In the Matter of the Complaint Against SLIMMER P. O. Box 5485 at Mobile, Alabama 36605 and SLIMMER and/or VANITY HOUSE, INC. 4601 Park Road at Mobile, Alabama 36605 P.S. Docket No. 5/175 02/23/78 Duvall, William A. APPEARANCES: Daniel S. Greenberg, Esq. Consumer Protection Office, Law Department, U. S. Postal Service Washington, D.C. 20260 for Complainant, Irving Silver, Esq. 812 Downtowner Boulevard, Mobile, Alabama 36608 for Respondents
This matter is before the undersigned on appeal by the Respondents herein, SLIMMER and VANITY HOUSE, INC., from the Initial Decision of Administrative Law Judge Rudolf Sobernheim who held that Respondents were 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 U.S. Code § 3005. The item being sold by Respondents through the mails is called the "Slimmer" and it is described in the Initial Decision as "a non-porous, tight-fitting garment covering the body from the lower thighs to the upper limits of the waist." This appeal, taken under § 952.25 of the applicable Rules of Practice, lists various exceptions to the Initial Decision which will be discussed later in this decision. In paragraphs II and III of the amended complaint on which this proceeding was tried, the Complainant Postal Service alleges that Respondents, through the use of an advertisement (Appendix A hereto), amek materially false representations, directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implication, as follows:
"(1) That the mere wearing of Respondent's 'Slimmer' will cause the user to lose 5-10 inches from the hips, stomach, waist, and thighs, in 4 days;
(2) That said girth loss will be due, i whole or in significant part, to loss of fat;
(3) That said girth loss will be due to a physiological change, rather than to the temporary mechanical girth loss caused by the constriction of the 'Slimmer';
(4) That said girth loss will last significantly longer than the temporary, mechanical girth loss caused by the construction of the 'Slimmer';
(5) That the wearing of the 'Slimmer' as directed makes a significant contribution over and above that of the exercise program in effecting the results charged in subparagraphs (1) - (4), supra;"
Respondents filed an answer to the original complaint, which answer was later treated as applicable to the amended complaint, denying all material allegations thereof and alleging (1) that the complaint failed to state a claim upon which relief could be granted and (2) that Complainant lacked standing to bring suit. Hearings were held on 15 and 29 July 1977 in Atlanta, Georgia, and Washington, D.C., respectively, at which both parties presented evidence. Briefs and proposed findings of fact and conclusions of law were received after the hearing on 26 September and 4 October 1977. The Initial Decision is dated December 6, 1977, and the last brief on this appeal was filed on February 9, 1978.
Before discussing the specific exceptions it must be noted that the keystone of Respondents' argument in support of the exceptions is indicated in the following statement:
"The principal error made by the Administrative Law Judge was in rejection of the expert testimony of Dr. A. W. Faris, Respondents' expert witness." (R.B., p. 2) 1/
Having read the entire transcript of the testimony and focusing on the education, training, practice and experience of the two experts, without wishing in any way to disparage the credential of Respondents' witness in his specialty, it is clear why Judge Sobernheim relied upon the testimony of the Complainant's witness in reaching his decision in this case. The Administrative Law Judge had the additional advantage of having the witnesses appear in person before him. There was no error in accepting, and according the greater weight to, the testimony of Complainant's expert witness, and the Respondents' assignment of error in this regard must be rejected. The exceptions will now be considered.
1. The finding that Respondents' advertisement contains the representations set forth in paragraph II of the amended complaint (F.F. 8).
With respect to this exception, reference is made to Appendix A wherein purchasers are promised inch losses and not just fluid or flesh displacement. In addition, stress is placed upon the capability of the "Slimmer" to "hold in" body heat to remove excess inches. The removal of 5-10 inches in four days must be due, at least in part, to lost weight or fat, or so the average reader of the advertisement would believe. These are benefits which the average reader would be led to believe flow from the mere wearing of the garment. To say that more inches will be lost by adding the performance of exercise to the wearing of the garment means that some inches will be lost simply by wearing the garment. A 5-10 inch girth loss in four days is a substantial reduction and one reasonably would conclude that such a reduction would be of a more than temporary duration because it would be expected that to restore the lost dimensions would require a significant period of time. Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948). The exception is disallowed.
2. The finding that "***additional energy output by wearing the 'Slimmer' for a short period after or during the exercises, while resting, cannot cause a substantial energy output" (F.F. 11). 2/
The witness for the Respondents stated that the energy expended by following the exercise for the 15-30 minute period required for its completion, which includes about 15 minutes of rest time, would total about 80 calories (Tr. 204). It would therefore be completely contrary to reason, and without support in the record, to assert, as Respondents'witness did, that the continued wearing of the garment for an additional 15-20 minutes while the body is at rest would produce any substantial energy expenditure. This exception is disallowed for the reason that the evidence will support no conclusion other than that stated in the Initial Decision.
3. The finding that "***the wearing of such (constraining) belts would cause temporary loss of girth***" but that "such effect would, however, be temporary and would last only between minutes to as long as four (4) hours" after the garment is removed; that wearing the "Slimmer" would scarcely interfere with the dissipation of any increased body heat; would require only negligible increase in the energy required to perform the exercises recommended by Respondents, and would not add any girth-reducing effect to that produced by performing the exercises; that wearing the "Slimmer" may cause a 5-10 inch girth loss in 4 days, but such loss would be only temporary and would not be the result of physiological change in fatty tissues; that Complainant's medical expert testified that his testimony represented the consensus of informed medical opinion (F.F. 15). This finding is completely supported by the credible testimony of Complainant's witness at pages 36-40 of the transcript of the hearing. This exception is disallowed.
4. The finding that Complainant's witness did not substantially contradict the underlying physiological theories of Respondents' witness, except that the former testified that the "Slimmer" exercises performed while wearing the garment were far from strenuous enough to produce the results to which
Respondents' expert's theories might lead (F.F. 16).
The reading of the transcript of the testimony in this case is convincing as to the validity of this finding. The exception is disallowed.
5. The finding that Respondents' witness was identified as an expert in exercise physiology, with a Ph.D. degree obtained in 1970 from Florida State University in Tallahassee, Florida; that his doctoral thesis related to the effect of physical training on physiological aging and that the witness presently is director of the Human Performance Laboratory of the Department of Health, Physical Education and Recreation at the University of South Alabama; that exercise physiology is concerned with the effect of work, in the sense of performance of exercise, on the body, and athletics are its primary concern; that the effect of such work is measured in terms of the expenditure of oxygen in liters and not in terms of calorie expenditure (F.F. 17).
The reason and the basis for this exception are not clear because the finding is simply an accurate summary of part of the testimony of the Respondents' witness (Tr. 111, 112, 132, 244, 257, 258). The exception is disallowed.
6. The finding that Respondents' witness placed greater emphasis on the rapid initial loss of water, particularly in the first week of exercising while wearing the "Slimmer," and he considered the consequent girth loss of 5-10 inches in four days to be due to physiological change; that the views of Respondents' witness were based on studies cited in a basic physiology text, but the only test he could recall was one in which subjects stood for two hours in a sauna; that Respondents' witness recalled a study at Ohio State University in which subjects lost a lot of weight by wearing football uniforms, but he had no data from the physiological literature concerning the effect of wearing a "Slimmer" type garment while performing 15 to 30 minutes of light calisthenics as under the "Slimmer Plan"; that the witness performed tests between June 5-8, 1977, on two groups of five persons of varied age, weight and height, who performed the exercises with one group wearing the garment and with the other group not wearing the garment; that in addition two subjects were tested on blood flow during the performance of the exercises; that in both tests the subjects wearing the "Slimmer" did slightly better in terms of blood flow or girth loss, but because so few people were involved in the tests no statistically valid conclusions could be drawn from the test result; that the wearing of the "Slimmer" might inject some sort of "morale" factor into the situation but the witness later stated that he did not know about this matter (F.F. 18).
This exception is disallowed for the reason stated in disallowing the exception to Finding of Fact 17 (Tr. 143-149, 154-157, 159-160, 163, 165A-168, 180, 182, 210-212).
7. That while the testimony of the expert witnesses is in agreement in many respects, one major point of difference is whether the girth loss under the "Slimmer" plan is due to temporary displacement of body fluids, as the Complainant's witness testified, or is due to "physiological change," as it was called by Respondents' witness; a review of the qualifications of Complainant's expert witness and the conclusion that the testimony of this witness is entitled to be and was accepted; a review of the qualifications of Respondents' expert witness and a statement by the Administrative Law Judge of the reasons why the opinions of this witness are not accepted (F.F. 19).
Having previously ruled that the Administrative Law Judge properly relied primarily upon the testimony of Complainant's expert witness, this exception is disallowed.
8. The finding that any girth loss that may result from the "Slimmer" plan is not the result of physiological change in the subject's body within the meaning of this record (F.F. 20).
This exception is disallowed for the reason stated as the basis for the disallowance of the exception to Finding of Fact 19.
9. The finding that Respondents make certain specific false representations which encompass the representations alleged to be false in paragraph II of the complaint (F.F. 21).
Consideration of Respondents' advertisements in conjunction with the criteria established in Donaldson v. Read Magazine, supra, requires the disallowance of the exception to the Finding of Fact.
Exceptions were taken, also, to the following Conclusions of Law:
1. That Respondents are 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 U.S. Code 3005 (C.L. 3);
2. That Respondents' advertisements represent, whether directly or by implication, that the girth loss following wearing the "Slimmer" is one of extended duration and that wearing the "Slimmer" is an effective cause of, or effectively contributes to, the advertised girth loss over and above the performance of exercises, and they will be so understood by the ordinary reader (C.L. 4); and
3. That an order as provided in 39 U.S. Code 3005 should be issued against Respondents.
The findings of fact of the Initial Decision have been sustained.
These findings of fact lead inevitably to the conclusions of law reached by the Administrative Law Judge and those conclusions are sustained.
The only remaining point of significance raised by Respondents is the assertion that this case presents a situation comparable to that found in American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902) and described in Reilly v. Pinkus, 339 U.S. 269 (1949) as being one in which "knowledge has not yet been crystallized in the crucible of experience," and, hence, no decision may be reached in the face of conflicting competent medical expert testimony. In support of this argument, Respondents rely upon Voinsinent v. Coglianise, 455 F.2d 1064 (1972) and Collins v. Richardson, 356 F.Supp. 1370 (E.D. Tenn., 1972). In Voinsinent the court said that "Opinion testimony by an expert witness does not establish any material fact as a matter of law, and an administrative agency is not bound to accept such testimony as conclusions, but may reject it in favor of other evidence." The court in Collins said "Opinion evidence addressed to a statutory agency, even if entitled to some weight, has no such conclusive force that there is an error in law in the agency's refusing to follow it." The court pointed out, further, that there are situations involving the credibility of statements by expert witnesses.
In the instant matter, Respondents' witness stated that the laboratory with which he is associated does not "deal with obese people" (Tr. 242) and that he does not otherwise deal with or treat them. Complainant's witness, on the other hand, is a practicing physician in Atlanta, Georgia, specializing in diabetis and endocrinology. He testified that from 5 to 10 percent of his patients come to him solely because they wish to lose girth and weight. Thus, on the basis of experience, the testimony of Complainant's witness is entitled to greater weight than is the testimony of Respondents' witness.
Concerning the effectiveness of Respondents' exercise program, the testimony of Respondents' witness reflected confusion as to the caloric expenditure that would result from performing that program. At first he stated that the following of Respondents' program for approximately 30 minutes (of which only about 15 minutes would be devoted to actual exercise) would produce a loss of several thousand calories. Later, he conceded that the maximum expenditure from taking these exercises would be no more than 80 calories per day, which would produce a weight loss of less than one-fourth of a pound (Tr. 204). No such uncertainty occurred in the testimony of Complainant's expert witness.
In the practice of his profession Respondents' witness does not employ the calorie as the typical standard by which to measure energy expenditure (Tr. 244). The calorie, however, was the standard of measurement in which attention was focused at the hearing because of the emphasis placed in Respondents' advertisement on the lack of need for a diet. In the practice of his profession and in his testimony, the calorie is the standard of measure of energy expenditure used by Complainant's witness, who, by virtue of his experience, gave testimony that was entitled to greater weight in this matter.
Finally, Respondents sought to support their position in this case by means of tests conducted by their expert witness - one test to determine the extent to which the wearing of the garment affected the flow of blood in the body, and the other test to determine the extent to which the wearing of the garment produced a reduction of girth in the wearer's hips, thighs, stomach and waist. With respect to the former test, Respondents' expert stated that he tested only two people and he, therefore, could draw no conclusions from that test (Tr. 163). The second test, according to Respondents' expert, was of such character that it has no statistical significance (Tr. 211). From what has been said heretofore it is apparent that in reality this case does not fall within the area of the McAnnulty case. And even if it did, Voinsinent and Collins would by no means require a decision in favor of Respondents. Here, as in Pinkus, there is some slight conflict in the evidence, but there is an abundance of substantial evidence to support the findings that (1) the efficacy of the "Slimmer" is misrepresented in Respondents'advertising; (2) the misrepresentations go beyond mere "puffing"; and (3) these misrepresentations are material and they are of such character that credulous persons, eager to have what they conceive to be a better, more attractive figure, could, and probably would, rely. Donaldson v. Read, supra.
The foregoing determinations are reached by applying the usual criteria, and by employing the usual tools, used in any trial to winnow the evidence to separate the unacceptable from the acceptable.
In the light of all of the foregoing considerations, the Initial Decision is correct and it is sustained. A mail stop order will be issued against these Respondents.
02/23/78
Duvall, William A.