In the Matter of the Complaint Against AMERICAN FITNESS PRODUCTS P. O. Box 4607 at Manchester, NH 03105 P.S. Docket No. 8/64; 08/04/80 Grant, Quentin E. APPEARANCE FOR RESPONDENT: Joan Klar APPEARANCE FOR COMPLAINANT: Dani el S. Greenberg, Esq. Consumer Protection Division Law Department United States Postal Service Washington, D.C. 20260 Treasurer International Products Manufacturing Co., Inc. Manchester, N.H. 03101
In a Complaint filed on April 30, 1980, Complainant alleges 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.
The several specific allegations contained in the complaint are that by means of advertisements containing the following representa- tions, materially false as a matter of fact, Respondent induces readers thereof to remit money or property through the mail for the product called "TRIM-A-BOD" (Cplt. Par. II):
A. (1) That "TRIM-A-BOD" will cause loss of weight;
(2) That "TRIM-A-BOD" will cause losses of 10-40 pounds of excess weight for most users having that much excess weight;
(3) That "TRIM-A-BOD" will enable most people with a 46 inch waist to reduce same to 26 inches;
(4) That "TRIM-A-BOD" will reduce the user's excess fluids.
B. (1) That, by its references to loss of weight, girth, and fluid, coupled with its failure to clearly and conspicuously disclose that any losses that may occur are temporary, and its failure to clearly and conspicuously disclose that the effect of the "TRIM-A-BOD" is primarily a mechanical, compressing action which has effect only as long as the device is worn, Respondent represents that the results enumerated in subparagraph II A, supra, will be permanent, absent a change in the user's diet or exercise habits;
(2) That, but its failure to clearly and conspicuously disclose that any fluid that may be lost as a result of the use of "TRIM-A-BOD" will be replaced when the user next ingests food or fluid, Respondent represents that said fluid loss plays a significant part in the weight loss promised.
Respondent filed an Answer admitting that its ads state that the product will cause weight loss, denying the falsity of the representations alleged, and admitting that Respondent induces readers of the ads to remit money or property through the mails based on such representations.
A hearing was held on June 17, 1980. Both parties have submitted proposed findings of fact, conclusions of law, and written arguments. All arguments have been considered. The proposed findings and conclusions have been adopted to the extent indicated and have otherwise been denied.
1. Respondent, a d/b/a of International Products Marketing Co., Inc. (Tr. 3), is engaged in the sale through the mails of its product, "TRIM-A-BOD" (hereinafter called the product) (Tr. 6-9; CX-1 through CX-8).
2. Purchases of the product are induced by advertisements appearing in widely circulated publications (CX-1a, 8). A copy of a typical advertisement is attached hereto as Exhibit 1.
3. The product is sold in two forms, a "reducing belt" and "reducing shorts" (CX-7b, 6b). They are composed, apparently, of rubber, or rubber-like material (inner surface), to which a stretchable fabric has been adhered on the outer surface.
4. Applying the standards for interpretation of advertising set forth in the Conclusions of Law, below, I find that Respondent's advertising makes the representations alleged in paragraph II A of the Complaint as follows:
a. "That 'Trim-A-Bod' will cause a loss of weight."
This representation is found in the wording presented in the boldest face type in the ad appearing in the upper left corner thereof: "LOSE 10 POUNDS
LOSE 20 POUNDS
or
LOSE 30 POUNDS
b. "That 'TRIM-A-BOD' will enable most people with a 46 inch waist to reduce same to 26 inches."
This representation is found in words appearing in other boldface type in the upper left corner of the ad reading as follows:
"Go from as much as a 46 inch waist to a 26 inch waist."
c. "That 'TRIM-A-BOD' will reduce the users excess fluids."
This representation is found in the following wording of the advertisement:
"Remember, Trim-A-Bod, is designed to aid you in reducing unwanted ... fluids from waist, hips, upper thighs and buttocks.
" Wear the Trim-A-Bod when you want to temporarily rid your waist, hips, upper thighs and buttocks of excess fluids..."
5. Respondent's advertising does not as alleged in the Complaint, represent that Trim-A-Bod will cause losses of 10 - 40 pounds of excess weight. It represents losses of 10 to 30 pounds. The 10 - 40 pound range is mentioned in the ad only in connection with sizes of the product available.
6. The only expert testimony in the case was that of Complainant's witness Dr. Lawrence Slotkoff, professor of medicine at Georgetown University School of Medicine, and member of the staff of Georgetown University Hospital for the past 19 years. Dr. Slotkoff runs the hypertension clinic of that hospital and D. C. General Hospital. Part of his research is in the area of control of body fluids. He is also familiar with the causes of excess girth (Tr. 10, 11). Dr. Slotkoff was well-qualified to testify in this matter although he had not personally used or tested the product.
7. Based on Dr. Slotkoff's testimony I find the following:
a. Excess girth is caused by obesity, which is excess fat, or by an excess accumulation of fluid due to a pathological condition such as heart failure or cirrhosis of the liver (tr. 11, 12).
b. Excess girth due to fat is treated by putting a patient into a negative calorie balance achieved primarily by reducing the amount of calories consumed. Excess girth caused by a patholo-
gical state is, depending on its cause, treated in various ways such as with medication or restricting fluid intake (Tr. 12).
c. Girth directly under the Trim-A-Bod garments, or devices, will narrow to some extent while the garments are worn but the girth will return to its former state on removal of the garments (Tr. 13).
d. The body loses fluid in the form of sweat when body temperature rises above 98.6 degrees Fahrenheit. Unless worn during exercise the product does not cover enough of the body, even if both garments are worn together, to cause an increase in total body temperature so that any significant amount of body fluids will be lost to restore normal body temperature through evaporation (Tr. 13, 14). If worn during exercise, the garments might cause slight increase in body temperature producing a loss of a few ounces of body fluid (Tr. 13, 15).
e. Loss of body fluid producing a 10 pound weight loss would involve approximately one gallon of fluid which would be restored almost immediately because of the thirst mechanism which would induce the drinking of replacement fluid. If replacement fluid were not taken, severe illness would result. Losses of fluid sufficient to reduce body weight by 30 pounds would be life-threatening (Tr. 15, 16).
f. The wearing of the product, either one garment or both, will not enable most people with a 46 inch waist to reduce the waist to 26 inches (Tr. 17).
g. For a person with excess body fluid, wearing of either or both garments will not reduce such fluids more than a few ounces even in a very hot climate and with a large amount of physical activity (Tr. 17, 18). Any fluid losses would be drawn from the whole body, not just from the areas covered by the product (Tr. 29).
h. Any significant loss of body fluid through wearing the product, if it could occur, would be restored rapidly by drinking water to reconstitute the lost fluids, a result of the thirst drive (Tr. 18, 19).
i. The Trim-A-Bod will not cause a loss of weight (Tr. 19).
8. Dr. Slotkoff's opinions are in conformity with the medical consensus (Tr. 20, 21).
9. Based on Dr. Slotkoff's testimony and finding No. 7, above, I find that the representations alleged in paragraphs II A (1), (3), and (4) are false in fact. In that such representations would tend to induce purchases of the product they are material.
10. Respondent's advertisement does not represent that the result promised in the representations alleged in paragraphs II A (1), (3), and (4) will be permanent. The ad indicates that such results will be temporary.
11. By failing to disclose that any fluid that may be lost as a result of the use of the product will be replaced when the user next ingests food or fluid, Respondent falsely represents that such fluid loss plays a significant part in the weight loss promised.
12. Respondent's witness Joan Klar testified as to personal experience with the product, using it herself and checking the results of its use by her husband and several employees of International Products Marketing Co., Inc. which does business as American Fitness Products selling Trim-A-Bod. Mrs. Klar testified that she had temporarily lost 2 1/2 to 3 inches from her waist wearing the belt overnight (Tr. 36). She also testified as to reduction in weight and girth experienced by employees who used the product and which Mrs. Klar had measured. Girth losses ran from 1 1/2 to 2 inches down to 1/2 to 1/4 inches (Tr. 52). She did not state with certainty the amount of weight losses she attributed to wearing the product because the persons who lost weight were grossly overweight and on diets. Mrs. Klar made girth measurements with a regular tape measure without any special procedure to assure accuracy (Tr. 54-56).
13. Dr. Slotkoff testified that Mrs. Klar's experience with the product did not alter his opinion as to its lack of efficacy. He stated that the measurements taken by Mrs. Klar could not be accepted as accurate or meaningful because they were: anecdotal; subject to possible bias on the part of tester and subjects; subject to differences in waist size and to differences caused by breathing during measurement; and very possible affected by diets being followed by the overweight subjects.
14. Based on Dr. Klar's expert testimony, I find that no weight can be given to the anecdotal experiences of Mrs. Klar.
1. Respondent acknowledges that its advertisements might be read to make some of the representations alleged. But it argues that there was no intent on its part to deceive or defraud anyone with its advertisements. Mrs. Klar's testimony persuades me that there was no such intent. However, intent is not an element of a violation of 39 U.S.C. § 3005. Lynch v. Blount, 330 F. Supp. 689, 693 (S.D. N.Y. 1971), aff'd 404 U.S. 1007 (1972). Regardless of intent, the statute is violated if false representations are made.
2. 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 Electronic 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 Consumer Council, 425 U.S. 748 (1976).
3. Applying the foregoing standards I find that Respondent's advertising makes the representations alleged in paragraphs II A (1), (3), (4) and II B (2) of the Complaint. I do not find the representations alleged in paragraph II A (2) and II B (1).
4. The representations found are materially false in fact.
5. Testing of the product is not required to sustain a Complaint under 39 U.S.C. § 3005. Without it, the opinion of a medical expert is sufficient evidence of falsity of advertising claims. Original Cosmetics Products, Inc. v. John Strachan and United States Postal Service, 459 F. Supp. 496 (S.D. N.Y. 1978), aff'd w/o Op. 2d Cir., 78-6165, 4/30/79.
6. 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, 169 F. Supp. 746 (S.D. N.Y. 1959).
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.