In the Matter of the Complaint Against
BRAD MITCHELL, and
AMAZING DIETS, INC. 1/
27313 Plymouth Rd.
at
Detroit, Michigan 48239
P.S. Docket No. 5/147
08/18/77
Duvall, William A. Chief Administrative Law Judge
H. Richard Hefner, Esq.,
Law Department
United States Postal Service
Washington, D. C., for Complainant
John D. Sills, Esq.,
1550 North Woodward Avenue,
Birmingham, Michigan, for Respondent
Before: William A. Duvall, Chief Administrative Law Judge
In this proceeding, the United States Postal Service (Complainant) charges Brad Mitchell and Amazing Diets, Inc., 27313 Plymouth Road, Detroit, Michigan (referred to collectively as Respondent) with engaging in the conduct of a scheme or device for obtaining money through the mails by means of false representations within the meaning of 39 U. S. Code 3005.
The specific charges in paragraph III of the Complaint are that Respondent makes the following representations which are alleged to be materially false as a matter of fact:
(a) The FAT BURNING SYSTEM is an effective means of overcoming obesity without regard to the caloric content or quantity of food consumed.
(b) The FAT BURNING SYSTEM will permit obese persons to lose fat at a rate of more than one pound daily without regard to caloric content or quantity of food consumed.
(c) The AMAZING FAT BURNING SYSTEM differs significantly from all other methods intended for the control of obesity.
(d) The AMAZING FAT BURNING SYSTEM is a sure remedy for obesity.
(e) The AMAZING FAT BURNING SYSTEM will overcome obesity irrespective of the number of unsuccessful attempts previously made by the obese person.
A timely answer was filed by Respondent in which it (1) admits advertising for the purpose of receiving money through the mails for a booklet; (2) admits that the advertising circular attached to the Complaint as Exhibit A (and attached hereto as Appendix A) is used by Respondent in the conduct of its business; (3) denies making representations III (a), (b), (c) and (e) of the Complaint and (4) admits that it makes the representation in III (d) of the Complaint.
Since Respondent admits the use of Appendix A in soliciting money through the mails for its product, no lengthy discussion of these issues is necessary. The charges on these points are sustained, however, by Complainant's exhibits received in evidence in connection with the testimony of Postal Inspector Henry Laws, who investigated the case (Tr. 6-35).
That the Respondent makes the representations set forth above is established by referring the following language from Appendix A with respect to each of the said representations and by applying to that language the rule of interpretation enunciated in Donaldson v. Read Magazine, 333 U.S. 178, 189:
Charge III (a):
"'I NEVER STOPPED EATING - YET I LOST 18 POUNDS IN 15 DAYS]'" "POSITIVE PROOF THIS SYSTEM REALLY WORKS...AND FAST]]" "And, believe it or not, I kept my stomach full of food (no hunger pains)." "In fact everyone I put on this Amazing Fat Burning System, reported that they made fantastic weight losses--fast and easily]" "Our program offers you plenty of food to eat, plus supplements that will also help burn off the excess fat."
Charge III (b):
"'I NEVER STOPPED EATING - YET I LOST 18 POUNDS IN 15 DAYS]'" "'I lost 4 Pounds in one Day . . . A Total of 27 Pounds in 21 Days]'" "And, my wife lost 40 pounds in only 30 days]" etc.
Charge III (c):
"I firmly believe that this Amazing Fat Burning System is the most effective system ever." "IS IT THE WORLDS FASTEST, MOST EFFECTIVE FAT BURNING SYSTEM EVER? I sincerely think it is]" "This system is so unique and effective (because it really works)--so much so, that we have had the system copyrighted with the US Government, so that the secrets cannot be copied and stolen]"
Charge III (d):
"POSITIVE PROOF THIS SYSTEM REALLY WORKS . . . AND FAST]]" "I have helped thousands of people lose weight. And I believe I can help you]" "In fact everyone I put on this Amazing Fat Burning System, reported that they made fantastic weight losses--fast and easily]" "But, it's nice to know that the Fat Burning System can accomplish almost any weight reduction you desire." "Everyone can use this system, regardless whether you're young or not so young."
Charge III (e):
"It doesn't matter whether you're 10 or 100 pounds overweight, or how many times you have tried to get into shape." "Remember, it doesn't matter how many times you have tried to lose weight, your time has finally come, with the Amazing Fat Burning System]"
The product being sold by Respondent is a flexible-cover booklet with the words "THE AMAZING fat-burning system - Brad Mitchell - SPECIAL REPORT" on the front cover. On the back cover are the words "AMAZING DIETS". The publication is approximately 8 1/2 x 11 1/2 inches in size and contains 94 unnumbered pages divided, roughly, into different departments, as follows:
Topic No. of Pages
Introduction by, and photograph of, 6
the author
A Diet Created for Professionals 2
MENU (and discussion of food supplements) 16
Specific diet for one week 7
Article on, and suggested schedule for 10
rope-jumping
Instructions and illustrations of exercises 22
Nutritive Value of Foods 31
Some excerpts from the booklet shed some light on nature of its contents. Examples are:
"We hope you enjoy reading about and working with the Amazing Fat Burning System. However, before beginning our program--using our suggested dieting systems and exercising schedule--PLEASE make it a point to check with your doctor FIRST] Get a complete medical check-up and show him our program. He'll let you know if you can use our system safely and effectively." (This notice appears on the middle of the upper half of the first page.)
The following paragraphs appear in the Introduction.
* * *
"The Fat Burning System consists of four parts:
1. LOW CARBOHYDRATE DIET
2. FOOD SUPPLEMENTS (this is optional, only if convenient)
3. JUMPING ROPE
4. SUPPLEMENTAL EXERCISES
* * *
"Low Carbohydrate Diet . . . you can literally eat all the food you want (meat, fish & eggs) --- so long as you consume under 60 grams of carbohydrate a day. Plus, you can drink as much low-cal pop as you wish. And you can drink all you want of both tea and coffee (without cream & using saccharin instead of sugar).
"Food Supplements . . . you'll be taking food supplements for two reasons -- biggest reason is the increased nutritional benefits you'll receive (after all, health is everything and increased vitality should be worth any price). Second reason for taking food supplements is because hundreds of nutritional experts and top body-builders firmly believe that they speed up the metabolism and help burn off the fat.
"Jumping Rope . . . don't laugh, astronauts do it, so do champion athletics. There obviously has to be something very unique about this exercise]
* * *
"Supplemental Exercises . . . with supplemental exercises you can exercise any specific muscle group you desire. For instance, say you have lost all your muscle tone in your waist (sagging waist line) --- simply do one or two exercises for the waist (three times a week, no more). Or if you feel your legs are flabby, do a leg exercise (three times a week)."
Respondent's abbreviated description of his diet appears on the 23rd unnumbered page of the booklet in the following language:
"THIS IS THE EASIEST DIET TO FOLLOW:
"All you have to do is remember that you can eat all you want of the following foods (unlimited quantities):
FISH
MEAT
EGGS
CHEESE (cheese you can eat, but you have to keep a check on it as it does contain some carbohydrates; check the back of this book)
"Eat as much as you want of the above foods, as often as you wish anytime during the day. Have as much diet soda as you wish---and unlimited amounts of coffee and tea (using artificial sweetners).
"YOU CAN ALSO EAT ALL YOU WANT OF THE FOLLOWING FOODS (unlimited quanties (sic)):
Bacon Fish Margarine
Beef Gelatin (artificially Pork
Butter sweetened) Rum
Brandy Gin Sausage
Caviar Ham Scotch
Chicken Hamburger Shrimp
Coffee Lamb Tea
Crabmeat Liver Turkey
Duck Lobster Veal
Eggs Lunch Meat Vodka
Whiskey
"You can eat as much as you want of the above foods since they contain NO carbohydrates (or only slight traces).
"YOU CAN EAT ANY OTHER KIND OF FOOD . . . AS LONG AS YOU KEEP YOUR CARBOHYDRATES UNDER 60 GRAMS A DAY. The back of this book contains a complete listing of all kinds of foods --- and the amount of carbohydrates they contain. Keep the carbohydrates under 60 grams a day and you'll lose weight]]"
With respect to the medical aspects of Respondent's program Complainant elicited expert medical testimony by a well-qualified physician who is assigned by the Food and Drug Administration, where he is regularly employed, as a Collaborative Medical Officer to advise the Postal Service Office of Consumer Protection and the Postal Inspection Service in matters such as the instant proceeding.
Obesity is the accumulation of excess fat on the body using as a standard certain arbitrary points designated by nutritionists. Skin folds in these areas are measured by a micrometer and the amount of fat in these areas is indicative of the amount of fat in the body. (Tr. 39) Obesity is caused, in 95 per cent of the cases, by the intake of more calories than the individual requires for maintenance of standard body weight. The remaining cases of obesity are attributable to metabolic or glandular malfunction. (Tr. 40)
Respondent's program consists primarily of a low- or no-carbohydrate diet, diet supplements of vitamins and minerals, and exercise, although, except in rare cases of vitamin and mineral shortages, the supplements do not produce weight gain or loss. (Tr. 50) The diet is medically classified as a ketogenic diet. (Tr. 41) In such a diet the production of ketone bodies accompanies fat metabolism. These are passed through urine and this is typically what is found within the metabolic acidosis of diabetes, in which carbohydrates are not utilized unless insulin is used for that purpose. Eventually, a ketogenic diet will lead to death unless it is corrected by the use of insulin or the addition of carbohydrate in a non-diabetic person. Some people who diet without medical attention may be what are called borderline diabetics. These people would suffer gravely from such a diet. Others may be cardiacs or kidney disease sufferers who also would suffer from such a diet. (Tr. 44)
The method of choice of the medical profession in the treatment of the obese patient begins with the taking of a complete medical history, followed by a physical examination, including such laboratory tests as are necessary. If no physical malfunction causing the obesity is found, psychological causes are explored. Based upon the results of the foregoing procedures the physician prescribes a diet to meet the needs of the particular individual. For the average person who is not physically ill or psychologically dependent on food, a well-balanced, calorie-reduced diet which contains the three food elements (proteins, carbohydrates and fats) plus supplementary vitamins and minerals is prescribed. (Tr. 47-48) There is no one diet which is effective for all obese persons. Keeping one's self on a diet is very difficult, and the doctor-patient relationship is very important to the patient's efforts to remain on a weight-reducing diet. (Tr. 45)
In order to lose a pound of fat, it is necessary to create a deficit of 3500 calories. The maintenance diet for the average woman ranges from 2,200 to about 2,450 calories per day, while for the average male the range is from 2,400 to about 3,000 calories per day. Because there is no restriction as to the amount of proteins and fats to be ingested, it is likely that a person following Respondent's diet will gain weight. (Tr. 52-53)
The exercise programs advocated by Respondent are extremely strenuous. Very obese persons frequently suffer from weak muscles and joints. For such persons, and to unrecognized cardiac, kidney and diabetic patients, Respondent's exercise program would be extremely hazardous. (Tr. 50)
Respondent's "fat burning system" is a very common plan and does not differ significantly from other similar programs reviewed by the medical expert in the performance of his functions with the Food and Drug Administration. The witness stated (1) that he does not consider Respondent's program to be a remedy for obesity; (2) that for a person who has tried, but failed, to diet and lose weight, there is nothing in Respondent's plan that would enable him to succeed in losing weight; and (3) Respondent's program as a means of overcoming obesity would be ineffective if one disregards the calorie content and the quantity of food consumed. (Tr. 54-55)
Morris (Brad) Mitchell, the owner of Respondent, testified that he is 36 years old, has a high school education, is now, and for the past 19 years has been, in the body building business, and that it is from this occupation that he has acquired his expertise in the fields of dieting and exercise. Mr. Mitchell bases his confidence in the low-carbohydrate diet he espouses on the fact that many body builders recommend it, and on the additional fact that he followed the diet in a program in which he reduced his weight by 18 pounds in 15 days. (Tr. 145) He said that a low calorie diet is a problem because of the necessity to count calories, whereas, with the low carbohydrate diet the dieter knows just what he can and what he cannot eat. (Tr. 153) While he was following the plan he ate only "meat and fish. That was it. I occasionally had a small piece of fruit." At another point in his testimony he stated that he did eat some salads "and a little bit of honey in the morning." (Tr. 160)
The witness stated that in seeking to lose weight he encourages "exercising, a lot of exercising." (Tr. 148) On the other hand, he wants everyone to check with a doctor before embarking on the Amazing Fat Burning System because everyone has a different body and Respondent does not know the medical condition of everybody. His admonition to see a doctor before starting on the program is on the first page of his book. (Tr. 150, 151; Ex. C-B1) Some purchasers, in asking for refunds - which Respondent invariably makes, have indicated that their physicians have advised them not to follow the program. (Tr. 150) There have been some people who told him that the plan requires too much work, but he knows of no one who has had a ketogenic problem or a physical injury. (Tr. 156-157)
Certain features of Mr. Mitchell's testimony stand out prominently when the testimony is considered in its entirety. First, most of the people with whom Mr. Mitchell comes in contact are people who are interested in body building either as a business, as a contest, or as a matter to which they devote unusual attention. (Tr. 145, 1. 12-16; p. 147, 1. 6-9, 1. 22-24; p. 148, 1. 11-14; p. 149, 1. 4-12;p. 152, 1. 1-14; p. 157, 1. 17-25; p. 158, 1. 1-12; p. 163, 1. 23-25; p. 164 - all; p. 167, 1. 2-7) These dedicated body builders are more likely, because of the motivation of competition and the awards and publicity to be gained therefrom, to be able to adhere to, and to exceed, the dietary and exercise requirements of Respondent's program than is the unsupervised, individual who is trying, in effect, to compete only with himself.
Second, although Mr. Mitchell says that every individual has a different body with different nutritional needs (Tr. 151, 1. 10-14), he, nevertheless, is engaged in selling to anyone who submits an order a dietary and exercise regimen that is the same for everyone.
Third, and this list is not intended to be all-inclusive, on the first page of his book Mr. Mitchell advises every purchaser, before launching themselves into the plan:
"* * * PLEASE make it a point to check with your doctor FIRST] Get a complete medical check-up and show him our program. * * *"
Unfortunately for the purchaser, by the time he receives this sage advice from Respondent, the purchaser will already have parted with his $9.95 the refund of which he may, or may not, seek.
Two additional witnesses were called by Respondent - Mrs. Brad Mitchell and a longtime (Tr. 141) friend of Mrs. Mitchell's, Mrs. Joyce Myers. Mrs. Myers is employed from time to time by Respondent as a model. (Tr. 130) Mrs. Myers said that about three years ago she lost 27 pounds in 21 days. Although the program described in Respondent's book (Ex. C-B1) calls for "less than 30 minutes a week (total time) --- less than 10 minutes three times a week", Mrs. Myers stated that when she was on the low carbohydrate diet she exercised "about a total of two hours" daily. (Tr. 128) At this time Mrs. Myers had two small children - one, an infant - whose care required a good bit of activity on her part. (Tr. 133)
Mrs. Mitchell's experience with the program was similar to that of Mrs. Myers in that Mrs. Mitchell said she lost 28 pounds in 30 days. She said that she does not have an accurate scale in her home (Tr. 139), but it is not known when and where the weights just mentioned were taken. Mrs. Mitchell stated that dieting is difficult for her and, as a result, she has to "really think about it and really want to do it" and devote herself to it. (Tr. 136) While on the Respondent's plan, she exercised every morning and evening, but she does not recall for how long she exercised each day. For some unspecified length of time Mrs. Mitchell has engaged in jogging and playing basketball with her children, (Tr. 141) but she did not state whether she did these things at the time she was following Respondent's program.
At the hearing, there were received in evidence two books 2/ that contain views which Respondent insists supports its position in this proceeding. The only competent, credible evidence on this point in this record is to the effect that the authors of these books, and their views expressed therein, insofar as they advocate or relate to a low- or no- carbohydrate diet, have been thoroughly discredited and are not generally recognized by the medical profession as proper diets for use in treating obesity. (Tr. 66, 69, 173) Thus, the fact that these books contain statements similar and favorable to Respondent's position can not be a source of great comfort to Respondent in this proceeding.
In its Brief Respondent asserts that the evidence in this proceeding includes statements by three persons who followed the program and who thereby achieved significant weight losses in short periods of time.
With respect to the anecdotal accounts by these witnesses of their use of Respondent's program, it must be pointed out that the claimed following of the program was unsupervised, no records were maintained as to the kind, the quality, or the amount of food ingested or exercise performed. There were no controls established, and the "tests" were by no means scientifically supervised. In short, the testimony of these witnesses is legally insufficient to establish the validity of the points the witnesses sought to make, and such testimony is clearly inadequate to lend any credibility to the claims Respondent makes for its product.
Aside from the obvious interest of each of these witnesses in the outcome of this proceeding, however subconscious that interest may be and however subtly that interest may have exerted itself, these witnesses did not, in fact, follow Respondent's plan. Each of them exercised far more than the plan called for, in the case of Mrs. Mitchell and Mrs. Myers, or, in the case of Mr. Mitchell, he exercised "very hard". (Tr. 159) Since it is a matter of common knowledge that in exercising one uses calories, it follows that the more one exercises the more calories are burned with the attendant loss of weight. This fact coupled with the interest of the witnesses, seriously weakens the effect of their testimony.
Far more serious, however, is the fact that these witnesses testified that they achieved results in terms of weight loss over a short span of time which the only competent, credible, expert testimony in the record established as being impossible. To lose one pound per day a daily net deficit of 3,500 calories must be achieved. In a week's time, a person accomplishing a loss of seven pounds - a pound a day - would have lost, also, his energy and his healthy condition. (Tr. 114)
Respondent asserts in its Brief that the statements in its advertisement on which the charges are based are matters of opinions and belief and, hence, they are only puffing. When a promoter promises in its advertising statements that the use of its product will produce a result which expert testimony establishes is a physical impossibility, those statements far exceed the limits of puffing and extend well into the area of false representation. Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (1959) and the fact that refunds are promised to unsatisfied customers does not alter the situation. (G. J. Howard v. Cassidy, 162 F. Supp. 568)
Based upon the entire record in this proceeding, it is concluded that Respondent:
1. makes the representations set forth in paragraph III (a) through (e) of the Complaint;
2. the representations made by Respondent in its advertising matter are shown by the credible evidence to be false as to material matters of fact; and
3. the 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 section 3005 of Title 39, United States Code.
A mail-stop order should be issued against the names shown in the style hereof.
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