In the Matter of the Complaint Against CARTER-ROSS LABS Post Office Box 1082 at Southgate, Michigan 48195 and ADVANCED NUTRIENT ADVANCED NUTRIENT PRODUCTS Post Office Box 1059 at Southgate, Michigan 48195 and Post Office Box 701 Taylor, Michigan 48180 P.S. Docket No. 5/163; P.S. Docket No. 5/164; 09/30/77 Lussier, Edward F. APPEARANCES FOR COMPLAINANT: ThomasA. Ziebarth, Esq. Law Department U.S. Postal Service Washington, D.C. APPEARANCES FOR RESPONDENT: Mr. R. E. Gumen Taylor, Michigan
On July 25, 1977, Administrative Law Judge Rudolf Sobernheim issued an Initial Decision in each of the above captioned cases. He recommended, in each case, the issuance of a mail stop order based on his conclusion that the advertising representations made by the Respondent in the sale of "Diet Cap" and "New Capsule" through the mails were materially false. Respondent has filed one letter of appeal covering both Initial Decisions. Complainant has filed a reply memorandum and the cases are ready for final Postal Service Decision.
A brief summary of the proceedings is in order at this point. In Carter-Ross Labs, P.S. Docket No. 5/163, the Consumer Protection Office, Law Department, U.S. Postal Service, as Complainant herein, alleged that Respondent was "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 United States Code § 3005. Specifically the Complaint charged that Respondent through its advertisements for the product "New Capsule" made the representations that--
"(a) The NEW CAPSULE is a 'dramatic fat burning capsule that melts away unsightly fat 24-hours a day';
(b) The NEW CAPSULE continas a 'new fat dissolving formula that activates the body's chemistry to shed ugly fat' -- causing the body to become 'a fat shedding system whereby calories are burned off faster than consumed'; and
(c) The weight losses achieved through the use of the NEW CAPSULE will be permanent."
In Advanced Nutrient, advanced Nutrient Products, P.S. Docket No. 5/164, the Complaint charged that Respondent through its advertisements for the product "DIET CAP" made the representations that --
"(a) The DIET CAP is guaranteed to eliminate fatigue while pounds and inches melt away;
(b) The DIET CAP works all day long to suppress the appetite and provide an abundance of energy; and
(c) The DIET CAP is a new product available for the first time without a prescription."
Judge Sobernheim found that all of the foregoing representations were in fact made and, based upon the evidence adduced in each case at the hearing, were materially false.
Respondent's brief letter of appeal takes issue with one aspect only of the decisions and that is the testimony of Complainant's expert witness that phenylpropanolamine is not an effective appetite depressant. It does so principally by enclosing two products, "Dexatrim" and "Appedrine", the over the counter merchandising of which it contends is reliable evidence as to the effectiveness of phenylpropanolamine as an appetite depressant or the Food and Drug Administration would take action against such products.
There are a number of reasons why Respondent's exception to the Initial Decisions must be disallowed. To begin with, the introduction of evidence at this late date is unwarranted. Further, as Complainant's Reply Memorandum points out the conclusion Respondent draws is speculation and cannot therefore be given evidentiary weight. There is also for consideration, and quite significantly, the fact that only one of the six representations quoted above, and found materially false, involves the issue of an appetite depressant.
Thus in the Carter-Ross Labs case, P.S. Docket No. 5/163, the matter becomes irrelevant when compared to the precise representations in issue which alone constitute the subject matter of the case. In the Advanced Nutrient, Advanced NutrientProducts, case P.S. Docket No. 5/164, only one of the three representations found false relates to the appetite depressant issue and that is the representation that--
"The DIET CAP works all day long to suppress the appetite and provide an abundance of energy."
Here the relevant finding of fact was that the 25 mg. dosage in a one day time-release capsule was insufficient for such purpose" even if this drug had a hunger-depressant effect" (Initial Decision, p. 6). In this connection it may be noted that by comparison "Appedrine" is taken three times a day with 25 mg dosage of phenylpropanolamine in each capsule and is not a time release capsule and that "Dexatrim" contains twice the dosage of Respondent's "Diet Cap."
The representations which are at issue in these cases have been found to be false on a record which contains substantial evidence to uphold those findings. Respondent's exceptions to the Initial Decisions is disallowed and those decisions are hereby upheld. Accordingly, appropriate remedial orders under the provisions of 39 U.S.C. § 3005 are being issued contemporaneously with the issuance of this decision.