In the Matter of the Complaint Against: FRAN-MAR DIET, and FRAN-MAR ENTERPRISES, P.O. Box 130 at Rockvale, Colorado 81244 P.S. Docket No. 5/35 12/07/76 Grant, Quentin E.; Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C., for Complainant Richard W. Knudsen, Esq. Pueblo, Colorado, for Respondent Before: Quentin E. Grant, Administrative Law Judge
Complainant initiated this proceeding on July 14, 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 complaint alleges that by means of certain advertising matter seeking to induce readers thereof to remit money or property through the mails for its product respondent represents that such product, "Fran-Mar Diet" (hereinafter referred to as the "diet"), will cause loss of weight based, in large part, upon the honey-vinegar preparation described in the diet; that most users of the diet can expect a loss of 20 pounds in two weeks; that said representations are materially false in fact.
Respondent denies the allegations of the complaint except that it admits advertising the diet in the manner alleged in the complaint and that through such advertising it seems to induce readers thereof to remit money through the mail for the diet.
A hearing in the matter was held in Denver, Colorado on October 15, 1976. Both parties appeared thereat and presented evidence. Thereafter each party filed proposed findings of fact and conclusions of law.
Complainant, on November 11, 1976, filed a motion to correct the transcript with respect to certain testimony given by its medical expert. The motion was not opposed by respondent. The motion is therefore granted.
1. Respondent is a partnership doing business under the name Fran-Mar Enterprises.
2. Based on stipulation, admission and evidence introduced by complainant, I find that respondent, employing advertising, a typical copy of which is annexed hereto as Exhibit A, is engaged in a scheme or device for obtaining money through the mails (CX-1 through 7; Tr. 3-5; Resp. proposed finding of fact no. 2).
3. Although according to the testimony of the partners it was not their intention to do so (Tr. 30), nevertheless the effect of their advertising is a representation that the "Honey-Vinegar" diet will cause loss of weight based in large part on the honey-vinegar preparation described in the diet. Further, the diet itself states that the "key" to the diet is the drinking of water to which honey and vinegar have been added (CX-7).
4. Respondent's advertising represents in effect, although it does not explicitly so promise, that most users of the diet can expect a loss of 20 pounds in two weeks.
5. In testimony and by stipulation respondent acknowledged that ingestion of honey and water will not cause weight loss (Tr. 5, 6, 39, 40).
6. Respondent presented evidence of tests of the diet run on three young men. Two of them, Frank John Morelli, III and Mark Alan Ziolkowski, are partners doing business as Fran-Mar Enterprises, the respondent herein. The other is Steven Ray Garcia, a friend of Mr. Morelli.
Mr. Morelli tested the diet on himself three times. The first test occurred in 1972 when Mr. Morelli was preparing for wrestling on his high school team. Preparation for wrestling included a great deal of running, wrestling and "sweats" intended, in part, to bring Mr. Morelli's weight down to that at which he would compete. Mr. Morelli used the diet for two weeks during this period and lost 20 pounds, dropping from 165 pounds to 145 pounds. He again used the diet for two weeks in late July and early August 1975 and lost 19 pounds (180 down to 161 pounds). During this period and for several weeks prior thereto Mr. Morelli was employed in a cement plant where he engaged in manual labor including shoveling, sweeping, and similar activities. Mr. Morelli's third two-week test of the diet occurred in November 1975. This test resulted in a 23 1/2 pound loss (191 down to 167 1/2 pounds). Mr. Morelli was not obese when he engaged in the 1972 and July 1975 tests. He might have been a borderline case of obesity when he started the third test in November 1975 (Tr. 94, 95).
Mr. Ziolkowski engaged in one test of the diet on himself. This was in late July and early August 1975. The result was a loss of 17 1/2 pounds. The evidence did not reveal Mr. Ziolkowski's weight at the time he began the test, but he did not claim to have been obese at that time and was not obese at the time of the hearing (Tr. 93).
The third test participant, Mr. Garcia, lost 18 pounds during a test of the diet in November 1975. He dropped from 215 to 197 pounds. Complainant's medical expert stated that Mr. Garcia appeared to be overweight at the time of the hearing. The evidence did not disclose his weight at that time.
7. Complainant presented as its expert witness Ernst J. Drenick, M.D., a highly qualified specialist in internal medicine who has practiced extensively and done research in the fields of obesity, metabolism, and nutritional problems (Tr. 8; CX-8).
Dr. Drenick, agreeing with respondent that its advertisement would appeal to obese people (Tr. 28), testified that an overweight person has an excess of body fat which is the result of an excess of caloric intake compared with calories expended. These excess calories are stored in the form of fat in various parts of the body. He stated that a person may ingest more calories than the body requires for many reasons. Thus, people eat because of various psychological and sociological factors, including availability of foods which are pleasant to eat, expression of hospitality, etc. He explained that the average obese individual overeats because food gives him some sort of satisfaction, and that such a person will look for any excuse to be able to pay lip service to the instructions of the diet, but still satisfy himself with what is allowed on the diet sheet (Tr. 9-10, 17-18).
Dr. Drenick testified that obesity is treated by reduction of caloric intake and, if possible, an increase in the number of calories expended, so that a negative calorie balance develops (Tr. 10). Success in achieving weight loss is dependent in large part upon a very close doctor-patient relationship lacking which, even if a specific dietary regimen were outlined, the obese individual, who has tried diets on numerous occasions -- and who, as indicated supra, has strong psychological reasons for eating -- will usually follow the diet for a short period and then gradually lapse and regain the lost weight (Tr. 11, 12).
Addressing himself to the Fran-Mar Diet, Dr. Drenick testified that instructions appear to provide for an intake of between 700 and 900 calories per day, assuming that only 4 ounces of meat are consumed with any one of the meals (Tr. 15). However, he pointed out that on three days (Thursday, Saturday, and Sunday) the diet advised ingestion of "plenty of veal steak", without explicit limitation. He stated that a restaurant portion of veal steak might mean anything from 12-18 ounces, which might add another 800-900 calories to the daily intake on those three days (Tr. 15-16). He also pointed out that since the quantities of vegetables offered in the diet are unlimited, including some which are relatively high in calories (carrots and tomatoes), the user may exceed the 700-900 calories by a large margin (Tr. 16).
He testified that the 4-day restriction on the quantity of veal, coupled with the permissive instructions advising the user to eat "plenty" of veal on 3 other days and permitting him to eat vegetables in an unlimited amount, may well result in his overeating inasmuch as the failure to close every loophole gives the obese person an alibi of sorts (Tr. 17-18, 26-27).
Dr. Drenick testified that the daily intake of the average female is approximately 2,000 calories, and that a diet providing 800-900 calories per day would have a deficit of a little more than 1,000 calories per day. Inasmuch as a loss of 1 pound of fat requires a 3,500 calorie deficit, it would take approximately 4 days to lose 1 pound of fat tissue on this diet (Tr. 16).
He stated that a middle-aged female 20-40 pounds overweight would generally lose 8-12 pounds with strict adherence to the diet. Three or four of those pounds would be fat loss, while the remaining 8-9 pounds would be loss of body fluids which would be quickly reaccumulated when she resumed a nutritionally balanced diet (Tr. 16-19). He concluded that it would be "extremely rare for moderately obese individuals to lose 20 pounds in two weeks", and that it would not be likely to occur in more than 10% of the users (Tr. 21-22).
In commenting on the weight losses claimed by respondent in its tests on three people -- the promoters, Messrs Morelli and Ziolkowski, and their friend Steven Garcia -- Dr. Drenick testified that a valid test must include a sizable group, because the results of 2 or 3 individuals cannot be statistically analyzed. Additionally, because of the motivational factors, one cannot use individuals who are motivated by personal gain. This motivational factor would apply even if the person is completely honest in what he has recorded, but the addition of the extraneous factor of gain may have played a part in the stringency with which he followed the diet. Lastly, the tests must be run on both males and females, in different weight categories (Tr. 89-91).
He explained that, of those people classed as obese, those more obese will lose more weight and more fat when placed on a diet of a fixed number of calories. However, a lean person going on such a diet will lose even more weight than an obese person, because he has little fat to lose. The lean person's loss comes primarily from lean tissue, which is mainly water, and which has less fat to supply the calories required by the body. Thus, a thin individual on a 600-calorie diet will lose weight with disproportionate rapidity, and might well lose 15-18 pounds in 2 weeks. However, this weight will be regained quickly when the person resumes a nutritionally balanced diet (Tr. 28, 91, 92).
Dr. Drenick testified that, while one of respondent's test subjects, Mr. Garcia, was evidently overweight and would have lost more fat than lean tissue, the two promoters could not be considered obese. He stated that their observance of a 700-800 calorie diet would cause a rapid loss of weight even without particularly severe physical exercise. He testified that such losses would not be representative of results which could be anticipated by the obese persons to whom respondent's advertising is directed (Tr. 94).
8. Dr. Drenick's opinions are in conformity with the consensus of medical opinion (Tr. 19).
9. Considering all the evidence, I find that ingestion of honey and vinegar will not, per se, cause weight loss.
10. Considering all the evidence, I find that most users of the diet cannot expect a loss of 20 pounds in two weeks.
1. Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails.
2. The meaning of representations contained in advertising is to be judged from a consideration of an advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine, 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 451 (S.D. N.Y. 1957); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D. N.Y. 1959). The cases are clear that such advertisements are to be viewed not with a lawyer's eye to "fine spun distinction" but with an eye to their over-all effect upon the average reader. American Image Corp. v. USPS, 370 F. Supp. 964 (S.D. N.Y. 1974). Every word in the advertisement may be literally true, yet the advertisement on the whole may convey a false impression. Donaldson v. Read, supra. It has been said many times that 39 U.S.C. 3005 and its predecessor (the postal fraud statute) were enacted not to punish persons who engage in business in a manner proscribed by the statute but to protect the buying public, including the unsophisticated, the unwary, the trusting, the gullible. Successful Living, P.S. Docket No. 4/168 (Init. Dec. July 22, 1976).
Applying the foregoing, I conclude that respondent's advertisements make the representations alleged in the complaint even though, accepting respondent's testimony, there may have been no intent to make such broad representations.
3. Based on complainant's expert testimony I conclude that such representations are materially false in fact.
4. An order pursuant to 39 U.S.C. 3005 should issue against respondent.