In the Matter of the Complaint Against COSVETIC LABORATORIES RIGHT PLACES at Atlanta, GA P.S. Docket No. 6/32 February 13, 1978 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: Thomas A. Ziebarth, Esq. Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Jack Paller, Esq. Katz, Paller & Land Atlanta, GA 30361
In a complaint filed on September 23, 1977, complainant alleged that respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of 39 U.S.C. 3005. Specifically, the complaint alleges that by means of advertising calculated to induce readers to remit money or property through the mails, respondent represents, directly or indirectly, in substance and effect, whether by affirmative statements, omissions, or implications 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."
Finally, the complaint alleges that such representations are materially false in fact.
Respondent filed an answer to the complaint denying all allegations of the complaint except for an admission that it places advertisements in magazines having general circulation as well as in direct mailing pieces.
At a hearing held in Atlanta, Georgia, on November 10, 1977 both parties presented evidence and after delays resulting from an incomplete transcript of the proceedings, as well as joint requests of the parties for time extensions for other reasons, they have filed proposed findings of fact and conclusions of law. The parties have effectively waived any claim of prejudice attributable to incompleteness of the transcript by filing their proposed findings and conclusions without asserting any such claim.
1. Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails (CX 1-15; see also Resp. proposed F of F Nos. 1 & 2).
2. Attention is attracted to such scheme or device by means of advertising calculated to induce readers thereof to remit money or property through the mails (CX 1-11; Ans. 2). Copies of typical examples of such advertising are attached hereto as Exhibits A through C.
3. A fair reading of respondent's advertising discloses that it makes the representations alleged in the complaint. Respondent's proposed findings of fact (No. 5) concur with this finding.
4. Based upon the high value our society places on physical appearance, I find that such representations are material.
5. The product, "RIGHT PLACES," consists of a can of powdered protein, vitamin, and mineral nutrients. The "old" formulation, shipped by respondent until about April 1977, contained per serving (2 level teaspoons) 45 calories, 10 grams of protein, 1 gram of carbohydrates, and no fat. The "new," or currently shipped, formulation contains per serving 80 calories, 9 grams of protein, 8 grams of carbohydrates, and 1 gram of fat (CX 12, 15).
6. Although not prominently mentioned in respondent's advertisement, a constituent part of the "RIGHT PLACES" program is a ten-minutes a day exercise program which the brochure (CX 17) furnished with the protein powder states must be followed religiously. Some of the prescribed exercises require weights and other exercise equipment not furnished by respondent.
7. Respondent contends that the product also consists of supplemental foods prepared as a milkshake with the protein powder pursuant to directions contained in an instruction booklet shipped with the product (CX 14). Nowhere in respondent's advertising do I find any reference to food supplements to be taken with the protein powder to achieve the promised results. In fact some of the advertisements (CX 1, 2, 3, for example) might well lead the ordinary reader to believe that no foods beyond her regular diet and the protein powder are required to achieve such results. The wording I refer to consists of such statements as:
"You see, you can't just stuff yourself with fatty foods to put on weight" (CX 3).
"Why can't you just stuff yourself with fatty foods to gain weight" Because tests have shown that is not the fastest way to add weight. In fact some weight loss diets work on that principle" (CX 2).
It is not until a purchaser receives the protein powder in the mail that she is first advised by respondent that she must also consume over 600 calories in other foods (fruit, milk, sugar, eggs) each day in addition to regular meals to achieve the promised results (CX 14).
Consequently, I find that the supplemental foods prescribed for the milkshake are not part of the product as advertised and are not to be considered in determining the truth or falsity of the representations made.
8. Ingestion of the protein powder alone will add 90 (old product) to 160 (new product) calories per day and, assuming the generally accepted concept that 3500 excess calories are required to produce a one pound weight gain, over a two week period such ingestion, with no reduction for calories burned in the exercise program, will produce a weight gain of 1/3 to 2/3 lb. assuming it is taken in addition to the regular diet. According to respondent's expert witness, Dr. Cooper, one pound is considered to be a significant short term weight gain (Tr. 101). Thus, according to Dr. Cooper's concept of a significant weight gain and the testimony of complainant's expert, Dr. Acosta (Tr. 22), the "RIGHT PLACES" protein powder taken over a two week period in the servings specified (4 tablespoons per day) will not cause a significant weight gain over a two week period. Accepting Dr. Cooper's testimony that the exercise program will expend up to 40 calories per day (560 calories in 14 days), the weight gain from ingestion of the new product would be less than 1/2 lb. in 14 days.
9. The major female fat depositories are the hips, breasts, and thighs in that order (Tr. 40, 91). For every one pound of fat deposited in the total body about 1/16, or 1 ounce, will be in the breasts (Tr. 93). Assuming a 1/3 to 2/3 lb. weight gain in two weeks from ingestion of "RIGHT PLACES," this would mean a gain of approximately 1/6 oz. to 1/3 oz. in each breast, certainly not a significant weight gain and certainly not approaching the magnitude of enlargement a purchaser would expect viewing the ample breasts shown in respondent's advertising. The gains mentioned in this finding are without reduction for calories expended in the exercise program (see F. of F. No. 8, supra ).
10. Accepting Dr. Cooper's testimony that the exercise part of the program alone would cause the breasts to become larger in appearance as the result of hypertrophy of the pectoral muscles (Tr. 89, 90), it is obvious that a weight gain of 1/6 oz. to 1/3 oz. in each breast due to ingestion of "RIGHT PLACES" over a two week period would contribute insignificantly to any actuality, or to any appearance, of enlargement.
11. The exercise program would tend to reduce the amount of fat deposited in the breasts by ingestion of "RIGHT PLACES" because it would burn up to 40 calories per day (Tr. 103).
12. The protein powder "RIGHT PLACES" differs from ordinary foods in that it contains a much higher ratio of protein to fat (Tr. 96, 97). However, the product does not provide nutritional protein not readily obtainable at a lower cost from ordinary foods (Tr. 29, 30; CX 20, 21). Further, when taken in conjunction with an exercise program, "RIGHT PLACES" contributes nothing to muscular hypertrophy or building of strong firm muscle tissue which would not be provided by ordinary foods, such as meat, milk and eggs (Tr. 28). It is the exercise, not the nature of the protein powder itself, which converts the nutrients to firm muscle tissue rather than flabby fat tissue. Exercise would produce the same result with the ingestion of ordinary foods (Tr. 28, 29).
1. The meaning of advertising representations is to be judged from a consideration of an advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine , 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer , 152 F. Supp. 451 (S.D.N.Y. 1957); Borg-Johnson Electronics v. Christenberry , 169 F. Supp. 746 (S.D.N.Y. 1959).
2. The average person reading respondent's advertisements would interpret them substantially as characterized in paragraph 3 of the complaint.
3. The product involved is the protein powder, "RIGHT PLACES" and the exercise program furnished with it.
4. Based on the foregoing Findings of Fact, I find that the representations alleged in the complaint are materially false in fact.
5. Although the evidence shows that ingestion of the product will cause some slight enlargement of the breasts, the enlargement is practically nil viewed in light of the substantial promise held out in the photograph in each advertisement. Therefore, I do not regard as significant in the context of the case the fact that the advertisements do not promise breast enlargement in terms of a specific number of inches. Certainly the ordinary reader is led to believe that enlargement in a two week period will exceed that which a 1/6 to 1/3 oz. weight gain from ingestion of the product will add. Although the exercise program may cause the breasts to appear to be larger, it does not produce actual enlargement of the breasts.
6. Respondent is engaged in the conduct of a scheme for obtaining money or property through the mails by means of representations materially false in fact.
7. An order pursuant to 39 U.S.C. 3005 in the form attached should be issued.