In the Matter of the Complaint Against CARTER-ROSS LABS, Post Office Box 1082 at Southgate, Michigan 48195 P.S. Docket No. 5/163 07/25/77 Sobernheim, Rudolf Administrative Law Judge APPEARANCES: Thomas A. Ziebarth, Esq. Consumer Protection Office Law Department U. S. Postal Service Washington, D. C. 20260 for Complainant Mr. R. E. Gumen (?) 1/ 14162 Ziegler Taylor, Michigan 48180 for Respondent
This is a proceeding by complainant against respondent under 39 USC 3005 which authorizes action against respondent on evidence satisfactory to the Postal Service that respondent is "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations." Complainant alleges that respondent is engaged in such a scheme in the sale of a diet plan and capsule called "BIO-TRIM DIET PLAN WITH PHENYLPROPANOLAMINE". Specifically complainant in paragraphs (2) and (3) of the complaint alleges that respondent through the use of advertisements (Compl. Ex. 1 and 2) makes representations, directly or indirectly, in substance and effect, whether by affirmative statements, omission or implication as follows:
"(a) The NEW CAPSULE is a 'dramatic fat burning capsule that melts away unsightly fat 24-hours a day';
(b) The NEW CAPSULE contains 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."
Complainant further alleges in paragraph (4) of the complaint that these representations are false and materially so.
Respondent in its answer in effect admitted that it made the representations alleged to have been made by it in paragraph (3) of the complaint through the advertisements copies of which are attached to the complaint. It denied, however, that such representations, while they might contain some "product puffing" necessary to compete, were not false. In an attachment to its answer it specifically alleged in respect of the representation set forth in paragraph (3)(a) of the complaint that the three strong active ingredients of its Bio-Trim pills were phenylpropanolamine (appetite suppressant), methylcellulose (expansible mass to give full stomach feeling) and benzocaine (pain killer, aiding in killing hunger pains) and that these caused their user to take in less food and, hence, to lose weight. USDA Home and Garden Bulletin No. 74 is cited in support of the statement that lessened calorie intake causes weight loss and a copy thereof is attached to the answer.
The representation of respondent, set forth in paragraph (3)(b) of the complaint, is similar to the first one and answered in the same manner.
As to the representation of respondent, set forth in paragraph (3)(c) of the answer, respondent asserts that the weight loss achieved through the ingestion of the capsules is "permanent" if respondent's suggested diet is permanently adopted by the user of the capsules.
Respondent also stated that it would be unable to attend the hearing, set for 16 June 1977. Respondent did not appear at the hearing and complainant presented evidence thereat in support of the complaint in accordance with the rule laid down in 39 CFR 952.11(b). Such evidence involved a test purchase made by a postal inspector (T 4-6) and expert medical testimony intended to show the falsity of respondent's representations.
FINDINGS OF FACT
1. Respondent is engaged in the sale of allegedly fat-burning capsules which, when ordered by a purchaser, are received as a part of respondent's Bio-Trim diet plan with phenylpropanolamine.
2. Respondent sells the capsules and plan through the mails, seeking to attract purchasers through its advertisements (Compl. Ex. 1 and 2) and receives money for its product through the mails.
3. Respondent's advertisements (Compl. Ex. 1, 2) announce a "new capsule" which "melts fat forever".
a. The advertisements continue:
"First came aspirin for headache . . . then the cold tablet . . . Now a dramatic FAT-BURNING CAPSULE that melts away unsightly fat 24-hours a day."
b. The advertisements refer to an "exciting, new fat dissolving formula that activates the body chemistry to "SHED UGLY FAT" and converts the body into "a fat shedding system whereby calories are burned off faster than consumed."
c. Fat, according to the advertisements, is melted "forever" and as a result fat is lost "permanently".
4. In the substance and wording of its advertisements respondent makes the representations which complainant has set forth in paragraph (3) of the complaint.
5. In response to the test purchase the postal inspector received a bottle with 30 capsules, a special savings offer ordering blank (Compl. Ex. 3, p. 2) and a sheet, labelled "The Common Sense Diet Plan" (Compl. Ex. 3, p. 3), which gives the appearance of typewriting. The sheet provides menus for three meals per day for each day of the week and a list of substitute foods. However, no quantitative limits are set. In the upper right hand corner under the quoted title it states "Eat all you want" in underlined capital letters and continues in the "fine print":
"To melt pounds and inches of unsightly fat, simply follow this proven common-sense diet plan.... And if you continue this common-sense eating plan, ugly fat will stay off your body."
6. a. The bottle of capsules was exhibited at the hearing and a copy of its label admitted in evidence (Compl. Ex. 3, p. 1). The center of the label reads:
"BIO-TRIM
DIET PLAN
WITH PHENYLPROPANOLAMINE
One Capsule Works All Day
30 CAPSULES" and lists respondent as distributor.
b. The ingredients of the capsule are stated on the label as follows:
Phenylpropanolamine Hcl 25 mg
Caffeine 50 mg
Sod. Carboxymethylcellulose 45 mg
Benzocaine 2.9 mg
as well as small quantities of various vitamins, acids and minerals.
c. The label also states the adult dosage as one capsule per day or as directed by a physician, especially if the user suffers from high blood pressure or heart, diabetic or thyroid disease.
7. In the statement of Pharmecon, Inc., attached to the answer, the ingredients of the capsule, apart from the vitamins, acids and minerals, are stated as follows:
Caffeine 150 mg
Methylcellulose 135 mg
Phenylpropanolamine 75 mg
Benzocaine 9 mg
8. The discrepancies in the quantities of the ingredients as stated by Pharmecon, Inc. and on the label (Compl. Ex. 3, p. 1) are striking. For purposes of this proceeding the figures given on the product label must be accepted as correct.
9. Expert medical testimony was given on behalf of respondent by a well-qualified physician, employed by the federal Food and Drug Administration as medical officer and assigned since 1971 as Postal Collaborative Officer.
10. This witness testified that none of the active ingredients listed on the label of the bottle of capsules (Compl. Ex. 3, p. 1) had any effect on suppressing feelings of hunger or reducing appetite.
a. Phenylpropanolamine is used as a nasal decongestant and, even if its action is to dry out the mouth, such action does not reduce appetite (T 10, 12).
b. Methylcellulose, inflated in water, may create bulk in the stomach and give a feeling of fullness. The mass created by the quantity used in respondent's capsule is, however, only the size of a pea and insufficient to create the sensation of a full stomach (T 10).
c. Benzocaine is a topical anesthetic which, taken orally in the capsule, enters the stomach. It is not, however, effective there (T 10, 12).
d. Caffeine, a cerebral stimulant, has no dietary effect (T 13).
11. The medical witness further testified that the allegedly active ingredients incorporated by respondent in its capsule (other than caffeine) are frequently used in over-the-counter diet pills but are ineffective nevertheless (T 8-9, 12). But diets are an effective means to weight reduction and permanent weight loss presupposes permanent dieting (T 10). Respondent's diets impose, however, no limits on the amount of food eaten and, hence, may result in weight increase rather than loss (T 11).
12. The views expressed by the expert witness represent professional medical consensus.
13. Based on the foregoing findings of fact and the record as a whole I find that the representations made by respondent, charged in paragraph (3) of the complaint, are false for the capsules sold by respondent contain no fat-melting or fat-burning ingredients and their consumption does not produce permanent weight loss.
14. Respondent's representations are also materially false for they misrepresent those qualities of the product on the basis of which prospective purchasers are being solicited to buy it.
CONCLUSIONS OF LAW
1. Respondent is engaged in a scheme or device to obtain money through the mails by means of false representations contrary to 39 USC 3005.
2. Accordingly, a mail stop order, as provided in 39 USC 3005 and in the form annexed, should be issued against respondent.
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