In the Matter of the Complaint Against THE NEW BODY BOUTIQUE, INC. also doing business as THE NEW BODY BOUTIQUE at P. O. Box 2481 Grand Central Station New York, NY 10163 and at P. O. Box 2521 Grand Central Station New York, NY 10163 and at 2105 Lakeland Avenue Ronkonkoma, NY 11779 and at 37 Eleventh Avenue Huntington Station, NY 11746 P.S. Docket No. 10/169; 10/28/81 Bernstein, Edwin S. APPEARANCE FOR COMPLAINANT: Hild a Rosenberg, Esq. Consumer Protection Division United States Postal Service Washington, DC 20260-1100 APPEARANCE FOR RESPONDENT: Lee H. Harter, Esq. 2256 Van Ness Avenue San Francisco, CA 94109 BEFORE: Judge Edwin S. Bernstein
Complainant alleged and Respondent denied that Respondent is conducting a scheme to obtain money through the mail by means of false representations in violation of 39 United States Code § 3005. I held a hearing in Washington, D.C. on June 23 and 25 1981. Inspector Gilbert Lee Barta and Dr. William R. Ayers testified for Complainant and Dr. Marc Sommers testified for Respondent.
I find that Respondent solicits money through the mail in connection with the sale of its product, Second Skin, at the addresses set forth in the caption of this proceeding. At the hearing, Respondent's Counsel so stipulated with respect to two of these addresses - 37 Eleventh Avenue, Huntington Station, New York 11746 and 2105 Lakeland Avenue, Ronkonkoma, New York 11779 (Tr. 3, 4). With respect to the other two addresses, P. O. Boxes 2521 and 2481, Grand Central Station, New York 10163, Respondent does not dispute Complainant's allegation to that effect (Tr. 3, 4). Additionally, the testimony of Postal Inspector Barta and the exhibits introduced into evidence in connection with his testimony support this finding.
I also find that Respondent's advertisements make the represen- tations alleged in Paragraph 3, subparagraphs (a) through (f) of the Complaint. Exhibit 1a is representative of Respondent's advertising for the Eleventh Avenue address, Exhibit 4 is representative for the P. O. Box 2481 address, Exhibit 5 is representative for the P. O. Box 2521 address, and Exhibit 6 is representative for the Ronkonkoma address. The reasons for my findings with respect to each allegation are as follows:
(a) Second Skin will Cause You To Lose Five Pounds in Five minutes and Five Inches in Five Hours. The headings of Exhibits 1a, 5 and 6 read "You can lose up to 5 pounds in 5 minutes 5 inches in 5 hours." The use of the words "can lose" and "up to" in this phrase does not detract from the impression conveyed to the average consumer that the results reasonably can be expected. Iso-Tensor Plan, P.S. Docket No. 3/30 (1975) and Weider Distributors, Inc., P.S. Docket No. 3/27 (1974). In the latter case, the Judicial Officer stated:
"With respect to Charge 1 above, Respondent's exception to Judge Duvall's findings places great weight upon the fact that the advertised claim of 'a pound-a-day, 14 pounds in 14 days' was preceded by the words 'up to'. Respondent's argument is too technical. See Spiegel, Inc. v. F.T.C., 411 F.2d 481, 483 (7th Cir. 1969), where the court citing Aronberg v. F.T.C., 132 F.2d 165, 167 (7th Cir. 1942), stated that 'The meaning and impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied'. The words 'up to' could conceivably be construed to mean one ounce but no one would reasonably read the total advertisement as being so limited. The general import of this advertisement even with the limiting words 'up to' conveys to the general public that a loss of 14 pounds would not be unusual. However, the evidence of record would indicate that such a loss would be rare indeed. Viewed in relation to the entire advertisement the words 'up to' exceed the bounds of normal expected business puffing."
The impression of rapid weight loss is further conveyed by the words following the heading "with Second Skin - The Space Age Slenderizer that starts erasing extra pounds and unsightly inches instantly. emphasis added . The advertisement indicates that " a ll over the world people are using these same scientific principles to shed unwanted weight and excess flab, in just minutes." emphasis added . Respondent asks, in regard to the steam room, "How did you feel after just a few minutes?" emphasis added . Implying that Second Skin will enable you to achieve the same results in that short time period, it answers: "You felt lighter, tighter, healthier, and more invigorated." emphasis added . The last sentence of that same paragraph repeats the weight loss claims made in the caption but inserts the word "actually" before the word "lose". In the following paragraph, Respondent states that Second Skin works "immediately." The rapidity with which this garment works is once again announced in the second paragraph which states "Second Skin is designed for super-speed and super-results]" The final reminder of Second Skin's fast and dramatic effect appears in the statement of guarantee. The Respondent assures the customer that he must be "completely satisfied after the first 15 minutes of use," or his money will be refunded. emphasis added
(b) Second Skin Will Cause a Loss of Inches and Pounds Lasting For more Than a Temporary Period.
In Exhibits 1a, 5, and 6, the notion that this weight loss will last for more than a temporary time period is conveyed by the use of language which connotes permanence, including with emphasis added :
(1) "You can lose . . ." (caption)
(2) "Second Skin--The Space Age Slenderizer that starts erasing extra pounds & unsightly inches instantly]" (caption)
(3) "Lose pounds and inches from waist, hips, & thighs" (paragraph 1)
(4) "Second Skin will actually take off bloaty pounds and ugly inches . . ." (paragraph 1)
(5) "shed unwanted weight . . ." (paragraph 1)
(6) "you can actually lose . . ." (paragraph 1)
(7) "to slim down and keep trimmer" (paragraph 2)
(8) "Lose inches while you sleep]" (paragraph 3)
(9) "That's right--24 hour, night and day slenderizing action . . ." (paragraph 3)
Exhibit 4 contains similar language. The caption states, " d rop Pounds and Inches anytime with Second Skin, " and the main body of the advertisement reads, " e exercising or lounging around, this suit will drop inches and pounds like magic." emphasis added . Finally, all exhibits refer to the product as the "Space Age Slenderizer."
Moreover, Respondent's complete and material omission of any mention that weight loss caused by Second Skin will be of a temporary duration, if at all, misleads the reader into believing otherwise. The Supreme Court expressed the principle that the omission of information can be very misleading in Donaldson v. Read Magazine, Inc., 333 U.S. 178, 188 (1948):
Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed, or purposely printed in such a way as to mislead. emphasis added .
The average reader has no reason to believe that losing pounds through the use of Second Skin is any more temporary than reducing weight by restricting caloric intake or dieting. When the advertise- ment states "lose pounds and inches", it would be quite reasonable for the reader to surmise that he will actually lose pounds and inches and will not readily regain the loss by drinking one or more glasses of water. By glorifying the effectiveness of Second Skin, and labeling it the "Space Age Slenderizer," Respondent has further reduced the likelihood that the reader would realize the very temporary value of this garment or that the duration of its effect is any different from that achieved through dieting.
The statement in Exhibits 1a, 5, and 6 advising the consumer to use Second Skin "regularly, as needed to slim down and keep trimmer" (bottom of paragraph 2) and the claim in Exhibit 4 that Second Skin will cause you to "drop pounds and inches anytime" do not constitute a sufficient disclosure of the very temporary nature of this garment's effects. Upon viewing the advertisements in their entirety, I find that the average consumer is not put on notice, through the adverbs "anytime" or "regularly, as needed of the very limited effects of this garment. This finding is consistent with my finding at the Hearing that it is implicit in the advertisements that "a loss will not be quickly regained." (Tr. 56)
(c) Second Skin Is an Effective Reducing Method For Persons Who Are Overweight.
Various aspects of Respondent's advertisements convey this impression. The product is described as the Space Age (Body) Slenderizer in all advertisements. In Exhibits 1a, 5, and 6, Respondent uses many phrases that reinforce the impression that Second Skin is an effective reducing method. These include "will actually take off", "you can actually lose", "to slim down and keep trimmer", "Second Skin is designed for super-speed and super-results". Additionally, Exhibit 4 represents that you will "drop pounds and inches."
(d) Second Skin Is An Effective Treatment For the Accumulation of Excess Body Fluids, and will rid you of such fluids.
Exhibits 1a, 5, and 6 state that Second Skin works on the " w aist, hips, thighs, even arms . . . anywhere deposits of excess fluids add extra pounds and form those unslightly and embarrassing bulges and rolls." (Paragraph 2.) The advertisement also claims that "Second Skin will actually take off bloaty pounds." (Paragraph 1.) These representations, together with Respondent's pound and inch loss claims, indicate that Second Skin will effectively treat the accumulation of excess body fluids and rid the body of them.
(e) Second Skin Will Make You Lose Weight Without Your Having to Diet or Exercise.
As I ruled at the hearing, the words, "just lounging around", "No Pills, No Hunger", and "LOSE INCHES WHILE YOU SLEEP" imply that Second Skin will cause weight loss without diet or exercise (Tr. 52). The advertisement omits any mention of any exercise plan or need for exercise. The fact that smiling models are depicted holding tennis rackets and posing in exercise positions does not sufficiently counteract this impression. The words "no pills, no hunger: coupled with the lack of reference to dieting convey the impression that dieting will not be required.
(f) Second Skin Will Cause You to Lose Inches While You Sleep. This representation is explicitly stated in the third paragraph of Exhibits 1a, 5, and 6:
"LOSE INCHES WHILE YOU SLEEP] That's right--24 hour, night and day slenderizing action . . . ."
I further find that all of the above representations are materially false. In reaching these conclusions, I accorded a good deal of weight to the testimony of Complainant's witness, Dr. William R. Ayers. Dr. Ayers is Medical Director of the Georgetown University Diet Management Program and has written extensively in the field of weight reduction. I find that his testimony is in accordance with the consensus of informed medical opinion in the field of weight management. I placed much less credence on the views of Respondent's expert, Dr. Marc Sommers. Dr. Sommers received his chiropractic degree in 1978, has published no articles in scientific journals, has done no studies on the effect of Second Skin on weight loss, and only deals with overweight persons in connection with his treatment of patients for chiropractic problems.
The reasons for my findings that the representations alleged in Paragraph 3, subparagraphs (a) through (f) are false are as follows:
(a) Second Skin Will Cause You To Lose Five Pounds in Five Minutes and Five Inches in Five Hours.
Dr. Ayers testified persuasively that Second Skin would have almost zero effect on reducing obesity which he defined as the excess accumulation of fat (Tr. 71, 73). He stated while running a marathon a trained athlete will expend 550 calories in one hour, and 3500 calories must be expended to lose one pound of fat (Tr. 149). Thus, even a marathon runner would lose substantially less than one pound of fat in an hour.
Dr. Ayers further testified that the average person would lose less than a pound of perspiration in five minutes wearing Second Skin (Tr. 146).
As to loss of inches, Dr. Ayers stated that fluid loss would come from various parts of the body and thus Second Skin could not cause a loss of five inches in five hours (Tr. 82).
When questioned on this issue, Dr. Sommers stated:
"It is hard to quantify how many pounds, how many inches somebody can lose in a certain amount of time .. . Under maximum conditions, it is possible to lose up to eight pounds an hour." (Tr. 177)
(b) Second Skin Will Cause a Loss of Inches and Pounds for More Than a Temporary Period.
Respondent, itself, indicated that Second Skin, even with its five minutes per day exercise program, will not cause a permanent weight loss. On page 1 of Cx-9b, an instruction sheet accompanying the garment, Respondent states: "Naturally no permanent loss of inches or weight can be properly attained without a sound, sensible, nutritionally balanced diet."
Dr. Ayers testified that the only noticeable effect Second Skin will have on weight reduction is that it will encourage water loss through sweating during exercise (Tr. 73). However, Dr. Ayers explained that a person can never lose weight permanently through water loss; he would always replenish the lost fluid (Tr. 124). The body's physiologic mechanisms are constructed to maintain a "status quo or a homeostasis," of body fluid (Tr. 74). When body water is reduced through sweating, the thirst mechanism is turned on, so that the individuals will drink and replenish the lost water (Tr. 74).
Also, the body will retain fluids from foods subsequently eaten and manufacture water in its metabolic pathways (Tr. 116, 148). Although the time required to replenish the fluid lost depends, in part, on how vigorous and sustained the exercise is and the state of the body's total hydration when exercise commenced, Dr. Ayers estimated that the time would be minutes to hours (Tr. 75).
Dr. Sommers stated that an acclimatized person can lose three to eight pounds of water in one hour which amounts to a three to eight pound weight loss in 12 days. When questioned as to whether he was assuming that water would not be returned to the body, his affirmative response was significantly qualified (Tr. 195). He explained:
The purpose of these mechanisms, as Dr. Ayers testified, is to create a state of homeostasis which translates into body balance. If a person following the exercise program is advised not to ingest fluid to make up for the fluid that he is losing in terms of sweat, then there would be a continual down setting of those homeostatis controls. (Tr. 195-196)
I found no support for this latter conclusion anywhere else in the record. It seems more plausible, as testified by Dr. Ayers, that it would be unphysiologic to fail to replenish water loss, and that the individual's thirst "will drive him crazy until he has replenished the los fluids" (Tr. 122). I also found persuasive Dr. Ayers' testimony that over a 30 day period of exercise while wearing Second Skin for five minutes a day the average person will lose but 90 calories (Tr. 150).
(c) Second Skin is an Effective Reducing Method For Persons Who Are Overweight.
The fact that, as previously found, fluid loss would be quickly replenished and an average of three calories would be lost while exercising and wearing the garment for five minutes daily refutes this representation. Second Skin thus leads to quickly regainable fluid loss and miniscule fat loss.
(d) Second Skin Is An Effective Treatment For the Accumulation of Excess Body Fluids, and Will Rid You of Such Fluids.
Most overweight people do not suffer from the excess accumulation of fluids. That condition is called edema (Tr. 71). Edema is a pathological condition caused by failure of the end organs of the heart, liver or kidney (Tr. 83, 193). These conditions are treated by therapeutics to the organ in question; not by increased perspiration (Tr. 88, 194).
(e) Second Skin Will Make You Lose Weight, Without Your Having to Diet or Exercise.
Dr. Sommers testified that wearing Second Skin without diet or exercise is an insufficient treatment for obesity (Tr. 184). He further testified, and Respondent's instruction sheet also notes, that no permanent loss of pounds or inches can be properly attained without a sound diet (Tr. 184).
Similarly, Dr. Ayers testified that fluid loss through Second Skin will only be accomplished through exercise, when increased sweating occurs (Tr. 78, 80). If an individual wears Second Skin merely during his normal activities without exercising and his caloric intake remains unchanged, he will not lose weight (Tr. 100).
(f) Second Skin Will Cause You to Lose Inches While You Sleep.
Dr. Ayers testified that wearing the Second Skin suit while sleeping would have a negligible effect on weight loss (Tr. 79, 80).
Without the increased heat production due to exercise, radiation would be adequate to dissipate heat as rapidly as it is produced (Tr. 80). In a sleeping individual the total body temperature would not rise and, therefore, the sweating mechanism would not be triggered (Tr. 80). An individual ordinarily loses some weight by sleeping, but this is independent of the wearing of Second Skin (Tr. 120).
1. Since Respondent has sought remittances of money through the mail, the jurisdictional requirement of 39 U.S.C. § 3005 has been fulfilled.
2. The representations made by an advertisement are considered to be those that the purchaser to whom it was directed, presumed to be of ordinary intelligence, would understand from viewing the advertisement as a whole. What has been omitted and what may be reasonably implied from the advertisement are considered in assessing its meaning. Donaldson v. Read Magazine, Inc., supra.
3. The average overweight person reading Respondent's advertisements, would interpret them substantially as characterized in Paragraph III, subparagraphs (a) through (f) of the Complaint.
4. Complainant is not required to make a test purchase at each and every address to which a single Respondent directs remittances for the purchase of its product.
The case of Leasure Time Products, P.S. Docket No. 5/177 (1977) held:
For representations in the advertisements of a respondent to be found false and for the application of 39 U.S.C. 3005 it is not necessary that a test purchase be made by the postal inspector in response to a particular advertisement. Initial Decision at 10. emphasis added .
Complainant initiated test purchases for Second Skin by sending remittances to two addresses employed by Respondent: 37 Eleventh Avenue, Huntington Station, New York 11746 and 2105 Lakeland Avenue, Ronkonkoma, New York 11779. No remittances were sent to P.O. Box 2481 or P.O. Box 2521 in Grand Central Station, New York 10163.
Since there was no doubt that the Second Skin garment, ordered from all four of these addresses would be substantially similar, test purchases at all four addresses were unnecessary. In its response to Complainant's discovery request for production of Second Skin garments if more than one garment existed, Respondent stated, " t here is only one garment marketed under the name Second Skin by this Respondent." Respondent's Response to Application For Production of Documents, paragraph 4 (June 1, 1981). Whether or not the instruction sheet would have accompanied the garment ordered from the P.O. Box 2481 or 2521 addresses, the representations contained in the advertisements, soliciting remittances there, are false and misleading.
5. Since Respondent's advertisements represent that the Second Skin garment is the sole cause of weight reduction, and no mention is made of the necessity of a five-minute exercise plan, of exercise generally, or of dieting for affecting such weight loss, the truthfulness of the representations must be determined according to the effectiveness of the suit alone. Ama-Tol Industries, Inc., P.O.D. Docket No. 2/266 at 8-9 (1968).
6. A difference of opinion concerning a product's worth does not preclude the issuance of an Order under 39 U.S.C. § 3005 where it is shown that the Respondent represents its product to have a far greater value than it, in fact, had. Leach v. Carlile, 258 U.S. 138, 139 (1922); Original Cosmetics Products, Inc. v. Strachen, 459 F. Supp. 496 (1978).
7. A promise of a refund if a customer is dissatisfied will not dispel the effect of false advertisements. Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir. 1939); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746, 751 (S.D.N.Y. 1959).
8. The representations specified in Paragraph III, subparagraphs (a) through (f) of the Complaint are materially false.
Therefore, I conclude that Respondent is engaged in conducting a scheme for obtaining money through the mail by false representations in violation of 39 U.S.C. § 3005 and that a mail stop order, substantially in the form attached, should be issued against Respondent.