In the Matter of the Complaint Against: "GLAMOURLIFT", INC., Post Office Box 7945 at Louisville, KY 40207 P.S. Docket No. 5/22 08/11/76 Grant, Quentin E.; Administrative Law Judge Thomas A. Ziebarth, Esq. 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 June 16, 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 representation in violation of 39 U.S.C. 3005.
The product involved is an "Electro Bust Development Beauty Plan" which includes "Glamourlift" Electron Creme and two devices called "Glamourlift" Posture Support and the Glamourlift Developer. Apparently, respondent no longer includes the posture support as part of the plan but suggests, instead, use of a "good bra" (Ex. CX-2d).
The complaint contains the following specific allegations:
"(1) Attention is attracted to said scheme by means of advertisements appearing in publications of general circulation which are calculated to induce the readers thereof to remit money or property through the mails;
"(2) Attached hereto as Exhibit '1' is a copy of a recent advertisement used by Respondent which is typical of those referred to in Paragraph (1);
"(3) By means of such materials, and others similar thereto, Respondent represents, directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implication that:
(a) The GLAMOURLIFT breast plan will increase the size of the female user's breasts and add inches to her bustline in just 14 days;
(b) GLAMOURLIFT ELECTRON CREME, used in conjunction with massage, will help the female user develop a larger, firmer, more beautiful bust by restoring a balance of natural electricity;
(c) The use of the GLAMOURLIFT DEVELOPER will result in a fuller, shapelier and firmer bustline; and
(d) The GLAMOURLIFT breast plan 'tones' the breasts of the female user."
Finally, the complaint alleges that the representations alleged are materially false as a matter of fact.
Respondent filed an answer in which it admitted the publication of the advertisement attached to the complaint (Exhibit A attached hereto) but otherwise denied the allegations of the complaint numbered (1), (2), and (3). The answer also, in substance, denied the remaining allegations of the complaint except that it admitted that it represents that the use of the Glamourlift Developer could result in a fuller, shapelier and firmer bustline and that the Glamourlift plan "tones" the breasts of the female user.
Respondent denies that the representations made in its advertisement are materially false as a matter of fact. Respondent says that it takes care to alert readers to the fact that no specific claims are being made for the product by means of the disclaimer stating that "clinical data and human biological response to the balanced application of free electrons is insufficient to justify biological, therapeutic or health maintenance claims." It also calls attention to the money back guarantee contained in the advertisement.
A hearing was held in Washington, D. C. on July 14, 1976. Respondent did not appear at the hearing. Complainant's evidence was thereupon received pursuant to Section 952.11 of the Rules of Practice.
1. Respondent seeks the remittance of money, in the amount of $13.95, through the mail for its Glamourlift plan including its component devices. (Ex. CX-1; Tr. 4-8).
2. Respondent makes the representations alleged in paragraph (3)(a) of the complaint in the profile views of the female form superimposed on the calendar showing the breasts increasing substantially in size and in the wording appearing immediately under the calendar (Ex. CX-1).
3. Respondent makes the representations alleged in paragraph (3)(b) of the complaint in the first paragraph of the text opposite the illustration of the Glamourlift Electron Creme jar and in the first paragraph of the text under the caption, "HOW DOES 'GLAMOURLIFT' WORK?" (Ex. CX-1).
4. Respondent makes the representation alleged in paragraph (3)(c) of the complaint in the text above the calendar and in the second paragraph of the text under the caption, "HOW DOES 'GLAMOURLIFT' WORK?" (Ex. CX-1).
5. Respondent makes the representation alleged in paragraph (3)(d) of the complaint in the third paragraph of the text under the caption, "HOW DOES 'GLAMOURLIFT' WORK?" (Ex. CX-1).
6. Dr. Vincent F. Cordaro, a qualified medical doctor (Tr. 9), testified for complainant. According to Dr. Cordaro, respondent's Glamourlift Electron Creme (Ex. CX-2a), which according to its label is composed of peanut oil and fuller's earth, will not help the female user develop a larger, firmer, or more beautiful bust or breast, by restoring a balance of natural electricity. Dr. Cordaro's research had failed to reveal any medical, scientific, or physiological concept of restoring the balance of natural electricity. He did not know of any such concept (Tr. 10, 11).
7. Dr. Cordaro testified that the Glamourlift Developer (Ex. CX-2c), described by him as a black, rubber belt, used according to the procedures described on its container, would have no efficacy in the enlargement or beautification of the female breast, itself, as distinct from the total bustline, or chest girth, because the breast has no muscles which can be affected by exercise. Dr. Cordaro testified that the exercises prescribed on the container, performed for 14 days, could product "very, very minimal" development of the muscular tissue in the chest and consequent increase in girth of the chest or bustline (Tr. 12, 13).
8. Dr. Cordaro testified that enlargement of the female breast as pictured in the profile views superimposed on the calendar could not result from use of the Glamourlift plan no matter how long it is followed. He also stated that use of the exercise program or the cream or both will not result in firmer breasts or toning of the breasts because the degree of firmness of breasts is genetically influenced and they contain no musculature through which increased firmness or toning can be achieved (Tr. 14, 15).
9. According to Dr. Cordaro, the use of a brassiere, as recommended by respondent (Ex. CX-2d), will not change the size or configuration of the breast other than when it is being worn. It has no effect on the amount or unsupported configuration of the breast tissue (Tr. 15, 16).
10. Based on the testimony of Dr. Cordaro, I find that the representations made by respondent, as alleged in the complaint and as found above, 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 advertisement makes the materially false representations alleged in the complaint and will be so understood by the ordinary reader. The meaning of advertising representations is to be judged from a consideration of the advertisement in its totality and the impression it would most probably create in ordinary minds. See Donaldson v. Read Magazine, 333 U.S. 178 (1948).
3. The disclaimer relied on by respondent is so obscured by its sophisticated vocabulary and artful design that it does not serve to alert the ordinary reader to its essential meaning, i.e. that the plan may not work as represented. As the Court said in G. J. Howard Co. v. Cassidy, 162 F. Supp. 568 (USDC ED NY 1958):
"It is the net impression which the advertisement is likely to make upon purchasers to whom it is directed which is important, and even if an advertisement is so worded as not to make an express misrepresentation, if it is artfully designed to mislead those responding to it the mail fraud statutes are applicable."
4. The illegal taint of respondent's representations is not erased by the inclusion of a money back guarantee. See Howard v. Cassidy, supra.
5. An order pursuant to 39 U.S.C. 3005 in the form attached should be issued against respondent.