In the Matter of the Complaint Against COSVETIC LABORATORIES, RIGHT PLACES, at Atlanta, Georgia P.S. Docket No. 6/32; 06/09/78 Cohen, James A.
This case is on appeal by Respondent from the Initial Decision of Administrative Law Judge Quentin E. Grant. In that decision Judge Grant recommended the issuance of a Mail Stop Order under the provisions of 39 U.S.C. Section 3005 based on his findings and conclusions that Respondent was engaged in conducting a scheme or device for obtaining money or property through the use of the mails by means of false representations within the meaning of the cited statute.
The Initial Decision found that the allegations of paragraph 3 of the complaint were made by Respondent's advertising and that they were materially false. Paragraph 3 charged that Respondent represented that:
"a. The use of the nutritional supplement, RIGHT PLACES, will cause the female breasts to become larger;
b. The use of RIGHT PLACES will produce a significant weight gain within two weeks;
c. RIGHT PLACES differs from ordinary foods in that it will build strong, firm muscle tissue rather than flabby fat tissues; and
d. RIGHT PLACES is a scientifically designed formulation which provides a nutritional protein not readily obtainable from ordinary foods."
Respondent takes exception to the findings pertaining to these allegations and, in addition, claims that the Initial Decision erroneously found that all Respondent's advertisements promised results within fourteen days. The exceptions taken by Respondent are considered in the order presented.
Respondent contends that the Administrative Law Judge in effect modified allegation 3(a) of the complaint by limiting his findings of fact to a two-week period and by adding the word "substantially" before the word "larger." According to Respondent the allegation as amended would read: "The use of the nutritional supplement RIGHT PLACES will, within two weeks cause the female breasts to become substantially larger."
The representations made by Respondent's advertisements must logically be evaluated in terms of some reasonable time frame and quantity of result. The two-week time period would certainly be a reasonable time period in which a person would expect to achieve the results advertised since many of Respondent's advertisements established two weeks as the period in which a satisfactory result was guaranteed. Moreover, the testimony adduced at the hearing was directed at a time frame of two-three weeks. Accordingly, the Administrative Law Judge was correct in considering this allegation in the context of a two-week period and the conclusions reached based upon the use of a two-week time frame are in accordance with the evidence presented.
The Administrative Law Judge did not add the word "substantially" to the allegations of the complaint. Rather, in determining whether the female breast would be enlarged as the result of the use of Respondent's product RIGHT PLACES, he determined that an increase that was "practically nil," viewed in light of the promises held out in the photographs of each advertisement, was a misrepresentation of a material fact. Such conclusion is reasonable, supported by the evidence presented, and in accordance with the allegations of the complaint which must be read as charging Respondent with advertising that its product would provide more than "practically nil" results.
Respondent seems to claim that the significance of the weight gain was not in issue and that the product should be considered with the "milk-shake" substance with which it is recommended that it be ingested. Respondent also claims that the product will achieve the results represented.
The issue of the significance of a weight gain is specifically raised by paragraph 3(b) of the complaint. The record establishes that the use of the new canned product */ RIGHT PLACES, without additional food supplementation over and above a person's regular diet, will produce a weight gain of 2/3's of a pound over a two-week period. The old canned product will produce less of a weight gain. Respondent's own expert witness testified that a significant short-term weight gain would be 1 pound. Thus, Respondent's own evidence establishes that the use of the canned product will not produce a significant weight gain within two weeks. When the effects of the exercise program are taken into consideration the weight gain of 2/3's of a pound is reduced to 1/2 pound over a two-week time period. Considering the exercise program as part of the product advertised, as the Initial Decision properly does, the total weight gain over a two-week period of time is not significant as the Initial Decision concludes.
The Initial Decision did not consider as part of the RIGHT PLACES product the "milk-shake" substance with which the canned product is to be taken. This conclusion was proper and supported by the evidence presented. Accordingly, it would not have been appropriate in considering weight gain to take into account the additional calories which would be ingested from the "milk-shake" substance.
Respondent alleges that the Administrative Law Judge amended the complaint by considering only the protein powder in connection with the allegations of paragraph 3(c) of the complaint. Although the product as advertised includes both a food supplement and an exercise program, the portion of the complaint which relates to a comparison of the product with ordinary foods, under any reasonable reading, could only be related to the canned product as opposed to the canned product and the exercise program. The exercise program would have the same effect whether the RIGHT PLACES canned product were ingested or ordinary foods eaten. The Initial Decision correctly concludes, based upon the record established, that the canned product contributes nothing to the building of firm muscle tissue that cannot be obtained from ordinary foods such as meat, milk and eggs.
Respondent's exception with regard to paragraph 3(d) of the complaint again views the Initial Decision of Administrative Law Judge Grant as having amended the allegations of the complaint by limiting the product RIGHT PLACES to the canned product only, and to introduce a cost factor into the comparison of the product with ordinary foods. Respondent also points out that there has been no showing that RIGHT PLACES is not a scientifically designed formulation as it represents in its advertisements.
The primary thrust of the Initial Decision insofar as it relates to paragraph 3(d) of the complaint is that the canned product does not provide nutritional protein not readily obtainable from ordinary foods. This conclusion is supported by the evidence presented. The decision does state that the same protein can be obtained at lower cost from ordinary foods. This finding, although correct as a matter of fact, is not necessary to the ultimate conclusion and therefore will not be discussed further. The Initial Decision does not make a finding as to whether the product is a scientifically designed formulation, but again, whether this is so is not determinative of whether this allegation of the complaint has been established.
The fact that the canned product has a higher ratio of protein to fat, as found in the Initial Decision, or that as Respondent contends the product is more easily digestible, does not detract from the finding that it doe not provide a nutritional protein not readily available from ordinary foods.
Respondent claims the Administrative Law Judge erred in finding all advertisements promise results within fourteen days. The Initial Decision contains no such finding. The two-week period was used to evaluate the result that would be achieved in connection with the allegations of paragraphs 3(a) and 3(b) of the complaint. This two-week time period was not considered in connection with the allegations of paragraphs 3(c) and 3(d).
It is true, as Respondent contends, that not all of the advertisements which are the subject of this complaint prescribe a fourteen-day period in which satisfaction is guaranteed. However, a majority of the advertisements do guarantee results within fourteen days. Where used in the Initial Decision this fourteen-day period is a reasonable period in which to evaluate the results of the use of Respondent's product in view of the representations in over half of the advertisements included in the record.
Respondent's exceptions to the Initial Decision are disallowed for the reasons stated herein and that decision is hereby affirmed. A Mail Stop Order is being issued contemporaneously with this decision under 39 U.S.C. Section 3005.
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