1. Respondent is engaged in a scheme or device for obtaining money or property through the mails by means of false representations.
2. Accordingly, an order in the form attached, as provided under 39 U.S. Code 3005, should be issued.
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