In the Matter of the Complaint Against AMERICAN HEALTH PRODUCTS, and FORMULA-12 P.O. Box 9669 at Atlanta, GA 30319 P.S. Docket No. 7/101; 01/02/80 Grant, Quentin E. APPEARANCE FOR COMPLAINANT: Dani el S. Greenberg, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENTS: Christopher S. Barnard, Esq. Katz, Paller & Land Room 2000 470 East Paces Ferry Road Atlanta, GA 30305
In a complaint filed October 23, 1979, Respondent is alleged to be in violation of 39 USC Section 3005 in conducting a scheme or device for obtaining money or property through the mails by means of false representations concerning its product, Formula-12.
Specifically Respondent is alleged to be falsely representing in advertisements soliciting orders for Formula-12 (Exhibits A and B attached hereto) that (a) ingestion of the product will eliminate cellulite that is already present; (b) ingestion of the product will prevent formation of cellulite.
Complainant asks for issuance against Respondent of an order pursuant to 39 U.S.C. Section 3005. Respondent's answer denies the allegations of the complaint. At the close of evidence, both parties presented proposed findings of fact and conclusions of law which are adopted to the extent indicated and are otherwise rejected as unsupported by or contrary to the evidence or because they are irrelevant or immaterial.
1. Based on Respondent's advertisements (Exhibits A and B attached to the complaint and to this decision) and stipulation of the parties, I find that Respondent is engaged in the conduct of a scheme to obtain money or property through the mails for its product, Formula-12, in tablet form.
2. Respondent's advertising makes express representations that ingestion of Formula-12 will eliminate cellulite that is already present and, by clear implication, the advertising also represents that ingestion of the product will prevent formulation of cellulite.
3. The ingredients of Formula-12 appear on its label (CX-1), a copy of which is annexed hereto as Exhibit C.
4. William R. Ayers, a highly qualified doctor of medicine, board-certified in the specialty of internal medicine, with special interest and experience in the control of obesity as director of the diet-management program at Georgetown University School of Medicine (CX-2), testified for Complainant.
According to the testimony of Dr. Ayers, as supported by Complainant's Exhibits 4 and 5, "cellulite" is a descriptive term for a surface appearance of the skin, ranging from an "orange-peel" to a "quilted-mattress" appearance, caused by accumulations of excess subcutaneous fat, generally stored in the thighs, buttocks and abdominal wall, appearing much more frequently in females than males (Tr. 7, 8, 11). This fat is no different physiologically from fat found elsewhere in the body (Tr. 12). In females it appears as bumps or protrusions on the surface of the skin, creating a dimpled or orange-skin effect. The dimpling effect is caused by fibrous tissue attached to the epidermis, and the protrusions are caused by subcutaneous fat (Tr. 11).
Cellulite is treated in the same manner as any other accumulation of excess fat -- that is, by reduction of caloric intake, or increase of energy demands on the body, or a combination thereof (Tr. 13, 14).
5. According to Dr. Ayers, vitamin C, iron and potassium have no relationship to mobilization of fat storage. The powdered extracts in the product as a group are probably a very mild diuretic, too mild to have an effect on any edema coexisting with excess fat (Tr. 16). Lecithin is a kind of fat with phosphorus as part of its chemical makeup. Kelp is a generic term used to describe a variety of seaweeds the ingredients of which are highly variable (Tr. 17).
6. In Dr. Ayers' opinion, the ingredients of the product, individually or in combination, taken as directed, would not be effective in eliminating or preventing cellulite (Tr. 19).
7. Based on Dr. Ayers assertion to that effect, I find that his opinions concerning the matters in issue here conform to the informed scientific and medical consensus, any opinions to the contrary constituting a very small percentage of medical opinion (Tr. 21, 22).
8. Based on Dr. Ayers' testimony, I find that the representations that ingestion of Formula-12 will eliminate and prevent cellulite are false in fact. Since the natural effect of those representations is to induce readers to purchase the product, I find that they are material.
1. The making of the representations alleged in the complaint is so clear from a pedestrian reading of Respondent's advertising that no independent proof thereof is required.
2. Medical opinion need not be based on tests of the product to constitute substantial evidence of the falsity of advertising claims.
3. Respondent is in violation of 39 U.S.C. Section 3005 by engaging in the conduct of a scheme for obtaining money or property through the mails by means of representations materially false in fact concerning its product, Formula-12 in tablet form.
4. An order pursuant to 39 U.S.C. Section 3005 should be issued against Respondent.
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