Appeal of P.S. Docket No. 5/172 -- DIET RESEARCH


 In the Matter of the Complaint Against

 DIET RESEARCH
 (or any variation thereof) at
 1865 Warren Way Atlanta, GA 30344 and at
 P. O. Box 91189 East Point, GA 30364 and at
 P. O. Box 91189 Atlanta, GA 30344

 P.S. Docket No. 5/172
 
 08/29/77
 
 Sobernheim, Rudolf Administrative Law Judge
 
 APPEARANCES:
 Daniel S. Greenberg, Esq.
 Consumer Protection Office
 Law Department U. S. Postal Service
 Washington, D. C. 20260 for Complainant 

 Jack K. Bohler, Esq.
 2706 Harris Street
 East Point, Georgia 30344 for Respondent

INITIAL DECISION

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 The Rice Diet. Specifically, complainant in paragraphs I and II 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:

"(1) That 'The Rice Diet' (hereinafter referred to alternatively as the 'diet') reverses much of the damage done by disorders of the:

(a) blood vessels;

(b) eyes;

(d) kidneys;

(2) That the following losses of excess weight are typical of losses that may be expected:

(a) 80 pounds in 19 weeks;

(b) 35 pounds in 5-6 weeks;

(3) That the results enumerated in subparagraphs (1) and (2), supra, will be due to the special properties of rice;"

Complainant further alleges in paragraph III of the complaint that these representations are false and materially so.

Respondent also had alleged in the complaint (Par. II (4)) that respondent had falsely represented that the rice diet was "safe for all who would reasonably be expected to employ" it. However, in the light of the expert testimony at the hearing (T 47, 83), complainant has withdrawn this charge of false representation and does not object to its dismissal (Compl. Br., p. 12).

Respondent's answer, on the letterhead of Diet Research, Inc., and signed by its president Frank Cawood, admitted that it made the representations alleged in paragraph II (1) and (2) of the complaint and denied representing in respect of the allegations of paragraph II (3) of the complaint that the results claimed for the rice diet "are exclusively due to consuming rice" and that so limited its representations in regard to the rice diet are true.

A hearing was held thereafter in Atlanta, GA, at which testimonial and documentary evidence was offered. After the hearing both parties filed briefs in support of their respective positions.

FINDINGS OF FACT

1. In answering the complaint herein Diet Research, Inc. of 1865 Warren Way, Atlanta, GA 30344 appeared and filed an answer over the signature of its president Frank Cawood. At the hearing Mr. Cawood testified that Diet Research was a trade name for his business (T 102) and that the "head name" was Frank Cawood Associates, a proprietorship which he was managing (ibid.). Accordingly, I find that Diet Research, Inc., Frank Cawood Associates and Frank Cawood, whatever their exact relationship, are doing business as "Diet Research", respondent herein.

2. Diet Research is engaged in obtaining money through the mails for the sale of a pamphlet, entitled "The Rice Diet", for which Frank Cawood did the preparatory work and of which he is the author (T 104, 109-110).

3. Complainant made a test purchase of respondent's product through the mails in response to the advertisement which is in evidence as complainant's exhibit 2. Respondent received the price for the pamphlet sold to the Postal Inspector (Compl. Ex. 8) acting as test purchaser for complainant, through the mails (Compl. Ex. 4 to 7).

4. Respondent admittedly seeks to attract purchasers for The Rice Diet through advertisements in newspapers (Compl. Ex. 1, 2) and through direct mail advertising (Compl. Ex. 3). Complainant's exhibit 2 represents advertising used in 1976 and its exhibit 1 represents respondent's current advertising format (T 5).

5. a. The 1976 advertisement (Compl. Ex. 2) on the basis of which the test purchase was made was captioned "THE RICE DIET" and stated beneath:

"IT'S A HEALING DIET AS WELL AS A REDUCING DIET."

b. The advertisement thereafter refers to the importance of a "no-fat" diet in the treatment of certain heart and kidney conditions and asserts that the health value of the rice diet is founded upon

"the fact that it contains no cholesterol - which many doctors believe dangerous to the heart, kidneys, and blood circulation."

c. Immediately after these words the advertisement continues:

"THE DIET REVERSES MUCH DAMAGE DONE BY HEART DISORDERS

Twenty-five years ago our medical establishment was extremely skeptical of the startling discovery that the Rice Diet reverses much of the damage done by blood vessel, eye, heart, and kidney disorders. Without any medication other than a prolonged diet largely composed of unsalted rice, some enlarged hearts grew smaller, blood pressures and blood sugar dropped.

CLAIMS FOR THE RICE DIET VERIFIED BY TEAMS OF DOCTORS

Teams of doctors from leading institutions around the world investigated the diet. They thought that they would scoff at the claims, but they applauded instead. 'The question now,' concluded a report in one eminent medical journal, 'is not 'Does the diet work?' The question is 'How does it work?'"

d. Under the caption:

"FAMOUS PEOPLE HAVE ENDORSED

THE RESULTS OF RICE DIETING" the advertisement quotes the unidentified wife of a former state governor (weighing 230 pounds) to have lost 80 pounds in 19 weeks and an equally unnamed singer and movie actor to have lost 80 pounds and still to follow the diet every day.

6. a. The 1977 advertisement (Compl. Ex. 1) is a full page spread with many more alleged testimonials but generally the same tenor as the 1976 advertisement. It urges the reader to order respondent's "new, comprehensive manual, The Rice Diet, now" which

"discloses the secret of how you can lose weight like people who report losses of up to 100 pounds and more in a brief time without hunger."

b. Speaking of the rice diet, the advertisement continues:

"IT'S A HEALING DIET

AS WELL AS A

REDUCING DIET

The famous Rice Diet wasn't even designed for taking off fat. It was created as a healing diet. And heal it does.

IT CONTAINS LITTLE

CHOLESTEROL

Medical Research has acclaimed a low-fat diet as being of paramount aid in the treatment of certain heart and kidney conditions. Scientists also advocate this program as the basis of a general reducing diet.

The health value of this diet is founded upon the fact that it contains little cholesterol - which many doctors believe dangerous to the heart, kidneys, and blood circulation.

THE DIET REVERSES

MUCH DAMAGE DONE

BY HEART DISORDERS

Our medical establishment was extremely skeptical of the startling discovery that the Rice Diet reverses much of the damage done by blood vessel, eye, heart, and kidney disorders. Without ay medication other than a prolonged diet largely composed of rice, some enlarged hearts grew smaller, blood pressures and blood sugar dropped.

CLAIMS FOR THE RICE DIET

VERIFIED BY TEAMS

OF DOCTORS

Teams of doctors from leading institutions around the world investigated the diet. They thought that they would scoff at the claims, but they applauded instead. 'The question now,' concluded a report in one eminent medical journal, 's not 'Does the diet work?' The question is 'How does it work?'"

c. The foregoing representations as to the medical benefits of the rice diet are followed by recitations of the testimonials of the former state governor's wife and of the unnamed famous singer and movie actor and others, including the alleged statement of a women in St. Joseph, MO, that she lost ten (10) pounds in two weeks.

d. This is followed by a claim of permanent weight loss the attainability of which is explained, as follows:

"PERMANENT WEIGHT LOSS

Your body has an appetite control center or appestat. If you are fat, it's because your appestat is set too high from eating the wrong kind of food. When you change the kind of food you eat by going on The Rice Diet, your body's appestat should soon adjust to a lower setting that won't compel you to overeat. Then you will be able to reach and maintain a normal weight without much effort -- It's that easy.

A famous medical research group says: 'Weight loss can occur permanently only if the appestat is readjusted to a lower level.'"

e. The manual to be ordered is then referred to as containing everything the purchaser needs to lose weight, including:

"A section on rice and Chinese medicine."

7. The direct mail advertising piece of respondent (Compl. Ex. 3) makes substantially the same statements as the 1977 advertisement (Compl. Ex. 1; see FF No. 6).

8. It is apparent from the quotations from respondent's advertising materials that respondent makes the representations set forth in paragraph II (1) and (2) of the complaint and respondent admits this. While respondent does not state that the weight losses claimed in the testimonials and incorporated in the advertisements are "typical" the manner of their presentation is such that the ordinary reader whose situation fits a claim will believe that he too can attain this desirable result.

9. Respondent does not expressly state that rice has special properties which will cause the weight loss and reversals of health damage caused by certain disorders. But the reference to the diet as a "healing diet", to the startling character of the alleged discovery that the rice diet causes reversal of damage to health from certain disorders, the raising of the question of how the rice diet works and the reference to rice and Chinese medicine all point the reader of the advertisements to the idea that there is something special and exotically mysterious to rice that causes the favorable health and weight loss results of the rice diet. Hence, I find that respondent makes the representation alleged in paragraph II (3) of the complaint.

10. Respondent offers to purchasers two booklets: "The Rice Diet" and the same booklet plus extra menus, recipes and information. In the 1976 advertisement (Compl. Ex. 2) these were priced at $1.99 and $2.99 respectively but since then the price has gone up one dollar ($1.00) for each item (see Compl. Ex. 1, 3). The booklet in evidence is "The Rice Diet" (Compl. Ex. 8, Resp. Ex. 1).

11. a. "The Rice Diet", received as a result of the test purchase (Compl. Ex. 8), contains a general introduction, specifying the use of brown rice, cautioning against the adding of salt in cooking or at the table and warning the readers not to start the diet without checking with their doctors.

b. The introduction attributes many contemporary ailments of the heart and bowels to the loss of fiber in the modern diet and asserts that many people did not suffer from these ailments until their diet changed to the American style.

c. Turning to obesity and weight loss the author of the booklet asserts that fewer calories are absorbed from foods high in fiber and that adoption of respondent's rice diet plan without reduction in food intake will "soon" result in weight losses of 14 pounds for a person weighing 130 pounds and up to 24 pounds for a person weighing 220 pounds or about 11%. A 20% reduction in food intake with the rice diet will "soon" result in a 25-30% weight loss. No fixed time periods for expected weight losses are given.

d. There follow five breakfast and luncheon and seven dinner menus with attendant recipes, including brown rice fried in vegetable oil and meats cooked in butter, diced ham, Chinese mixed vegetables, fried ham, broiled pork chops and other meats, vegetables and fruits in addition to rice.

e. After these menus the author of the pamphlet seeks to mystify his readers by tying the good results of rice dieting to Chinese philosophical concepts, classifying foods according to "the ethereal qualities of Ying and Yang".

f. There follow further menus and a "plug" for walking for exercise, for "The Longevity Research Institute" in Santa Barbara, CA and for "before and after" photos of users who lost more than 75 pounds on the rice diet and for which respondent will pay $200.

12. The new Rice Diet pamphlet (Resp. Ex. 1) does not make material changes in the prior one (T 105). The introduction is, however, cut substantially and omits the advice to consult one's doctor before starting the diet and the table of weight losses "soon" to be attained. Frying in a teflon pan is substituted for the use of vegetable oil in the fried rice recipe (see T 105). At the very end there is now a recommendation to take HUNGREX to suppress hunger pangs if the dieters have difficulty to keep to their diet.

13. Complainant called as its expert medical witness an Atlanta physician with over 20 years of medical practice who treats primarily patients with metabolic problems, such as those suffering from obesity, diabetes and hypertension (T 11-12). He is active in professional societies in his field and has been elected to office therein (T 12).

14. a. The witness testified that obesity is caused by an excessive intake of calories over energy spent which creates body fat and increases the body's girth (T 13) and that obesity was associated with such diseases as high blood pressure and diabetes (T 14). To treat obesity the physician should assess the patient's ideal weight, determine the amount of weight to be lost nd the required reduction in caloric intake and then design a balanced diet to attain the goal to set (T 15-16). He explained that the rate of weight loss attained is independent of the starting weight (T 53) and that the ideal weight depends on the patient's height and build (T 17).

b. The witness had reviewed respondent's rice diet pamphlet (T 18) and determined that a selection of menus therefrom for each meal would provide an average caloric intake of about 1,000 calories (ibid.).

c. (i) He doubted that the big weight losses advertised by respondent could be attained. A weight loss of 80 pounds in 19 weeks would mean reducing daily caloric intake by 2,000 calories. Unless the patient, therefor, had had previously a very high caloric intake of about 3,000 calories, respondent's 1,000 calorie diet would not result in the needed reduction of caloric intake and the corresponding weight loss (T 26-28).

(ii) He also testified that a weight loss of 35 pounds in 5 to 6 weeks approached the theoretical limit and that only few people could attain this goal (T 30), that is, if they could stand a daily caloric deficit of 2,000 calories (T 30, 59-60). The ordinary diet contains, however, only from 1600 to 2400 calories (T 28, 60).

(iii) Weight losses of 10 pounds in two weeks are reasonably attainable, especially since at the beginning of a dietary period of caloric deficit a good deal of fluid is lost quickly (T 30-31, 56).

d. Testifying on the effect of the rice diet on the damage suffered by a person from the various ailments named by respondent in its advertisements the witness stated:

(i) a. Diseases of the blood vessels can be due to degenerative or immunological causes, such as inflammations (T 33). Some are treated by lowering the cholesterol or fat level, others by other means, such as the use of cytotoxic agents. In the event of diabetes, the deposition of substances in the walls of the blood vessels is controlled by lowering the blood sugar level (T 34). All such diseases require, however, individual treatment (ibid.).

b. The rice diet will not reverse damage from blood vessel disorders and has no special properties from which one might expect this result (T 35, 63). Indeed, the rice diet, as set forth in respondent's pamphlet, includes foods containing too much cholesterol, salt and fat (T 36-7, 39, 48-51). A truly low cholesterol diet would help in arresting atherosclerosis but not other blood vessel diseases mentioned (T 38).

(ii) There are many eye diseases, such as cataracts and those weaknesses correctible by eyeglasses, which have nothing to do with the diet of the patient (T 41). Other eye ailments are connected with diabetes or blood vessel diseases, such as hypertension. In case of hypertension, a low salt, fat and cholesterol diet would be helpful but respondent's rice diet is insufficient to this end (see (i)b., supra) nor would it reverse damage to the eyes in such cases (T 41, 63).

(iii) Referring to diseases of the heart the witness testified that, insofar as they were caused by diabetes, there was no known treatment (T 42) or reversal of damage by diet (T 65). Where the heart became enlarged and strained due to hypertension, however, the observation by the patient of the rice diet would result in loss of weight and such weight loss, in turn, would reduce high blood pressure and the size of the heart (T 42, 43). In that case the diet must be followed for 6 to 12 months (T 117). There is, however, nothing special in the rice diet which brings about this result and any other low fat and low salt reducing diet would achieve the same result (T 43). The use of rice in the diet is helpful because it is low in salt compared to bread, although not to other starchy foods, such as potatoes (T 44).

(iv) Degenerative kidney diseases, impairing the function of the kidney, when resulting from diabetes or hypertension, may require for treatment a low protein diet but depending on medical indicia may require either a high or a low salt diet (T 46). Only individual medical examination of each patient can determine which is indicated (ibid.).

e. According to the witness rice contains no special ingredient or component which makes it a useful vehicle for weight losing diets in cases of obesity or where weight loss and low salt and cholesterol content of the food intake are otherwise indicated (T 45, 46). As to the insufficiencies of respondent's rice diet as a true low cholesterol, fat and salt diet see d(ii)b., supra; see also especially on cross-examination T 48-51 (diet includes whole wheat toast, diced ham, skimmed milk, cottage cheese, fried ham, high in salt and veal MARENGO high in salt, fat and cholesterol, all taken from Compl. Ex. 8 and Resp. Ex. 1).

15. Respondent called as its expert witness the Director of Dietetics at Atlanta West Hospital (T 67). From an earlier position at Georgia Baptist Hospital she was familiar with planning diets for overweight patients in the cardiac unit (T 69) and in her present position she supervises all diet planning for in- and out-patients at Atlanta West (T 70).

16. a. She, too, analyzed the rice diet and she, too, concluded that representative selections of meals yielded a 1,000 calorie daily diet. She found the diet low in fat, moderately high in carbohydrates and adequate in protein (T 71-73), amino-acids and vitamin B (T 74). She considered the diet moderately low in salt (ca. 1900 mg) (T 73) as against a normal salt content of 3000 mg and more and a 250-1500 mg salt content for a low salt diet, as recommended by the Heart Association (T 73). She found respondent's rice diet nutritionally adequate and had observed more restrictive types of rice diets in the hospital (T 78).

b. She considered all weight losses represented in respondent's advertisements as possible, dependent on the sex and activity level of the individual and the caloric deficit incurred by him or her (T 80, 81). Because of initial high water loss in weight reduction she considered shorter term high weight losses more likely than longer term ones (T 88).

c. The witness also made it clear (T 81 in fine, 82 et seq.) that there was no special property or "magic" quality in rice which leads to a preference for a rice diet. However, as a practical matter, brown rice has a higher fiber content than other grain products nd high caloric content, has not had vitamins removed from it, and is nonallergenic (T 82); most people do not have an allergy against rice.

17. The president of Diet Research, Inc. testified that upon becoming interested in the rice diet after hearing a lecture (T 103) he read the studies of the Walter Kempner Foundation and of The Longevity Research Institute which use and deal with rice diets similar to those of respondent (T 104). Complainant's medical expert witness was familiar with the former but not the latter (T 118) and testified that the Kempner Foundation studies supported the views which he himself had stated (T 117).

18. There is no question on the record before me that the rice diet presented by respondent to purchasers of its booklet is a reasonably safe reducing diet. However, the question in this proceeding, as in numerous other 39 USC 3005 proceedings, is not the soundness or usefulness of a product but whether excessive advertising claims are falsely made for it.

19. On the detailed findings of fact, made hereinabove, and the record as a whole I find:

a. The representations made by respondent, as alleged in paragraph II (1) of the complaint, are false. While in the case of certain cardio-vascular diseases there is a reversal of the increase in the heart this special case does not warrant the broad claim made by respondent that following its Rice Diet achieves that result either in the specific situation or for heart disorders generally. The evidence adduced by complainant establishes that neither the damage caused by all heart disorders nor the damage caused by kidney, eye and blood vessel disorders is reversed by following respondent's Rice Diet. In fact its salt, cholesterol and fat content are too great to attain these specific medical results even where another diet might.

b. Respondent's representations, as alleged in paragraph II (2)(a) and (b) of the complaint, are false. The record establishes that those who need or want to lose either 80 or 35 pounds cannot do so in the 19 or 5 to 6 week periods advertised. Such result cannot be anticipated as a regular or typical consequence from following respondent's Rice Diet.

c. The record establishes beyond doubt that rice has no special or magic or mysterious quality which contributes to the effects of the rice diet on the body. Since respondent has been found to make the contrary representation it follows that its representation, as alleged in paragraph II (3) of the complaint, is false.

20. Respondent's representations are also materially false since they relate to the qualities of its product which induce purchasers to buy it.

21. The representation alleged in paragraph II (2)(c) of the complaint is on the record not show to be false.

CONCLUSIONS OF LAW

1. In its advertisements as the ordinary reader grasps their content respondent makes the representations alleged in paragraph II (1) through (3) of the complaint. Donaldson v. Read Magazine, 333 U.S. 178 (1948).

2. Respondent is engaged in a scheme or device to obtain money through the mails by means of false representations (Compl., par. II (1), (2)(a) and (b), (3)) contrary to 39 USC 3005.

3. However, as to the representations alleged in paragraph II (2)(c) and (4) of the complaint this proceeding should be dismissed.

4. Accordingly, an order as provided in 39 USC 3005 and in the form annexed hereto should be issued.