In the Matter of the Complaint Against:

 CM, INC.,
 285A Saugatuck Avenue
 at
 Westport, Connecticut 06880

 P.S. Docket No. 5/57
 
 10/22/76
 
 Duvall, William A.; Chief Administrative Law Judge

 Thomas A. Ziebarth, Esq.
 Law Department
 United States Postal Service
 Washington, D.C., for Complainant 

 William D. O'Reilly, Esq.
 52 Sharon Road,
 Windham, New Hampshire, for Respondent 

 Jack Paller, Esq.
 400 Colony Square, 1201 Peachtree Street,
 N.E., Atlanta, Georgia, for Respondent 

 Before: William A. Duvall, Chief Administrative Law Judge

This proceeding was initiated on August 13, 1976, when the Consumer Protection Office of the Law Department of the United States Postal Service filed a Complaint in which it is alleged that CM, Incorporated, of Westport, Connecticut, 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 Section 3005 of Title 39, United States Code.

The business in which the Respondent is engaged is the sale of a liquid product, which is sometimes known as "Bathe 'N Shape" or "Young & Firm," and which, at times, will be referred to hereinafter as the product, for the general purpose of enabling the users to reduce some of their body measurements, and, also, to reduce or cause to vanish certain wrinkles, loose flesh, and stretch marks on the skin. A cup of the product is to be added to a tub of water in which the user is to bathe. The specific matters in the advertising material of the Respondent which are alleged to be false representations are set forth in paragraph (3) of the Complaint, a copy of which paragraph is attached to this decision as Appendix A. A copy of the advertising material on which the charges are based is attached to this decision as Appendix B.

A timely answer was filed by the Respondent in which the Respondent denied the existence of a scheme or device within the meaning of 39 U.S. Code 3005. The Respondent admitted the use of the advertising material which is attached hereto as Appendix B, and Respondent admitted making all but one of the representations set forth in Appendix A. The one representation which it denied making was set forth in paragraph three, subparagraph D of the Complaint and reads as follows:

"YOUNG & FIRM will eliminate wrinkles, stretch marks and loose, fatty skin."

therwise, the Respondent denied that the representations set forth in Appendix A are materially false, or false in any degree.

With respect to charge 3D in the Complaint, the language on which this charge appears to be based is on page two of Appendix B in the lower left portion of that page in the following words: "Safely and naturally, wrinkles, stretch marks, loose and fatty skin can actually VANISH off your body]" There is a dispute between the parties as to the meaning of the word "vanish." Complainant takes the position that the word in its overall context as it appears in this advertisement, and elsewhere in the advertising material used by the Respondent, means, or can reasonably be interpreted to mean, "eliminate." Whereas, the Respondent takes the position that the word "vanish" as it is used at this point, and in other places in its advertising material, means simply that these characteristics will become far less apparent. Because of some cases to which reference will be made more specifically later in this decision, it is found that the Respondent does make the representation as it is expressed in 3D of the Complaint.

The Complainant having initiated this proceeding has the burden of proof, and the Complainant's proof was heard in the form of testimony of three witnesses, which testimony is considered together with affidavits submitted earlier by these witnesses.

To begin with, the ingredients of the product being sold by the Respondent have been agreed upon and set forth in a stipulation which is executed on behalf of both parties. These ingredients are aluminum sulfate, magnesium sulfate, glycerin, dispersing agents, sodium bicarbonate, geraniol, isopropanol, myristate, and water.

This substance was tested by Inspector M. L. Beckman, who is a postal inspector employed as a forensic chemist. It was determined that because of the variances between the osmotic pressure of this substance being sold by the Respondent and that of the extracellular fluid in the human body, Young & Firm or Bathe 'N Shape will not act as an omotic pressure gradient when used as directed. The witness translated this language to mean that this body fluid, because of the difference in pressure per kilogram, would not be drawn out of the body and, therefore, the result would be that the girth of the body or a part of it would not be decreased, nor would weight be decreased by the use of this substance.

The principal witness testifying for the complainant was Dr. Sorell L. Schwartz, Ph.D., Professor of Pharmacology at the Georgetown University School of Medicine, Washington, D.C. Dr. Schwartz's impressive curriculum vitae is set forth in Exhibit C-5.

Dr. Schwartz commented on the properties of aluminum sulfate, magnesium sulfate, glycerin, sodium bicarbonate, geraniol, isopropanol, and myristate. It is his testimony as it appears in the affidavit, which was received in evidence as Complainant's Exhibit No. C-4, that these ingredients taken either alone in the quantities at which they are present in this product, or when combined, will not have the effect of bringing about a reduction in the girth of the body that is measurable, and, further, it will not result in a loss of weight. ^*/ The witness testified that this product, if used as directed, would have some slight, very transitory, astringent effect; that this effect would not, and that it could not, last for two weeks or even a week.

*/ There is no charge in the Complaint referring specifically to weight loss.

There was also testimony by Vincent F. Cordaro, a well qualified medical doctor, whose testimony was not at variance with that given by Dr. Schwartz.

The Respondent's case began with the testimony of a registered nurse who conducted a certain test involving six individuals, all of whom were females. Three of these test subjects bathed in a tub of water to which had been added a cup of the product. The other three participants acted as "controls," and they took the bath without the use of the product. Both sets of participants bathed in water that was a hundred and ten degrees fahrenheit, after which they patted themselves dry and then went to bed and were covered either with blankets or with sheets for a period of forty-five minutes.

Prior to their going through this exercise the participants stood against the wall in a manner described in the record with their backs flat against the wall, or as nearly so as possible, and certain measurements were taken of these participants. The measurements were of the neck, chin, breast, thoracic area, waist, hips, buttocks, thighs and calves, and of the distance from the floor to the nipple of the breast. After they had completed the bathing and rest period these measurements were repeated. In taking one of the measurements the participants were measured by the use of a scale one usually finds in a doctor's office, which device also measures the height of the individual as well as the weight. The height measuring bar was placed at the level of the nipple to determine whether there was any difference in the height of the nipple line in the "before" and "after" measurements.

For girth measurements there was used a device which is a cloth tape measure, one end of which is in a metal container. The tape has a spring device attached to it, so that when a measurement is taken the amount of tension can be measured by noting the position of a marker with respect to certain lines that are edged on the face of the container of the head of the tape. In this way an effort was made to take measurements with identical amounts of tension on the tape so as to enhance the accuracy of the measurements taken.

The measurements were taken by Miss Karen Henke, the registered nurse. These measurements were performed on all six participants on August 30, 1976, and the results of these measurements are set forth on documents which were received in evidence as Respondent's Exhibits 1 through 6. The exhibits purport to record the beneficial results of the use of Respondent's product in terms of physical measurements.

Upon consideration of these last-mentioned exhibits it does not really matter a great deal whether the term vanish is interpreted, as it is in the Complaint in paragraph 3D, to mean eliminate, temporarily or completely, or whether that word is interpreted, as the Respondent insists, to mean that such wrinkles and stretch marks as are mentioned in that charge will become less apparent.

One witness who testified as one of those upon whom the product was used was a Ms. Pam Frossard, and the investigator, who was Nurse Henke, observed prior to the use of the product that she had stretch marks on both hips. Her observation of the same person after the use of the product was that the stretch marks were not nearly as apparent. Therefore, in the case of this subject the stretch marks did not disappear. They did not vanish. The investigator said they became less apparent ... "not nearly as apparent."

In the case of subject Wheeler, the investigator said that before the use of the product she had stretch marks on all sides of her hips (front, back and sides). After the use of this product the investigator said with respect to this subject that the stretch marks looked "slightly lighter."

As for the subject named Griffin, the investigator said that prior to the use of the product there were stretch marks on the area of the pelvic bones bi-laterally and around the back. After the use of the product the investigator said in this case the stretch marks were "barely visible."

To "vanish" means to disappear, at least temporarily. Thus, even if one accepts, as I do not, Respondent's definition of the word "vanish," it reasonably could be held that charge 3(d) sets forth a representation which in fact is false.

Also testifying as a witness on behalf of the Respondent was Dr. Andrew Stocklinski who has a Ph.D in analytical medicinal chemistry, and he is a professor in that subject at the University of Georgia. Dr. Stocklinski testified that thee would be an astringent effect upon the skin of the user of the product under investigation in this case. He read the statements in the affidavit of Dr. Schwartz and he read the laboratory examination report of the forensic chemist and he said he did not disagree seriously with either statement. But Dr. Stocklinski was inclined to grant that there could be some diminution in the girth of an individual or of parts of an individual's body, although he would not say how much, nor how it could be measured. When asked specific question, however, Dr. Stocklinski said that on the basis of the information which was at his disposal as a result of the test administered by Nurse Henke he would not recommend the use of this product for the purposes for which it is being sold.

Dr. Schwartz was called to the stand to appear for cross examination and as a rebuttal witness, and the bulk of Dr. Schwartz's oral testimony had to do with the lack of validity of the test procedures employed by the Respondent, or the agents of the Respondent.

Dr. Schwartz set forth the requirements for a test that would produce valid results and among those criteria one is that the double blind method must be followed. That is, the test must be so conducted that the subjects do not know who is being given the product under test, and the investigator conducting the test does not know which of the subjects are receiving the product under examination, or the placebo.

The second criterion is that the test must consist of a sufficiently large group of subjects and these subjects must be randomly selected. Third, the test must take into consideration the variability of patients. One way to achieve that objective is to employ the cross-over design so that at some stage those persons upon whom the product under test is being used will be switched to the placebo and the persons previously given the placebo are given the product under test.

It is also necessary to exercise great care in selecting the people who are conducting the test and those who are tested ... not the individuals who are tested, but certain groups of people, depending upon the item under consideration. Also great care must be exerted in the evaluation of the data.

Dr. Schwartz did not say that these are all of the criteria that must be followed. He said these are the rather basic ones and there may be other criteria, depending upon the results that are obtained in the first test. For example, one test that he mentioned is a test to determine the kind of a test that would be appropriate in the circumstances. It is not necessary to dwell at length on the different variations that could enter into the requirements for an appropriate test. It suffices to say that Dr. Schwartz had no hesitancy in saying that the test upon which Respondent relies in this proceeding is utterly and completely inadequate.

It is true that Dr. Schwartz said that he could not explain some of the results that appear to be based upon this test, but one thing that he could say, and did say, was that, whatever the explanation is, he does not accept the answers. The reason he does not accept the answers is because of the deficiencies in the test method.

Reviewing the situation that we have in this proceeding it is found that the Respondent does make the representations which are set forth in Appendix A to this decision. Donaldson v. Read Magazine, 333 U.S. 178, 189; Gottlieb v. Schaffer, 141 F. Supp. 7, 15-16.

Respondent does employ the mails to make solicitations of remittances of money for its product.

All of the scientific, medical evidence in this case is to the effect that this product will not accomplish those results which are set forth in the charges, which, in turn, are based on Respondent's advertising material.

It is true that the young ladies who subjected themselves to this test, or rather, who participated willingly in this test, stated that they had certain very measurable results. They had a feeling of euphoria. They felt as if they were smaller. They felt that their clothes were not so tight on them, and they indicated that they had this impression for periods up to and including a week or more.

Because of the capability of the test, due to the manner in which it was administered, to generate in the minds of these young ladies the results which they hoped would occur, which they knew was the reason for the administration of the test, the doctors are unanimous that there could be a psychological effect upon these young ladies which would convince them that they, in truth, had achieved the desired results. This placebo effect, as it is identified, might extend even to the investigator in this case.

This is not to say that these young ladies, or any of them, including the investigator Nurse Henke, would intentionally, or has intentionally, misrepresented her feelings in the matter. But it is a fact that the medical testimony in this record is completely against the occurrence of the results which these ladies have testified that they experienced.

In the case of Elliott Works v. Frisk, reported at 58 F.2d 820, it was said that opinions of experts, when founded upon known scientific facts, are not to be considered the same as opinions of laymen, but they are considered by the Courts as substantial evidence.

In the instant case there is the solid body of medical and scientific evidence which is to the effect that the results promised by the Respondent cannot be accomplished by using Respondent's product as directed. Because of the nature of the claims made by Respondent for its product, and because of the tenor and content of the medical and scientific testimony received in this case, it is found that the representations made by the Respondent are materially false as a matter of fact.

On the basis of all of the foregoing considerations, it is concluded as a matter of law that the Respondent is engaged in conducting a scheme for obtaining money or property through the mails by means of false representations, within the meaning of Section 3005, Title 39, United States Code.

It follows that an order of the type provided by that provision of law should be issued against this Respondent.

Counsel for both parties submitted proposed findings of fact and conclusions of law, and supported them with argument. To the extent indicated herein, those proposed findings of fact and conclusions of law are adopted. Otherwise such proposed findings of fact and conclusions of law are rejected for the reasons stated, or because they are contrary to or unsupported by the evidence, or because of their immateriality.

___________________

1/ Transcribed from oral decision as rendered at close of hearing held September 24, 1976. Minor language changes have been made, but the substance of the decision is unchanged.