In the Matter of the Complaint Against DAVINOL PRODUCTS, Box 530-745 at Miami Shores, FL 33153 P.S. Docket No. 7/22 June 7, 1979 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: Sandra C. McFeeley, Esq. Consumer Protection Office Law Department U. S. Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: Lewis W. Miles II, Esq. The Plaza Building, Suite 328 245 Southwest First Street Miami, FL 33131
A Complaint filed by Complainant on February 21, 1979 charges respondent with 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.
Respondent filed an answer to the Complaint denying the material allegations therein.
At respondent's request the hearing was held in Miami, Florida on April 10, 1979. Both parties appeared and offered evidence. Each party has filed proposed findings of fact and conclusions of law.
1. Based on the stipulation of the parties (Tr. 5) and Complainant's exhibits CX-1 thru CX-4(b) I find that respondent is engaged in a scheme for obtaining money or property through the mails in connection with products called Davinol Tabletts, Davinol Tabletts and Method, and Vi-Vita-Mins.
2. The Complaint alleges that by means of advertisements respondent makes certain representations concerning DAVINOL TABLETTS and DAVINOL TABLETTS and METHOD calculated to induce readers thereof to remit money or property through the mails. These allegations are set forth below (underscored) followed by reference to portions of the advertisements upon which I base findings that respondent makes the representations alleged:
(a) That DAVINOL TABLETS will burn fat and carbohydrates stored in the body.
This representation is found to be made expressly or by clear implication in the following portions of respondent's advertising:
CX-1: THIS IS MY MIRACULOUS TABLETT
(Drawing of tablet)
Your ultimate answer . . . "DAVINOL"
* * *
NO HARMFUL EXERCISES . . . NO EXTRA WILL POWER NEEDED . .
. NO STRENUOUS DIETS
* * *
"I discovered with my "DAVINOL" plan and "miraculous
tablett: it helped BURN UP THE EXTRA FAT and
CARBOHYDRATES the body had been storing up
AN ABSOLUTE WONDER
"Miracle" ingredients go to work on your body functions
the very same day. Yes]] from the very first instant you
start to use "Davinol" you will be seeing AMAZING
RESULTS]]]
* * *
It is simple to use the "Davinol Tablett" formula.
HERE'S HOW: All I do is take ONE BEFORE BREAKFAST, ONE
BEFORE LUNCH and a tablett BEFORE DINNER . . . THAT'S ALL
. . . THE "DAVINOL" METHOD DOES THE REST. . .
* * *
"DAVINOL" . . . contains ingredients needed to "BURN" UP
FATS . . .
CX-2 The "miracle ingredients in 'Davinol' goes to work on
your body functions, - - - - - the very same day
* * *
With my 'Davinol Tablett Method' - - - - - - we keep
burning up our food even at rest therefore . . . you
REDUCE WHILE YOU SLEEP]
(b) That the use of the DAVINOL TABLETS and METHOD will lose weight without strenuous dieting
This representation is found to be made expressly or by clear implication in the following portions of respondent's advertisements:
CX-1:
. . . NO STRENUOUS DIETS]
* * *
AT LAST LOSE 15, 25, 50 OR EVEN 100 POUNDS OF EXCESS
WEIGHT WITHOUT STARVATION DIETS . . .
CX-2:
NO HARMFUL DIETS]
(c) That DAVINOL TABLETS provide more calcium than milk and more protein than meat
This representation is found to be made expressly or by clear implication in the following portions of respondent's advertisements:
CX-1:
. . . "DAVINOL" . . . is a source that gives more calcium
than milk; more protein than meat . . .
CX-2:
. . . The "miracle" ingredients in 'Davinol Tabletts' is
a source that contains more calcium than milk and more
protein than meat . . .
(d) That the user of the DAVINOL TABLETS AND METHOD may expect weight loss of approximately 10 pounds per week for three weeks and approximately 4 pounds per week for 15 weeks thereafter.
This representation is found to be made expressly or by clear implication in the following portions of respondent's advertisements:
CX-1: LOSE . . . AS MUCH AS . . . 30 POUNDS OF UGLY,
DANGEROUS FAT, IN JUST 21 DAYS*]]]
*YES ]]] LOST 30 POUNDS IN THE FIRST THREE WEEKS and then
went on to lose another 30 pounds in the next two months,
then on my doctor's advice I lost another 30 pounds in
the next two months . . . A TOTAL OF 90 POUNDS IN LESS
THAN 5 MONTHS ]]]
CX-2: (This advertisement contains wording relating to
weight loss almost identical to that in CX-1).
by respondent as package inserts respondent makes certain representations concerning VI-VITA-MINS calculated to induce readers thereof to remit money or property through the mails. These allegations are as follows:
a) To prevent or reduce excess body fat;
b) To prevent fatigue;
c) To create a feeling of well being in the user;
d) To prevent wrinkling and drying of skin;
e) To prevent tension and cramps;
f) To give the user mental vigor and self confidence;
g) To aid digestion by converting food into red blood cells.
4. I find that the representations concerning VI-VITA-MINS alleged in the Complaint are expressly made on the next to last page of respondent's DAVINOL METHOD booklet (RX-1).
5. The ingredients of each DAVINOL tablet listed on the label thereof are as follows:
Vitamin B-6 3.5 mg
Kelp supplying Iodine 0.025 mg
Lecithin 100 mg
In a base containing Cider Vinegar and inert excipients.
6. Dr. Vincent F. Cordaro, a well-qualified doctor of medicine, testified for Complainant. According to Dr. Cordaro obesity is an excess accumulation of fat caused by overeating in 95 percent of obesity cases (Tr. 12, 14). Obesity is generally treated medically by diet tailored to the individual needs of the patient following the taking of a complete medical history, laboratory tests and physical examination (Tr. 15, 16). Successful treatment usually involves repeated office visits (Tr. 16).
7. Dr. Cordaro further testified that exercise does not play a major part in a weight reduction program because burning of a significant quantity of calories requires a large amount of exercise (Tr. 16, 17).
8. Successful permanent weight loss generally requires behavior modification (Tr. 19). A medically acceptable weight loss program generally involves a loss of about 2 pounds per week (Tr. 19).
9. In filling orders for the DAVINOL TABLETT METHOD, respondent includes a diet described by Dr. Cordaro as a strenuous 1000 - 1200 calorie per day diet (Tr. 34, 43, 44). Also included is an exercise program described by Dr. Cordaro as strenuous if followed to completion (Tr. 32, 42, 43).
10. Dr. Cordaro stated that he did not know the quantity of calcium in each tablet. He testified that the only protein present would be in the lecithin but did not testify as to the quantity thereof in each tablet.
11. In Dr. Cordaro's opinion the ingredients of the DAVINOL TABLETTS taken individually or in combination would not burn fat or carbohydrates stored in the body (Tr. 31), and would have no effect on weight loss or weight control (Tr. 26). In his opinion the DAVINOL TABLETTS taken in conjunction with the diet would make no contribution to weight loss (Tr. 26, 27). Further, in Dr. Cordaro's opinion, the user of DAVINOL TABLETTS who also followed the diet and exercise program could not expect to achieve the weight losses represented by respondent as alleged in Paragraph III (d) of the Complaint (Tr. 34). A person who followed the diet might lose as much as 2 1/2 pounds per week but loss of 10 pounds in a week would be impossible (Tr. 35, 36). In Dr. Cordaro's opinion the user of DAVINOL TABLETTS and METHOD could not lose weight without strenuous dieting (Tr. 31, 32).
12. The ingredients of the VI-VITA-MINS tablets as listed on the label thereof are as follows:
Vitamin A 10,000 USP units
Vitamin D 400 USP units
Vitamin B-1 10 mg
Vitamin B-2 10 mg
Vitamin B-6 5 mg
Vitamin B-12 (act. conc) 5 mcg
Niacinamide 100 mg
Vitamin C 200 mg
Vitamin E 15 Int. units
d-Calcium Pantothenate 20 mg
Iodine 0.15 mg
Iron 12 mg
Copper 2 mg
Manganese 1 mg
Magnesium 65 mg
Zinc 1.5 mg
13. Dr. Cordaro expressed the opinion that VI-VITA-MINS tablets will do none of the things represented by respondent as alleged in Paragraph V of the Complaint except for subparagraphs c, f and g thereof in rare cases of severe vitamin or iron deficiencies (Tr. 37, 38).
14. Dr. Cordaro's opinions as expressed in his testimony are in accordance with the consensus of informed medical and scientific opinion (Tr. 38, 39).
15. The stipulated testimony of respondent's expert witness, Dr. Lee Alan Bricker, does not controvert the testimony and opinion of Dr. Cordaro in any substantial respect.
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. 461 (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 Paragraphs III and V of the Complaint.
3. Respondent has not established the falsity of the representation set forth in Paragraph III c of the Complaint. However, based on the testimony of Complainant's witness, Dr. Cordaro, I find that all other representations set forth in Paragraphs III and V of the Complaint are false in fact.
4. Respondent argues that Complainant has not proved that the falsity of any of the representations is substantial and material so as to warrant stopping respondent's mail. Respondent characterizes its representations as nothing more than mere exaggeration, puffing, or exuberance. But the representations alleged and found herein are obviously strong inducements for the purchaser to buy. As such they are certainly material and substantial. See F.T.C. v. Colgate Palmolive Co. , 380 U.S. 374, 387 (1965); Calhoun's Collectors Society, Inc. , P.S. Docket No. 5/24 (Initial Decision 12/21/76).
5. The effect of false representations is not dispelled by a money-back guarantee. Borg-Johnson Electronics v. Christenberry , supra.
6. Respondent is engaged in the conduct of a scheme for obtaining remittances of money through the mail by means of representations materially false in fact in violation of 39 U.S.C. 3005.
7. An order pursuant to 39 U.S.C. 3005 in the form attached should be issued.