In the Matter of the Complaint Against

 BIOCHEM RESEARCH, c/o Elk Lodge Office,
 Route 4 at Boone, NC 28607

 P.S. Docket No. 5/143
 
 05/06/77
 
 Grant, Quentin E. Administrative Law Judge

No appearance for Respondent.

Before: Quentin E. Grant, Administrative Law Judge

On March 7, 1977, complainant initiated this proceeding 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 within the meaning of 39 U.S.C. 3005. Referring to advertising matter utilized by respondent, a typical copy of which is attached hereto as Exhibit A, complainant specifically alleges as follows:

II

"(a) That, by means of said advertisement, and in similar matter, Respondent represents, directly or indirectly, by means of affirmative statement, implication, or omission, in substance and effect, that the 'CELLU-GEL home-treatment kit' will reduce the size of the buttocks;

"(b) That, by its failure to disclose that materials in addition to the kit are required, Respondent falsely represents that the kit provides all that is necessary to effect the result charged in subparagraph (a), supra.

III

"That said representations are materially false as a matter of fact;

IV

"That by means of requests contained in, or accompanying the advertisement, Respondent seeks to induce readers thereof to remit money or property through the mails to the captioned name and address for said product."

Notice of a hearing to be held on April 18, 1977 was delivered to respondent on March 10, 1977. Thereafter, respondent by one Walter Head, Jr. filed two letters in effect answering the complaint and denying complainant's allegations.

A hearing was held as scheduled on April 18, 1977. There was no appearance thereat by or on behalf of respondent. Complainant's evidence was taken pursuant to 952.11 of the rules governing this type of proceeding.

Under date of April 26, 1977 complainant filed a motion to correct the transcript. The motion is granted.

FINDINGS OF FACT

1. According to evidence given by and through Postal Inspector Adolph R. Dockus concerning a test purchase initiated by him, respondent is engaged in conducting a scheme or device for obtaining money or property through the mails (CX-1 - CX-9, Tr. 1-7).

2. A fair reading of respondent's advertisement (CX-1; Exhibit A attached hereto) discloses that it makes representations substantially as alleged in the complaint.

3. The product involved, CELLU-GEL, a white powder substance, comes in a clear plastic packet with instructions for mixing and is described in the printed instructions for use as a "slippery gel." The instructions received with the product are entitled "The Cellu-Gel, Rolling Pin Method." They state that "This method was developed for the easiest and fastest way to reduce the 'problem areas', especially the fanny, or derriere and the stomach or tummy." They require the use of a rolling pin along with the prepared slippery gel. The gel is rubbed on the buttocks and on the rolling pin. Then the rolling pin is rolled back and forth over the buttocks at least 20 times. The treatment is to be performed nightly before bedtime and, if possible, a short time in the morning. Also furnished with the product is a diet called the "Appestat Breaker" Liquid Diet Formula. The diet instructions contain the following statement:

"It is highly desirable for anyone beginning Cellu-Gel treatments to go on this formula for a week prior to treatments and continue it during the treatment period. This prepares the underlying fatty tissues to respond the fastest to the gel-rolling pin treatments."

4. Dr. Vincent F. Cordaro, a qualified doctor of medicine, testified for complainant. According to Dr. Cordaro, excessive girth of the buttocks accompanies obesity which is generally the result of overeating. The condition is treated by diet to reduce the caloric intake. Reduction of caloric intake results in loss of fat, including excessive fat in the buttocks.

5. According to Dr. Cordaro massage or manipulation will not cause reduction in size of the buttocks or any other area of the body. With particular reference to the product and method involved in this proceeding, Dr. Cordaro testified that a massage combining Cellu-Gel and a rolling pin would not cause a reduction in the girth of the buttocks or any other area of the body.

6. According to Dr. Cordaro the diet, which is not disclosed in respondent's advertising, is not restricted by weight or measure of the foods contained therein and therefore does not offer much likelihood of weight loss and could result in an increase in weight. The diet is not stated by respondent to be an essential part of the treatment although it is said to be desirable in attainment of the end result.

7. Dr. Cordaro's opinions with respect to the matters in issue are in accordance with the consensus of informed medical opinion.

CONCLUSIONS OF LAW

1. Respondent is engaged in the conduct of a scheme or device for obtaining money or property through the mails.

2. A fair reading of respondent's advertisements discloses that in the conduct of such scheme respondent makes representations as characterized in the complaint.

3. Such representations are materially false in fact in that the product, i.e., the Cellu-Gel used with a rolling pin, will not reduce the size of the buttocks. Further, such representations are false in that the "Cellu-Gel home treatment kit" does not provide all the materials required to pursue the effect promised.

4. An order pursuant to 39 U.S.C. 3005 should issue against respondent.