In the Matter of the Complaint Against FIGURE DYNAMICS Roberts Lane at Glen Head, NY 11545 P.S. Docket No. 10/8; 08/25/81 Bernstein, Edwin S. APPEARANCE FOR COMPLAINANT: Dani el S. Greenberg, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1100 APPEARANCE FOR RESPONDENT: Sheldon S. Lustigman, Esq. Bass, Ullman & Lustigman 747 3rd Avenue New York, NY 10017 BEFORE: Judge Edwin S. Bernstein
Complainant alleged and Respondent denied that Respondent is engaged in conducting a scheme or device to obtain money or property 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 March 11 and 18, 1981. Dr. Arthur Frank testified for Com plainant and Dr. Anthony Conte and Dr. Susan Baturay testified for Respondent.
The parties stipulated and I find that Respondent solicits money through the mail in connection with the sale of its product, Slumbertrim. (Tr. 2, 3)
Dr. Arthur Frank is a physician who specializes in internal medicine. His fields of expertise include obesity and fat and lipid metabolism. (Tr. 10-12) He testified that the primary cause of excess weight is the accumulation of fat, usually by the ingestion of calories in excess of the body's needs. (Tr. 13) In some people, the accumulation of fluids increases weight. In certain complicated medical conditions, associated with heart failure, liver failure and kidney failure, the accumulation of fluids can be serious and life-threatening. (Tr. 14) For ordinary people, fluid accumulation amounts to an annoyance. Usually it represents three to five pounds and is but a small part of the problem of obesity. (Tr. 14) Ordinarily, excess fluid does not warrant treatment. (Tr. 16) Occasionally, one might want to take a mild diuretic pill, which will facilitate the increased urination of fluid. (Tr. 16, 17)
Dr. Frank stated that Respondent's Slumbertrim garment (CX-7) would have no effect on the user's fat. (Tr. 18, 19) He testified that wearing this garment will not cause any fluid loss. It would redistribute fluid out of the area that it covers by squeezing. Conceivably, this could cause the kidneys to process a bit more fluid. (Tr. 19) Also, the garment probably will not increase perspiration to any significant extent. (Tr. 19, 20) He stated that covering a local area of the skin with a garment that will not absorb perspiration will not increase perspiration. It will just prevent the existing perspiration from evaporating, thereby accumulating that moisture. (Tr. 21)
Dr. Frank stated that it is normal for people to lose weight overnight. The average person burns four to five hundred calories a night in just keeping alive. In addition, the body processes fluids and substances and the kidneys prepare urine for excretion during the night. Therefore, by urinating during the night and upon waking in the morning, individuals lose weight. An individual's lowest daily weight is after urinating upon waking in the morning. (Tr. 22) The average individual's overnight weight loss is between one-quarter and three-quarters of a pound. (Tr. 22)
Dr. Frank also testified that a person who lost eight pounds of fluid overnight would be seriously dehydrated, uncomfortable; would suffer from a loss of blood pressure and probably faint. (Tr. 26-27) He stated that to demonstrate scientifically that Respondent's product caused the weight loss claimed, would require carefully controlled studies. These would include accurate weights and measurements for two groups of comparable size, age, sex, anatomical characteristics, and water or edema retention characteristics. (Tr. 28) It also would be important to have a large enought test group for the study to be statistically valid. (Tr. 30) He also stated that girth measurements are difficult to make and bias, either conscious or unconscious, can be manifested in making girth measurements. (Tr. 31) He testified that a test involving five people would be useless. (Tr. 32) Also needed is as long and as stable a baseline as possible, in order to determine the characteristics of the test subjects. (Tr. 33) You also would want to control for degree of obesity. A very fat person will have a different reaction then a mildly overweight individual. (Tr. 34) A very fat person probably has accumulated more fluid. (Tr. 35) Additionally, some women retain more fluid during different parts of their menstrual cycles than others. (Tr. 35, 36) Furthermore, weights and measurements vary during different times of the day. (Tr. 37)
Dr. Frank stated that in his opinion wearing the Slumbertrim garment for one night will not cause most users to lose eight pounds. He further testified that he could not imagine any circumstance in which wearing Slumbertrim for one night could cause the average user to lose 4.9 pounds. (Tr. 37)
Dr. Frank testified that Slumbertrim, worn for one night, will not cause the average user to lose 6.4 inches of girth overall. (Tr. 50) He stated that the garment could cause its user to lose up to one-quarter pound of fluid, but the ordinary user would then become thirsty and either replace that fluid or overcompensate and increase his fluid intake and weight in a "rebound kind of over-accumulation of fluid." Thus, by the second night, the individual will have regained all fluid lost during the first night as a result of using the garment. (Tr. 51, 52)
Dr. Frank defined a crash diet as a very low calorie diet of less than six or seven hundred calories a day. Crash diets deplete the body's store of carbohydrates. This causes a large weight loss in water. He stated that many obese persons who consumed four to five hundred calories daily could lose as much as eight pounds of fluid in three days, while those who weighed 350 to 400 pounds could lose as much as 12 pounds in three days. (Tr. 54, 55) However, Dr. Frank believes that girth losses would be negligible, since the water loss will come from all over the body. (Tr. 55, 56)
Dr. Frank stated that he keeps up with the consensus of medical opinion in this field and his testimony is in accordance with that consensus. (Tr. 57) On cross-examination, Dr. Frank stated that he never used the Slumbertrim garment and never saw it used. (Tr. 59) He denied that there is increased perspiration to a wet skin area. (Tr. 63)
When asked about RX-1, an article that showed weight losses for six men in an experiment, Dr. Frank explained that the article indicated that the subjects were overhydrated before the experiment and were exposed to temperatures of 180 degrees fahrenheit, including a sauna bath. He further testified that the article was quite qualified and contained the statement, "Data on body fluids are difficult to interpret." (Tr. 73)
Dr. Frank emphasized that it is difficult to measure girth because the location of and the tension on the tape used tend to vary. (Tr. 89, 91) Also, as one loses weight, his navel sags downward. (Tr. 116) In contrast, weight can be measured precisely. (Tr. 93) He emphasized that people who lose weight by perspiration became thirsty, drink, and regain the lost weight by drinking. Also, if one perspired four or five pounds of fluid while sleeping, he would awake in a puddle. (Tr. 97, 98)
When asked about data regarding sweating in RX-2, an article entitled "Sweating: Direct Influence of Skin Temperature", Dr. Frank stated that in that test the subjects exercised and were exposed to temperatures of 92 degrees fahrenheit. Those conditions differ from the normal sleeping environment. (Tr. 102, 103) Dr. Frank reiterated that he doubts that an individual would lose more than a quarter of a pound overnight by wearing Respondent's garment. (Tr. 119)
Dr. Anthony A. Conte is a bariatrician. He is a physician who specializes in the medical management of weight control, mainly through nutrition. He has practiced this specialty since 1963 and has helped drug companies to develop appetite suppressants. (Tr. 145-147)
In 1980, Respondent asked Dr. Conte to evaluate Slumbertrim. (Tr. 148) RX-3 is the report of that evaluation. Dr. Conte explained that he evaluated the garment in 5 women, who were from 30 to 35 years old. One was mildly obese, three were moderately obese, and one was severely obese. (Tr. 157) The study excluded patients who were taking medicines or appetite depressants and who had diseases that might interfere with the evaluation. He tested the subjects' blood, urine, blood pressure, and pulse and measured their weight and girth. (Tr. 157, 158) His investigators told the subjects not to change their eating habits. (Tr. 161) Dr. Conte found that after five days of wearing Slumbertrim, the subjects had a mean weight loss of 4.8 pounds and mean losses of 2.8 inches from their hips, 1.2 inches from their thighs, and 2.4 inches from their stomachs. (Tr. 166; CX-3, p.11) He concluded that it was safe to wear the garment (Tr. 167) and that its non-porous nature increased body heat and perspiration. (Tr. 171) The test subjects told him that they perspired more when they wore the garment. (Tr. 174)
Dr. Conte stated that he believed that the garment was instrumental in causing a temporary weight loss through perspiration. (Tr. 175)
On cross-examination, Dr. Conte stated that four of the subjects were his ex-patients. (Tr. 176, 177) He indicated that he is not board-certified. (Tr. 181) He stated that one of those tested, Bristol Good, had been a nurse in his office who had helped him to treat obese patients for 15 years. (Tr. 188) He admitted that the patients might have reduced their calorie intake during the test period. (Tr. 191) He stated that one patient, Helen Mehalik, menstruated during the test period and that this could have affected her test results. (Tr. 193-195) However, he did not ascertain in what part of their menstrual cycles the other subjects were during the test period. (Tr. 195)
When asked, " D o you feel that the report proves that the garment will effect a weight loss or a girth loss when worn overnight while sleeping?" Dr. Conte answered, "Temporarily, yes." (Tr. 204) When asked "Do you feel that using these five people gave you statistically valid results?", Dr. Conte paused for quite some time before answering. He concluded his answer with "I would only consider using this here as an adjunct in my practice." (Tr. 206)
Dr. Conte also testified that in evaluating an appetite depressant, he tested 60 subjects in a double-blind study. (Tr. 368) In a double-blind study, neither the person tested nor the investigator knows which group is given the drug to be tested and which group is given a placebo or similar-appearing, innocuous substance. This is to avoid bias by the investigators as well as by the subjects. (Tr. 371-378) He stated that abdomen measurements can change slightly and chest measurements can change as much as two inches during breathing. (Tr. 400) He stated that during the test,
Mrs. Good measured the other four subjects and another nurse measured Mrs. Good. (Tr. 401) He testified that neither the subjects nor his nurses were given any written instructions regarding the test or measurements. (Tr. 402)
Dr. Conte stated that measurements were made with a steel tape. He testified that the chest was measured at the nippleline, the waist was measured at the unbilicus, and the thighs were measured halfway between the knee and the crest of the illium. However, he admitted that sometimes it is difficult to locate the illium in obese people. (Tr. 404)
Dr. Conte stated that in measuring he usually tells his patients to take a deep breath, exhale, and then hold their breath. However, he was uncertain whether this practice was followed during the test. (Tr. 405) He stated that his investigators rounded off weight measurements to the nearest pound and girth measurements to the nearest inch. (Tr. 411) He testified that there was no guideline for rounding off half-pound weights. Thus, if a patient weighed 144 1/2 pounds, her weight could have been reported as either 144 or 145 pounds. (Tr. 408) As a result, an one-quarter pound difference would have been reported as a one pound difference if the subject weighed 144 5/8 pounds (145) one day and 144 3/8 pounds (144) the next day. (Tr. 412) The same inaccuracy would apply in rounding off measurements to the nearest inch. (Tr. 413)
Dr. Conte admitted that the patient's desire to lose weight could have influenced her eating habits during the test. (Tr. 415) He stated that his nurse, Mrs. Good, wore the garment for several days after she was supposed to have removed it, because of a misunderstanding. (Tr. 417) He acknowledged that patient number four lost two pounds while she was not wearing the garment between the tenth and fifteenth days. (Tr. 418) He stated that some women can gain up to 15 pounds before they menstruate. (Tr. 420)
Dr. Conte stated that his associate, Dr. Marlin, analyzed the statistics. Dr. Conte did not check any of Dr. Marlin's data for accuracy. He trusted Dr. Marlin, based upon past experience. (Tr. 424, 425) He acknowledged that the graph in page 8 of the report is confusing and appears to indicate that one patient started at day eight. The same problem appears in page 9 of the report. Dr. Conte stated that perhaps these are errors. (Tr. 432, 433) Dr. Conte acknowledged that obese people may change their eating habits without being aware of such changes. (Tr. 435, 436) He stated that the garment might have had a placebo effect. (Tr. 437)
Dr. Conte stated that the test subjects were not paid. However, the consent forms indicated that the subjects' pictures might be used in Respondent's advertisements for which the subjects would be compensated. He acknowledged that this might have motivated the subjects to eat less during the test. (Tr. 443)
On redirect examination, Dr. Conte stated that patients who wore the garment sweated more but also might have been psychologically motivated to eat less. (Tr. 467) Dr. Conte further stated:
"Now, I realize that there are a lot of weaknesses in a test like this here. The first one that I am going to say is because this was only on five people. I would have loved to do this on 100 people. Then it would be more meaningful." (Tr. 483)
Dr. Susan Baturay testified for Respondent concerning a test that she performed on Slumbertrim at Respondent's request. I determined at the hearing that Dr. Baturay was not qualified to testify as an expert in physiology, sweating, nutrition or weight loss. Her experience was essentially in industrial product development. (Tr. 210-240)
Dr. Baturay stated that in 1979 Respondent requested her firm to test the Slumbertrim garment. (Tr. 241) She stated that by using wire ring templates she made girth measurements at consistent locations. (Tr. 245-255) She measured with a flexible, narrow steel tape. (Tr. 255) She stated that she and her assistant, Susan Anderson, did the testing on subjects who lived or worked near her firm's office. (Tr. 258) The subjects were given no instructions regarding eating habits. (Tr. 259) The subjects were measured between nine and ten A.M. and again between five and six P.M. (Tr. 260)
Dr. Baturay tested Slumbertrim for porosity and found that it was not porous. (Tr. 266) She stated that in a first test of ten subjects, nine lost weight. They averaged weight losses of from two to nine pounds during a five-day period while wearing the garment. Eight of the ten subjects lost inches during the test. (Tr. 276, 277) Later, Dr. Baturay conducted a second test with 20 subjects. (Tr. 278) She stated that the average loss for all subjects was 4.9 pounds. (Tr. 293)
On cross-examination, Dr. Baturay stated that before being weighed and measured, the "panelists" were not asked whether they had recently moved their bowels or urinated, at what part of their menstrual cycle the women were, whether they used diuretics, or whether the women took birth control pills. (Tr. 327, 328) However, she did make sure that the panelists were not taking diet pills or on a weight watchers type program. (Tr. 328)
Dr. Baturay stated that to be 95 percent "confidence level satisfactory", a panel should include a minimum of 20 to 30 panelists. If it had 100 or 1,000 panelists, it would be that much more accurate. (Tr. 342)
Dr. Baturay seemed to state that the group tested in R-4, the ten-person test, was 30 people at first and that 55 people were tested with respect to the garment overall. (Tr. 345) She also seemed to state that of the ten people in the test described in R-4, six were also included in the test described in R-5. (Tr. 346)
Dr. Baturay stated that her assistant, Susan Anderson, made about two-thirds of the measurements of the test subjects. (Tr. 283, 284) I indicated at the hearing that the weight of the evidence regarding these measurements was reduced by Respondent's failure to produce Susan Anderson as a witness. (Tr. 286)
At the hearing, Dr. Baturay promised to submit information subsequently as to the identity of the six people who participated in both the 10 person and the 20 person tests. (Tr. 349) Dr. Baturay did not furnish this information.
A. The Mail Order Sale of Slumbertrim
Pursuant to the parties' stipulation, I find that Respondent solicits money through the mail in connection with the sale of its product, Slumbertrim. (Tr. 2, 3)
B. The Representations Made By Respondent
I also find that Respondent makes the following representations, as alleged in paragraph II of the Complaint:
1. "That 'SLUMBERTRIM' when worn for one night while sleeping, will cause most users to lose eight pounds" (subpara A (1)(a)
This allegation is supported by the Judicial Officer's decisions in ISO-TONER PLAN, P.S. Docket No. 3/30 (1975) and WEIDER DISTRIBUTORS, INC., P.S. Docket Not. 3/27 (1974). In the letter 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 rader arises from the sum total of not only what is said but also of all that is reasonably implied'. The rods 'up to' could conceivably be construed to mean one ounce but not one rasonably 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."
This conclusion is reinforced by an examination of the relative size of the words in Respondent's advertisement. The fron page and the two inside pages of Respondent's four page advertisement (CX-1) contain words "Wake up tomorrow morning up to 8 pounds thinner." In the front page, except for the words "up to", all letters are the same large size. The letters of "up to" are one-eighth the size of all other letters in the phrase. (1/4 the height and 1/2 the width). Similarly, in the inside pages the letters of "up to" are approximately one-quarter the size of the other letters in the phrase. It seems obvious that Respondent intended to emphasize "8 pounds" and de-emphasize "up to" in that phrase in CX-1. I think that Respondent has accomplished that result. I find that the phrase conveys the impression to the average reader that most users will lose eight pounds after wearing Slumbertrim for one night.
2. That 'SLUMBERTRIM,' when worn for one night while sleeping, will cause most users to lose 7 - 1/2 inches of girth overall" (subpara. A (2) (a)).
The ISO-TENSOR PLAN and WEIDER DISTRIBUTORS, INC. cases similarly support this allegation. The front page and inside pages of CX-1 contain the words "WAKE UP TOMORROW MORNING up to 7 1/2 INCHES SLIMMER" and the letters of "up to" are one eighth the size of the other letters in the inside pages. My findings regarding the previous allegation also apply to this allegation.
3. "That the wearing of 'SLUMBERTRIM' on more than one night will have a cumulative effect on loss of girth and weight" (subpara. A (3))
At page 3 of CX-1, Respondent's advertisement reads:
"And that's just the start. After only 5 evenings, here are even more amazing results recorded on thrilled and delighted panelists:
SLUMBERTRIM AVERAGE LOSSES AFTER 5 NIGHTS"
I find that the conspicuous reference to more than one night in this advertisement implies that successive nights will build upon various results and that the effect of wearing the garment for more than one night will be cumulative.
4. "That 'SLUMBERTRIM' will cause loss of girth and weight ten times faster than crash dieting" (subpara. A (4).
This representation is made in several places in page 2 of CX-1. The first paragraph of the text states:
"Here's sensation reducing news] Science has developed the fastest easiest way to slash pounds and trim inches (up to 10 times faster than even the leading crash diets)."
At the lower left corner of the page the heading "NOW] LOSE WEIGHT WITHOUT DIETS, DRUGS, EXERCISES]" is followed by the phrase, "10 TIMES FASTER THAN LEADING CRASH DIETS". Also, in column 2, the advertisement states:
"...a consumer panel of both men and women enjoyed both inch and fluid losses 10 times faster, 10 times easier than the leading crash diet."
5. "That, by its reference of loss in inches, coupled with its failure to disclose clearly and conspicuously that any inch loss that may occur will be due to temporary loss of fluid which will be replaced when the user next ingests food or liquid, 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 (subpara. II B (1)).
When people desire to lose weight they do not desire that it be regained when they next ingest fluid. Although in several places, Respondent uses "temporary" in the advertisement, the use of that word does not nullify the other language such as "SLUMBERTRIM'S automatic inch and fluid reducing effectiveness" in column 2, page 2 of CX-1; "Men] Slumbertrim will work it's slimming magic just as quickly, just as effectively for you too]" in page 4 of CX-1; and " Y ou will be delighted at the amazing steps science has taken to help you win the battle over bulk" in CX-2, page 2. The average person, especially the average dieter, would know that weight loss is temporary in the sense that, absent care, it can be regained over a period of time. However, the words "effectiveness", "effectively", "magic", "amazing" and "win the battle over bulk" imply a remedy that will last longer than the next ingestion of food and drink.
6. "That, by its reference to loss from certain parts of the body, coupled with its failure to disclose clearly and conspicuously that any fluid lost through the wearing of the "SLUMBERTRIM" device will be drawn from the entire body, Respondent represents that the claimed loss will be taken selectively from the waist, hips, thighs, tummy, and derriere" (subpara. II B (2)).
The third paragraph in page 2 of CX-2 states:
"Called SLUMBERTRIM, this amazingly effective reducing garment automatically shrinks inches and reduces pounds by shedding excess fluid from waist, hips, thighs, tummy and derriere" emphasis in original
At page 3 of CX-1, Respondent's advertisement states:
"SLUMBERTRIM'S special design creates a 'thermalsauna-like' effect. It gently (and automatically) stimulates your mid-section (where garment is worn) into releasing fluid from thighs, hips, tummy, waist, etc."
The headline on that page contains the words, "Automatically shrinks 'mid-section'"
Also, the "Results Guaranteed" box in page 4 of CX-1 as well as the large paragraph near the bottom of page 1 of CX-2 contains similar language.
The emphasis upon these areas in Respondent's advertising supports this allegation.
C. The Truth or Falsity of Respondent's Representations
I find, as testified to by Dr. Frank, that the primary cause of excess human weight is the accumulation of fat and that, except for those who also suffer from certain types of heart, kidney or liver problems, fluid accumulation is not a major factor in excess human weight. I further find that it is unlikely that Slumbertrim will cause any person to lose more than three-quarters of a pound of fluids in one night, that this will cause that individual to be thirsty, and she soon will regain most, if not all, of this weight by drinking to satisfy her thirst. Similarly, any losses in inches through wearing Respondent's garment will be slight, much less than those represented, and most likely will be regained after drinking on the next day. Dr. Frank's testimony persuasively supported these conclusions and I further find that these views are in accordance with the consensus of medical opinion in the field of obesity treatment. (Tr. 57, 10) Dr. Conte did not dispute that Dr. Frank's views are in accordance with the consensus of informed medical opinion in that field. Dr. Conte's concluions essentially were based on the test results that he achieved and not on informed medical theory. Respondent's other witness, Dr. Baturay, is not an expert in the treatment of obesity.
RX-1, an article entitled, "Effect of Sweat Loss on Body Fluids" does not prove Respondent's weight and girth loss claims because the results in the experiments described in the article were obtained in a 80 oC sauna, which is equivalent to 180oF, and were obtained through mild exercise at 38oC or 100oF. In addition, the authors qualified their findings by stating, "Data on body fluids are difficult to interpret." RX-2, an article entitled, "Sweating: Direct Influence of Skin Temperature" similarly does not support Respondent's weight and girth loss claims. Here the subjects exercised, using a bicycle ergometer, at 36oC or 92oF, a situation far different from lying in bed in a much cooler room. Also, as Dr. Frank indicated, the authors at page 1466 cited a contradictory Benzinger study.
I did not find that Dr. Conte's studies and Dr. Baturay's studies overcame Dr. Frank's testimony. Dr. Frank testified that it would require scientifically controlled studies to demonstrate that Respondent's garment caused the results claimed. This would include using two groups of subjects - one group using Respondent's garment and the other group not using Slumbertrim. The groups should be of comparable size, age, sex, anatomical characteristics, and comparable water or edema retention characteristics. Neither Dr. Conte's not Dr. Baturay's tests involved controlled studies.
Both of these tests involved small groups of people. Dr. Conte tested five subjects. Four were patients. One was his nurse. Dr. Conte admitted that all five might have been motivated to eat less calories during the test. (Tr. 191) He stated that the fact that one patient menstruated during the test period could have affected her retention of water. (Tr. 193-195) Dr. Conte did not ascertain where in their menstrual cycles the other patients were during the test period. (Tr. 195) Dr. Conte agreed that a double-blind study is a preferred way of testing. (Tr. 371-378) He admitted that it is sometimes difficult to locate the illium in obese patients and the illium was used to determine thigh measurements. (Tr. 404)
Additionally, Dr. Conte rounded off measurements to the nearest pound and inch. Where an half pound or an half inch measurement was taken, it could have been rounded off either to the next lower or to the next higher full inch or pound, at the option of the investigator, without consistency, and without an indication as to which way and by how much the exact measurement was rounded off. Thus, a subject who weighed 144 5/8 pounds one day and 144 3/8 pounds the next would achieve an one pound weight loss in Dr. Conte's records. And even more shocking, someone who had the same weight of 144 1/2 pounds on 2 consecutive days could find his weight listed as 144 pounds one day and 145 pounds on the other day. (Tr. 408)
Dr. Conte admitted that he was not certain that the subjects were given the same instructions regarding breathing while they were measured in each instance. (Tr. 405) He admitted that the patient's desires to lose weight could affect their eating habits. Some of the data contained mistakes. Dr. Conte acknowledged that the graphs in pages 8 and 9 are confusin and convey the impression that some patients started at day eight. (Tr. 432, 433) He acknowledged that the garment might have had a placebo effect (Tr. 437) and that the subjects might have been motivated to lose weight by the indication in the consent form that they would be paid if their pictures were used in Respondent's advertisements.
Bristol Good, the subject who was also Dr. Conte's nurse, lost two pounds overnight before she wore the garment and gained a pound on the second night. Her notes indicated that she ate less during part of the time that she wore the garment. Helen Mehalik's day ten weight was 153 pounds in page 47 and ranged between 155 and 156 1/2 pounds in page 57, her own weight report. Although the background sheet showed that she lost one pound between day nine and ten, her own report showed that she gained one pound. According to her records she either lost no weight or gained a pound during the test period. Donna Trn stated that she was not as hungry during the test. Therefore, it is quite possible that she ate less than usual during the test. With respect to Marilew Wetzel (RS-3, p. 79), it is hard to understand the fact that during four successive nights before the test began her weight dropped five pounds overnight from 200 at night to 195 the next morning at but for some strange reason, on the morning at which the test began her weight did not drop but remained at 200. Cynthia Angeret lost two pounds before the test and gained one pound between days eight and nine while wearing the garment. (RX-3, p. 90)
Dr. Conte acknowledged that the test contained a number of weaknesses and he noted that five subjects constitutes an extremely small sample. He stated that he would have preferred a sample of 50 or even 100 people. (Tr. 483)
Dr. Baturay's test involved a larger sample of first 10 and later 20 people. But even these numbers did not approach the 50 to 100 subjects that Dr. Conte would have preferred for a more meaningful test. Approximately two-thirds of the Baturay test measurements were taken by Susan Anderson. Respondent was required to produce Susan Anderson. I stated that the weight of these test results would be greater if the person who did most of the testing was available for cross-examination. However, Respondent did not produce that witness. Dr. Baturay did not appear to have first-hand knowledge about many aspects of the tests. She was able to identify with certainty only four subjects that she personally measured. (Tr. 287) Of the ten people in the test reported in R-4, six were also in the test described in R-5. However, Dr. Baturay could not identify these six individuals. She promised to supply that information after the hearing (Tr. 346-349), but Respondent failed to fulfill that commitment.
Dr. Baturay took no baseline measurements to show the subjects' usual weight variations. Dr. Baturay testified that the subjects were anxious to lose weight. (Tr. 326) This could have caused them to consume less calories during the test. Neither Dr. Baturay nor Ms Anderson asked the subjects when they weighed and measured them, when the subjects had moved their bowels, when they last urinated, or in what part of their menstrual they were. (Tr. 328) They also did not determine whether the subjects were taking any medication, diuretics, or birth control pills. (Tr. 328)
As a result of these inadequacies in the tests, I found them insufficient to overcome the weight of informed medical opinion as testified to by Dr. Frank. This opinion was confirmed in some respects by Dr. Conte who stated that his views before he performed his five-person test were as follows:
"I looked upon, as a possibility, that these patients may lose some weight through perspiration."
. . . . .
"As far as whether inches would be lost, I had some doubts in this respect..."
. . . . .
"I was not at all convinced in my mind that these patients wearing this garment could lose inches while they were sleeping because I felt that their activities would be reduced." (Tr. 476, 477)
Even if Respondent's test results are accepted, they do not substantiate many of its representations. With respect to the representation that Slumbertrim will cause the average user to lose 4.9 pounds in one night, (subpara. II A (1)(b) of the Complaint), the average losses for the first night of use of the garment in the three tests were:
1. Dr. Conte's Test 1.2 pounds
(day 5 to 6)
2. Dr. Baturay's First Test 3.2 pounds
(RX-4)
3. Dr. Baturay's Second Test .68
Weighted Average of All Three Tests 1.5 pounds
As to the representation that Slumbertrim will cause the average user to lose 6.4 inches in girth overall (subpara. II A (2)(b) of the Complaint), the three tests show first night average losses as follows:
1. Dr. Conte's Test (RX-3), p.6, Table II)
(day 5 to day 6)
Hips 1 inch
Thighs no loss
Stomach 0.6 inch
Total 1.6 inches
2. Dr. Baturay's First Test (RX-4)
This shows only waist measurements. Seven subjects failed to lose waistline girth; subject
2 lost 2 1/2 inches; while subjects 7 and 8 lost 2 inches
Average Waist Loss 0.65 inches
3. Dr. Baturay's Second Test
Total inches lost from stomach, hips, waist, and thighs for 20 subjects after one night's use of
Slumbertrim - 13
I further find that Respondent's garment will not have a cumulative effect on weight loss. (subpara. II A (3) of the Complaint) I also credit Dr. Frank's testimony that, as alleged, any small weight loss through wearing the garment will be regained by eating and drinking the next day. (subpara. II B (1) of the Complaint) As indicated, Respondent's statistics and other evidence did not overcome Dr. Frank's testimony as to the weight of informed medical opinion.
I also find that the representation that Slumbertrim will cause loss of girth and weight ten times faster than crash dieting (subpara. II A (4) of the Complaint) is false. Dr. Frank testified believably that crash diets consist of 400 to 700 calorie diets, that the most successful way to lose weight is by ingesting less calories then the body needs, and that these drastic reductions in calorie intake can result in losses of as much as eight pounds in three dayss, and even 12 pounds in three days in very heavy persons. (Tr. 13, 54, 55)
I also find, based upon Dr. Frank's testimony, that any fluids lost by wearing Slumbertrim would be lost from the entire body and not selectively from the waist, hips, thighs, tummy and derrier. (Tr. 19) (subpara. II B (2) of the Complaint)
In the leading case, Donaldson v. Read Magazine, Inc., 333 U.S. 178 (1948), the Supreme Court stated that the purpose of mail fraud orders is to prevent future injuries to the public by denying the use of the mails to aid in fraudulent schemes. In determining whether an advertisement is misleading, a court must analyze the advertisement's impact upon an ordinary reader, not just upon educated or suspicious persons, since this law was enacted to protect trusting as well as suspicious people.
The Court held:
"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." Page 188.
Similarly, in Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746, 751 (S.D.N.Y. 1959), the Court quoted the following rule:
" E ven if an advertisement is so worded as not to make an express misrepresentation, nevertheless, if it is artfully designed to mislead those responding to it, the mail fraud statutes are applicable."
To the same effect, in Vibra Brush Corp. v. Schaffer, 152 F. Supp. 461, 465 (S.D.N.Y. 1957), the Court held:
"It is not each separate word of a clause here and there of an advertisement which determines its force, but the totality of its contents and the impression of the entire advertisement upon the general populace."
Similarly, in American Image Corp. v. United States Postal Service, 370 F. Supp. 964, 966 (S.D.N.Y. 1974), the Court held:
"The cases are clear that such advertisements are to be viewed not with a lawyer's eye to 'fine spun distinctions' but with an eye to their over-all effect on the average reader."
The courts have also held that proof of actual deception is not required and that intent to deceive can be implied from circumstantial evidence. Vibra Brush Corp. v. Schaffer,supra; G.J. Howard Co. v. Cassidy, 162 F. Supp. 568 (E.D.N.Y. 1958); Charles of the Ritz Dist. Corp. v. Federal Trade Commission, 143 F. 2d 676 (2d Cir. 1944); Ger-Ro-Mar Inc. v. Federal Trade Commission, 518 F. 2d 33 (2d Cir. 1975). In Charles of the Ritz, the Court stated, "That the Commission did not produce consumers to testify to their deception does not make the order improper, since actual deception of the public need not be shown in Federal Trade Commission proceedings." p. 680
Similarly, the Court helt in Howard, supra that a guarantee of a refund "does not necessarily disprove an intent to defraud." p. 572
Additionally, in Gottlieb v. Schaffer, 141 F. Supp. 7, 17 (S.D.N.Y. 1956), the Court stated, "Nor do the disclaimers inserted inconspicuously in the sales literature, unsay what is said elsewhere to make the sales propaganda appeal to the superstitious and the ignorant."
In United States v. One Device, Etc., 160 F. 2d 194, 199 (10th Cir. 1947) the Court held, "That these medical experts were competent and qualified to testify as to the matter in issue is clear. They were not disqualified merely because they had not used the device in question or had not seen it in operation... Being fully conversant...with the principles upon which this device operated, the testimony of these medical witnesses was competent and constituted substantial evidence."
In Original Cosmetics Products, Inc. v. Strachan, 459 F. Supp. 496, (S.D.N.Y. 1978) the Court cited Reilly v. Pinkus, 338 U.S. 269 (1949) in which it was held that the testimony of a government expert could rest on his professional knowledge and he did not have to personally experiment. The Court stated:
"In this case, it is clear that the evidence of a placebo effect of these products would not have altered the outcome of the hearing. Defendants correctly contend that if products are represented as causing a physical reaction when used, and this representation is false, the fact that they incidentally have a fvorable psychological effect does not vitiate the falseness of the representations." p. 506
In U.S. Health Club, Inc. v. Major, 292 F. 2d 665 (3rd Cir. 1961), the Court upheld the right of a witness to persuade by testifying as to the consensus of medical opinion and that his opinion is consistent with that consensus.
Based upon these legal principles and for the reasons previously stated, I find that Respondent, as alleged in the Complaint, has made the following false representations in its advertising and sale of its product, SLUMBERTRIM:
1. That "SLUMBERTRIM," when worn for one night while sleeping, will cause most users to lose eight pounds;
2. That "SLUMBERTRIM," when worn for one night while sleeping, will cause most users to lose 7-1/2 inches of girth overall;
3. That the wearing of "SLUMBERTRIM" on more than one night will have a cumulative effect on loss of girth and weight;
4. That "SLUMBERTRIM" will cause loss of girth and weight ten times faster than crash dieting;
5. That, by its reference to loss of inches, coupled with its failure to disclose clearly and conspicuously that any inch loss that may occur will be due to temporary loss of fluid which will be replaced when the user next ingests food or fluid, Respondent represents that the results enumerated in the preceding representations will be permanent, absent a change in the user's diet or exercise habits;
6. That, by its reference to loss from certain parts of the body, coupled with its failure to disclose clearly and conspicuously that any fluid lost through the wearing of the "SLUMBERTRIM" device will be drawn from the entire body, Respondent represents that the claimed loss will be taken selectively from the waist, hips, thighs, tummy, and derriere;
Therefore, I conclude that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by false representations in violation of 39 U.S. Code § 3005 and that a mail-stop order, substantially in the form attached, should be issued against Respondent.