In the Matter of the Complaint Against ADVANCED NUTRIENT, ADVANCED NUTRIENT PRODUCTS, Post Office Box 1059 at Southgate, Michigan 48195 and Post Office Box 701 at Taylor, Michigan 48180 P.S. Docket No. 5/164 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 respondents under 39 USC 3005 which authorizes action against respondents on evidence satisfactory to the Postal Service that respondents are "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations." Complainant alleges that respondents are engaged in such a scheme in the sale of DIET CAP. Specifically complainant in paragraphs (2) and (3) of the complaint alleges that respondents through the use of advertisements (Compl. Ex. 1 and 2) make representations, directly or indirectly, in substance and effect, whether by affirmative statements, omission or implication, as follows:
"(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."
Complainant further alleges in paragraph (4) of the complaint that these representations are false and materially so.
Respondents in their answer in effect admit that they make the representations alleged in the complaint by means of the advertisements already referred to but deny their falsity except for such "product puffing" as they deem necessary for competitive reasons.
As to the representation alleged in paragraph (3)(a) of the complaint respondents allege that according to the manufacturer of the caffeine capsule, this drug is "a general cerebral and body stimulant" (Att. to Answer) and that a dosage of 250 mg of caffeine would certainly "reduce" (though not "eliminate") fatigue. Moreover, the capsule contains phenylpropanolamine, described by respondents as "an appetite suppressant found in virtually all diet pills". Hence, respondents deny the falsity of the representation made.
As to the representation alleged in paragraph (3)(b) of the complaint, respondents again allege that the presence of phenylpropanolamine in the capsule achieves the suppression of appetite and that the caffeine therein achieves stimulation, a synonym for pep or energy according to Webster's Dictionary. A page from an otherwise unidentified dictionary is attached to the answer. Hence, respondents deny falsity of their representation.
As to the representation of newness, set forth in paragraph (3)(c) of the complaint, respondents assert that the capsules are manufactured to its formula and not sold by anyone else in the United States. They refer to the availability of the capsules without prescription because of customer inquiry on this point.
Respondents in their answer stated that they would be unable to attend the hearing to be held herein. Such hearing was held on 16 June 1977 and respondents did not appear. Hence, complainant pursuant to the rule laid down in 39 CFR 952.11(b) proceeded to present evidence in support of its complaint, covering a test purchase of respondents' product and expert medical testimony as to the falsity of their representations.
FINDINGS OF FACT
1. Respondents are engaged in the sale of diet capsules as part of the Advanced Nutrient Products Diet Plan with a stimulant through the mails and receive money through the mails (T 4-7). Purchasers are attracted by means of advertisements copies of which were attached to the complaint and admitted in evidence as complainant's exhibits 1 and 2.
2. The language of the representations set forth in paragraph (3)(a) and (b) of the complaint is taken verbatim from respondents' advertisements of 8 February 1977 (Compl. Ex. 1) and of 16 November 1976 (Compl. Ex. 2) respectively.
3. As to the representation set forth in paragraph (3)(c) of the complaint respondents' advertisements state:
"For the first time, no prescription is needed for a new green and white capsule . . ." (Compl. Ex. 1)
and
"No prescription is needed for a new GREEN AND WHITE capsule . . ." (Compl. Ex. 2)
This language forms an adequate basis for complainant's charge, as set forth in paragraph (3)(c) of the complaint.
4. I find, therefore that respondents make the representations set forth in paragraph (3) of the complaint which respondents, moreover, admit.
5. As part of the test purchase the postal inspector who made the same received a bottle, exhibited at the hearing, which bore a label (Compl. Ex. 3, p. 1), reading in relevant part:
"ADVANCED NUTRIENT
PRODUCTS
Diet Plan
WITH A STIMULANT
28 capsules"
and listing the contents of each capsule as:
Phenylpropanolamine 25 mg
Pyridoxine HCL 25 mg
Dexikianne (Advanced Nutrient
Product brand name for caffeine) 250 mg
"in a special timed formula base
that provides for prolonged thera-
peutic effect."
The label adds:
"Dexikianne relieves fatigue and 'let down' often caused by dieting."
The adult dosage is given on the label is one capsule in the morning.
6. The materials furnished to the postal inspector included also an ordering blank (Compl. Ex. 3, p. 3) and a diet plan, providing a sample weekly diet of three meals totalling about 1,000 calories per day (Compl. Ex. 3, p. 2).
7. Complainant's expert medical witness was a well-qualified physician, employed as a medical officer by the federal Food and Drug Administration and assigned since 1971 as Postal Collaborative Officer.
8. This witness testified that phenylpropanolamine was not an effective hunger depressant and 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 (T 14). For more detailed findings on phenylpropanolamine reference is made to the findings of fact in American Research Labs, P.S. Docket No. 5/159 (init. dec.).
9. The witness testified that pyridoxine was a vitamin B complex with no effect either in suppressing hunger feelings or eliminating fatigue (T 15, 16).
10. The witness finally testified that caffeine was a cerebral stimulant but that the capsules on a time-release basis released only about 30 mg of caffeine per hour during an 8-hour working day (obviously much less if the release time extends over a 12-hour waking day) or less than half a cup of coffee per hour. He deemed this amount of caffeine insufficient as an effective stimulus to cerebral activity (T 15) and pointed out that caffeine was a drug and not food and, hence, did not provide "energy", that is: a supply of nutrients to the body (T 15).
11. Stimulant capsules containing caffeine, with or without the addition of phenylpropanolamine, as an alleged hunger depressant, are not new in kind nor have such capsules with the dosages here involved required a physician's prescription, at least for a great many years past (T 16).
12. On the basis of the foregoing detailed findings of fact and the record as a whole I find that the representations made by respondents, as alleged in the complaint, are false. I have on the record made in this proceeding no reason to reject the expert medical testimony proffered by complainant and it is accepted as correctly representing the consensus of medical opinion.
13. Respondents' representations are also materially false since they falsely represent the very qualities of their product which induce potential purchasers thereof to buy it.
CONCLUSIONS OF LAW
1. Respondents are 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 respondents.
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