In the Matter of the Complaint Against DAVINOL PRODUCTS Box 530-745 at Miami Shores, FL 33153 P.S. Docket No. 7/22; 12/18/80 Cohen, James A. APPEARANCE FOR COMPLAINANT: Sandr a C. McFeeley, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Lewis M. Miles II, Esq. The Plaza Building, Suite 238 245 S.E. First Street Miami, FL 33131
Prior proceedings in this matter led to the issuance of Mail Stop Order No. 79-63 dated November 14, 1979, against mail addressed to Davinol Products, Box 530-745, Miami Shores, Florida 33153, with respect to the sale of Davinol Tablets and Method and VI-VITA-MIN Tablets.
On September 24, 1980, Complainant filed a Petition for Supplemental Order with attachments, alleging Respondent is evading or attempting to evade Mail Stop Order No. 79-63 by conducting the same scheme at new addresses. The new addresses at which the petition alleges the same scheme is being conducted and against which the supplemental order is requested to be issued are:
Davinol Products, Inc.
P. O. Box 400
Bronx, NY 10467
P. O. Box 15967
Plantation, FL 33318
Box 530-745
535 Fifth Avenue
New York, NY 10017
P. O. Box 38-1692
Miami, FL 33138
By notice dated September 25, 1980, Respondent was notified that if it intended to oppose the petition it could file its answer no later than 10 calendar days from the date of receipt of the petition. Respondent's reply, received October 9, 1980, opposes the issuance of the petition for supplemental order an dincludes a request for a hearing in Miami, Florida. Complainant thereafter filed a response opposing Respondent's request for hearing. Respondent's request for a hearing is addressed first.
Respondent alleges that it made a good faith attempt to comply with the Postal Service Decision in this case and that a hearing should be held in order to allow it to present the testimony of Lee Alan Bricker, M.D. as it pertains to the new advertisements and the new accompanying booklet. According to Respondent the alterations in its advertising representations constitute a new and different advertisement and the enforcement procedure should be tested anew.
While it is not altogether clear it appears from Respondent's reply and the previously stipulated testimony of Dr. Bricker that, if a hearing were to be held in connection with the petition for supplemental orde,r Dr. Bricker's testimony would relate to the truth or falsity of the representations contained in Respondent's advertising (Tr. 49-52). Such testimony does not pertain to the issues in controversy. The issues to be decided in connection with a petition for supplemental order are: (1) whether essentially the same products are being sold through the mail; (2) whether essentially the same false representations are continuing; and (3) whether the parties are the same. Respondent does not deny that the parties and the product are the same as those subject to the mail stop order. It does, however, deny that the representations are the same. Therefore, the issue for consideration in connection with the petition filed in this case is whether Respondent continues to make the representations which were previously found to be false. The testimony of Dr. Bricker would provide no assistance in the determination of this issue. Therefore, under 39 C.F.R. § 952.30 Respondent has not shown good cause for a hearing to be held.
Complainant alleges that the representations made in Respondent's advertising are substantially the same as those which were the subject of the prior proceeding. Respondent argues that the advertisements have been changed significantly by making reference to the first person singular, and explicitly referring to the overall "method" as the source of weight loss as opposed to the "tablett." This, it is alleged, was done in an attempt to comply with the Initial and Postal Service Decisions.
The allegations of the complaint which were found to be false in the Initial Decision and which Complainant alleges are perpetuated in Respondent's advertising forming the basis for the petition are:
"a) That DAVINOL TABLETS will burn fat and carbohydrates stored in the body;
"b) That the user of the DAVINOL TABLETS and METHOD will lose weight without strenuous dieting;
"c) ....*/
"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."
The language used in Respondent's current advertisements which, either alone or when read in the context of the remainder of the advertisements, continues to make the representations alleged in the complaint and found to be false in the Initial and Postal Service Decisions is quoted below under each allegation of the complaint:
"(a) That DAVINOL TABLETS will burn fat and carbohydrates stored in the body."
"'MY 'MIRACULOUS' DAVINOL TABLETT METHOD
(Drawing of bottl eof tablets)'
(Ex. 5, 6, 7)
"'NO STRENUOUS EXERCISE ... NO EXTRA WILL
POWER NEEDED ... NO FASTING DIETS ...'
(Ex. 5, 6, 7)
"'With my 'Davinol Tablett Method' ... we
keep burning up our food even at rest,
therefore, you also ... REDUCE WHILE YOU
SLEEP]]]]'
(Ex. 5, 6, 7)
"' ... I've never been able to eat so many
'fatty' foods on any diet and lose weight.
Your plan is absolutely the greatest]]]'
(eX. 5, 6, 7)
"'The components of the method go to work
for all ... men & women ... in normal health,
on their body functions ... the very same
day.'
(Ex. 5, 6, 7
"'It was so simple and easy to do. All I
did was take 1 'Tablett' before each meal
to form good habits ... that's all ...
following the 'Davinol Method' does the
rest]]]'
(Ex. 5, 6, 7
"'It keeps burning up calories, even at rest]]'
(Ex. 5, 6, 7
"'I felt reborn ... fat just seemed to 'squeeze'
out of my body.'
(Ex. 5, 6, 7
"'Davinol Method helps to burn up stored body
fat.'
(Ex. 8
"'Lose up to 30 pounds of ugly, dangerous
fat ... In just 21 days]]]'
(Ex. 5, 6, 7
"'With 'Davinol' ... men ... & ... women ...
can lose ugly fat, not just water weight]]]'
(Ex. 5, 6, 7
"ABOUT MY 'MIRACULOUS TABLETT'"
(Ex. 5, 6
"(b) That the use of the DAVINOL TABLETS and METHOD will lose weight without strenuous dieting."
"No extra will power needed ... No fasting
diets"
(Ex. 5, 6, 7
"My fat seemed to disappear ... just taking
my 'Davinol Tabletts' and following my simple,
and enjoyable, method."
(Ex. 5, 6, 7
"It was so simple and easy to do. All I did
was take 1 'Tablett' before each meal ...
the Davinol Method does the rest. No ...
harmful diets."
(Ex. 5, 6, 7
"No twisting devices ... stretch garments ...
sweat suits or harmful diets.
(Ex. 5, 6, 7
"Definite loss of ... 15, 25, 50 or even up to 100
pounds can now be accomplished]"
(Ex. 5, 6, 7
"(d) That the user of 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."
"Lose Up To 30 Pounds of Ugly Dangerous
Fat, In Just 21 Days.
(Ex. 5, 6, 7
"Yes]]] I Lost 30 Pounds In The First Three
Weeks went on to lose another 30 pounds in
the next two months. On my doctor's advice
I lost another 30 pounds the next two months
... A Total of 90 Pounds In Less Than 155
Days]]"
(Ex. 5, 6, 7
Portions of the quoted language are similar, if not virtually identical, to the language which was found in the Initial Decision and the Postal Service Decision as making the representations alleged to be false. While Respondent makes more frequent references to a "method" in its revised advertisements, the principal emphasis of its advertisements continues to be the efficacy of its tablets. Moreover, as previously found, the method referred to is precisely what the advertisements promised it would not be - strenuous exercise and fasting diet. The use of the first person singular and purchaser endorsements does not change the overall effect of Respondent's advertising. Further, while references to burning carbohydrates have been deleted, the references to burning fat remain. By the language quoted from
Respondent's advertisements, together with the remainder of the language in the advertisements, Respondent continues to make the representations alleged in paragraphs III(a), (b) and (d) of the Complaint.
Accordingly, it is concluded that Respondent is evading or attempting to evade the provisions of Mail Stop order No. 79-63 by conducting the scheme which is the subject of the order at different addresses. A supplemental mail stop order against Respondent at the addresses alleged in the Petition is being issued contemporaneously with this decision.
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