In the Matter of the Complaint Against:

 SURVIVAL PRODUCTS, INC.,
 5636 S.W. 25th St. at
 Hollywood, FL 33023

 P.S. Docket No. 5/14
 
 08/25/76
 
 Grant, Quentin E.; Administrative Law Judge

 Daniel S. Greenberg, Esq.
 
 Law Department
 United States Postal Service
 Washington, D. C., for Complainant 

 No appearance for Respondent 

 Before: Quentin E. Grant, Administrative Law Judge

Complainant initiated this proceeding on May 27, 1976 by filing a complaint alleging that respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S.C. 3005.

The product involved is called "BODI-ROL." The complaint alleges that respondent attracts attention to the scheme or device by means of advertising in which respondent represents, directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect:

"(a) That Respondent's 'BODI-ROL' helps remove cellulite ('beauty-robbing gel-like lumps of hideous fat that stick to the underside of the skin at the waist, thighs, arms and buttocks') and fatty tissue;

"(b) That cellulite is materially different from ordinary fat, and cannot be removed by diet, exercise, or surgery;

"(c) That the 'BODI-ROL' helps remove cellulite by:

(i) breaking it down;

(ii) ' stimulating skin surface circulation to remove this waste material through normal body circulatory functions.'"

The complaint further alleges that these representations are materially false as a matter of fact and that by means of requests contained in or accompanying its advertisements, respondent seeks to induce readers thereof to remit money or property through the mails for the product involved.

Respondent did not appear at the hearing held on July 13, 1976 but did file an answer which, in substance, denied the allegations of the complaint and purported to explain how the product accomplishes the results represented in respondent's advertisements.

Upon failure of respondent to appear at the hearing, complainant's evidence was received pursuant to Section 952.11 of the Rules of Practice. At the conclusion of the hearing, counsel for complainant offered oral proposed findings of fact and conclusions of law. Respondent has filed written proposed findings and conclusions.

1. Respondent's advertisements together with complainant's evidence concerning a test purchase made by Postal Inspectors J. W. Currie and A. R. Dockus (CX-1-12; Tr. 4-9) support a finding that respondent is engaged in a scheme or device for obtaining money or property through the mail. A copy of one of respondent's advertisements is attached hereto as Exhibit A.

2. Attention is attracted to the alleged scheme by means of advertisements appearing in publications of general circulation, such advertisements being calculated to induce readers thereof to remit money or property through the mails (CX-1).

3. By remitting through the mails $5.95, plus $1.00 for shipping and handling, a purchaser receives a device called the "BODI-ROL."

4. The "BODI-ROL" is a plastic device consisting of a handle from which two legs extend, and two sets of wheels connected by metal pins, or axles, through the base of the legs. Each wheel has what might be described as a tread consisting of 18 projections, 9 pointed and 9 blunt. The instructions for use of the "BODI-ROL" tell purchasers to roll it over the cellulite areas in smooth back and forth strokes, repeating this process for approximately ten minutes daily until bumps and bulges disappear, then continuing this treatment for two to three days per week to help keep new cellulite from forming.

5. In its answer to the complaint, respondent explains the process by which the "BODI-ROL" breaks down and removes the cellulite as follows:

"Application of the BODI-ROL to the cellulite afflicted region as described in the Advertisement can help to remove the cellulite by activating the fat cells (commercially referred to in the Advertisement as breaking down) with friction caused by the BODI-ROL massaging action and increasing circulation to this region by stimulating the numerous nerves located in the skin which make it sensitive to surface changes. Increased fat cells activity and circulation improve the probability of the fat cells coming into contact with the cellular fluids, thus allowing a material exchange between them. The fat is then utilized in the body's system and consequently dissipated. This process of course helps to minimize fat tissue in the skin and therefore the bumpy surface commercially referred to as cellulite."

6. As alleged in the complaint, respondent's advertisements in the bold, white type at the top thereof, represent that the BODI-ROL helps the user remove cellulite and fatty tissue. In the second paragraph of the text of the advertisement under the heading "What is cellulite?", respondent makes the representation that cellulite is different from ordinary fat and cannot be removed by diet, exercise or surgery. In the third paragraph of the text of the advertisement, under the heading "What can you do about cellulite?", respondent makes the representations that the BODI-ROL treatment removes cellulite by breaking it down and stimulates skin surface circulation to remove the cellulite through normal body circulatory functions.

7. Dr. Vincent F. Cordaro, a qualified medical doctor, testified for complainant. According to Dr. Cordaro, cellulite is a term used to designate certain accumulations of fat, primarily in women, along the hips, thighs, parts of the abdomen and waist, and in the shoulder girdle. Dr. Cordaro testified that cellulite does not differ from fatty tissue elsewhere in the body. He further stated that in normal people, without disease, fat is accumulated primarily through overeating, the excess of the calories consumed over those expended being deposited in fat storage depots. The medical treatment for overweight is usually dieting accompanied by moderate exercise.

8. Dr. Cordaro testified that use of the BODI-ROL, according to respondent's directions, could not possibly remove cellulite. It cannot break down fat. It cannot cause removal of cellulite through improved circulation. Dr. Cordaro stated that fat can be removed by diet, exercise, and surgery. He stated that respondent's explanation of the cellulite removal process, contained in its answer to the complaint, is specious and lacking in any scientific basis. (Tr. 12-14)

Dr. Cordaro testified that the answers given by him in this proceeding are in conformance with the consensus of scientific opinion (Tr. 14).

9. Based on the testimony of Dr. Cordaro, I find that the representations made by respondent, as alleged in the complaint, are materially false in fact.

1. 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 39 U.S.C. 3005.

2. Respondent's advertisements make the materially false representations alleged in the complaint and will be so understood by the average reader. See Donaldson v. Read Magazine, 333 U.S. 178 (1948).

3. Respondent's false representations are not erased by the inclusion of a money back guarantee in its advertisements. See G. J. Howard Co. v. Cassidy, 162 F. Supp. 568 (USDC ED NY 1958).

4. An order pursuant to 39 U.S.C. 3005 in the form attached should be issued against respondent.