In the Matter of the Complaint Against

 CONTEMPORARY MISSION, INC.
 Publishing Division
 285A Saugatuck Avenue at
 Westport, CT 06880

 P.S. Docket No. 8/159;  
 
 11/26/80
 
 Grant, Quentin E.  

 APPEARANCE FOR COMPLAINANT:
 Thom as A. Ziebarth, Esq.
 Leslie A. Corston, Esq.
 
 Consumer Protection Division
 Law Department
 United States Postal Service
 Washington, DC 20260

 APPEARANCE FOR RESPONDENT:
 William D. O'Reilly, Esq.
 2 Wellman Avenue
 Nashua, NH 03060

This proceeding was initiated on July 10, 1980, with the filing of a Complaint alleging 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, Respondent is alleged to be falsely representing in direct mail advertisements soliciting orders and remittances by mail for its product the "Five Day Wonder Diet" or "Guaranteed Relaxation Diet Plan" that said product (a) is in fact a "diet," i.e., a program of caloric reduction to be followed as a means of losing weight and (b) that the "Five Day Wonder Diet" or "Guaranteed Relaxation Diet Plan" is well within anyone's capabilities and will result in substantial weight loss ("5, 10, 15, 20, pounds or more") in five days with minimal effort on the part of the user.

Respondent's default in filing a timely Answer to the Complaint was waived by the Judicial Officer and the case proceeded to hearing on October 1, 1980. The parties have filed proposed findings of fact and conclusions of law which have been fully considered, adopted to the extent indicated, and otherwise rejected as unsupported by, or contrary to, the evidence or because of irrelevancy or immateriality.

1. Respondent seeks money through the mails for its product, the "Five Day Wonder Diet" or "Guaranteed Relaxation Diet Plan," by means of unsolicited direct mail advertising circulars (Ex. 1 to this decision) (Ans. § 1; Tr. 55-57).

2. Persons who order the product from Respondent receive a paperback booklet entitled "Guaranteed Relaxation Diet Plan" (CX-3) authored by Patrick J. Berkery, Ph.D., a Catholic priest, who testified for Respondent at the hearing. The booklet prescribes what is described as a method of weight control involving a five-day program of relaxation techniques, repetition of a different verbal "formula" each day, meditation on the formulas, and, finally, falling asleep. The booklet contains no listing of recommended foods or foods to be avoided. It does not contain a program of caloric reduction.

3. Respondent's advertising circular represents, as alleged in the Complaint, that the product is in fact a diet, i.e., a program of caloric reduction to be followed as a means of losing weight. This representation is found in the names of the product ("Five Day Wonder Diet" and "Guaranteed Relaxation Diet Plan") and the guarantee that the product can "free users of 5, 10, 15, 20 pounds or more of unwanted flab and fat]"

4. Webster's Third New International Dictionary defines "diet" as "to eat according to prescribed rules; often to eat sparingly." The definition found in The Random House Dictionary of the English Language is "a particular selection of food, esp. as prescribed to improve the physical condition or cure a disease *** such a selection or a limitation on the amount a person eats for reducing weight.

5. Arthur Frank, M.D., a specialist in internal medicine, with emphasis on nutritional problems and management of obesity, testified for Complainant. Dr. Frank was well qualified to testify as to the issues in this matter (CX-2; Tr. 6, 7). Dr. Frank defined the term "diet," loosely, as a program in which the content, character, and quantity of eating is modified for a special purpose such as weight reduction. He testified the weight reduction inescapably involves reduction of caloric intake (Tr. 7, 10) and that the treatment he ordinarily employs for obesity problems consists of very low calorie diet, modified-fasting diet along with a very intensive program of psychological counseling, behavior modification, and nutritional behavior (Tr. 7). Dr. Frank described the Respondent's product as a plan directed at training the individual in a technique of meditation, a stress reduction technique. He testified that stress reduction is used occasionally as a means to achieve weight reduction but must be accompanied by reduction in caloric intake; that meditation without an accompanying diet involving caloric reduction would not be a useful procedure for weight reduction (Tr. 11, 12).

Dr. Frank would not characterize the plan as a diet (Tr. 42, 43, 44). He emphasized the fact that repeatedly the plan tells would-be users that they can eat whatever they choose, an approach which is completely inconsistent with weight loss.

6. Respondent's book states that it does not provide the user a diet (CX-3, p. 20). Father Berkery, who wrote the advertising circular, could not recall why he used the term "diet" therein. He testified that the book deals with programing the mind to achieve the proper motivational aspect to mental outlook (Tr. 85). He testified that the five-day period so prominently mentioned in the circular refers to the period of learning (Tr. 97). But he acknowledged that the circular does not reveal this (Tr. 94). Father Berkery testified that weight control, not weight loss, is the purpose of the plan and that the book (as distinguished from the circular) does not tell the user that he will lose 5 to 20 pounds (Tr. 86).

7. Respondent's advertising circular represents by implication, as alleged in the Complaint, that the product is well within anyone's capabilities and will result in substantial weight loss ("5, 10, 15, 20, pounds of more") in five days with minimal effort on the part of the user. Among the statements made in the circular conveying these representations are the following:

"NEW] The Five Day Wonder Diet

* * *

WE GUARANTEE THE RELAXATION DIET PLAN Can

Free You of 5, 10, 15, 20 pounds of more

of unwanted flab and fat]"

(Page 1, top)

* * *

"The reason the FIVE DAY WONDER DIET WILL-MUST-help you lose the weight you want, regardless of how often in the past you've failed, is simple. This time you are using basic principles just recently discovered."

(Page 1, last paragraph).

"We promise you that if you are really serious about losing those unwanted pounds of fat, even if every other diet you tried failed miserably, THIS WILL BE THE EASIEST, MOST PERMANENT WEIGHT-LOSS METHOD YOU HAVE EVER USED."

(Page 4, next to last paragraph).

* * *

LOSE WEIGHT EVEN WHILE YOU SLEEP

(Page 1, top)

In addition, the FIVE DAY WONDER DIET goes to work for you almost from day 1. ...start losing weight more easily than ever before.

(Page 2, last paragraph)

8. Dr. Frank testified that successful use of the product's meditation technique would take a great deal of highly structured motivation; that very few patients learn the technique and of those who do, very few apply it in a continuing way (Tr. 14); that the meditation technique used by itself, as outlined in the book, without any effort to modify caloric intake would not be a useful procedure for weight loss (Tr. 12, 14). He further testified that it would not be a good technique for managing impulse behavior associated with eating that would occur at various times of day in response to the various stresses of the day because the technique is not immediately available, is not facile, is not nimble. It is not something that can be called upon easily (Tr. 15). Further, Dr. Frank testified that the requirement for reading the manual requires continuing interruption of the meditation technique thus making the acquisition of skill in the technique unlikely. He has never seen such a meditation program self-taught (Tr. 12).

9. Dr. Frank testified the plan could not conceivably result in loss of 5 to 20 pounds in a five-day period because it is not an effective method of getting people to lose weight particularly when it advises users that they can eat what they please, maintaining former eating habits. Dr. Frank stated that weight loss is impossible unless eating habits are changed, decreasing caloric intake, or unless physical activity is increased. According to Dr. Frank, under no circumstances is it possible physiologically to lose as much as 20 pounds in five days (Tr. 17, 18).

Respondent's counsel, in attempting to make the point that a diet need not involve reduction of caloric intake, referred Dr. Frank to the book "Dr. Atkins' Diet Revolution" (RX-1). Dr. Frank acknowledged that the Atkins' diet is a diet plan stressing high protein intake and the importance of types of food eaten as opposed to caloric intake (Tr. 52). He also acknowledged that the Atkins' diet has been used by thousands of people but pointed out that in spite of the diet's stress on types of food eaten it results in reduction of caloric intake (Tr. 53).

10. Based on the foregoing, it is found that the "Five Dau Wonder Diet" or "Guaranteed Relaxation Diet Plan' is not in fact a diet within any commonly accepted definition of the term and, specifically, is not a program of caloric reduction to be followed as a means of losing weight. It is also found that the "Five Day Wonder Diet" or "Guaranteed Relaxation Diet Plan" is not well within anyone's capabilities and will not result in substantial weight loss ("5, 10, 15, 20, pounds or more") in five days with minimal effort on the part of the user.

11. The representations alleged in the Complaint and found above are false in fact and materially so in that their natural effect is to induce purchase of the product.

12. Prior to taking steps culminating in the initiation of this proceeding, Postal Inspector David G. Fennessey was unaware of receipt by the Postal Service of any customer complaints concerning the product in question (Tr. 67).

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, Inc. v. Christenberry, 169 F. Supp. 746 (S.D.N.Y., 1959). Express representations are not required. It is the net impression which the advertisement is likely to make upon purchasers to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it the mail fraud statutes are applicable. G. J. Howard v. Cassidy, 162 F. Supp. 568. See also Virginia State Board of Pharmacy v. Virginia Citizens Council, 425 U.S. 748 (1976).

2. Applying the foregoing standards, I find that Respondent's advertisements make the representations alleged in the Complaint.

3. The representations found are materially false in fact.

4. "Dr. Atkins' Diet Revolution" recommends a diet in the sense of modification of content and character of food intake and emphasizes weight control. But such facts are irrelevant to the issue here which is whether or not Respondent's advertising concerning its meditational approach to weight control is false.

5. A promise to refund if a customer is dissatisfied will not dispel the effect of false advertisements. Farley v. Heininger, 105 F.2d 79 (D.C. Cir. 1939); Borg-Johnson Electronics, Inc. v. Christenberry, supra.

6. Whether anyone has actually complained about Respondent's advertising or been deceived thereby is irrelevant. Fairfield Floral Co. v. Bradbury, 89 Fed. 393 (Cir. Ct. D. Maine, 1898).

7. Respondent is engaged in the conduct of a scheme for obtaining remittances of money through the mails by means of materially false representations in violation of 39 U.S.C., § 3005.

8. An order pursuant to 39 U.S.C. § 3005, in the form attached, should be issued against Respondent.