SPECIALTY SALES CO. 130 Buena Vista Avenue at Yonkers, New York 10701 P.S. Docket No. 11/79 October 16, 1981 Bernstein, Edwin S. APPEARANCES FOR COMPLAINANT: H. R ichard Hefner, Esq. Hilda Rosenberg, Esq. Consumer Protection Division Law Department U.S. Postal Service Washington, DC 20260-1100 APPEARANCE FOR RESPONDENT: Lee H. Harter 2256 Van Ness Avenue San Francisco, CA 94109 BEFORE: Judge Edwin S. Bernstein
Complainant, United States Postal Service, alleged and Respondent denied that Respondent is engaged in conducting a scheme to obtain money through the mail in violation of 39 United States Code § 3005. At the August 17, 1981, hearing, William R. Ayers, M.D., testified for Complainant. No one testified for Respondent.
The parties stipulated and I find that Respondent solicits money by mail in the sale of its product Sauna-Slimmer (Tr. 6).
Paragraph III of the Complaint alleged that Respondent made the following representations in its advertisements:
A. "Sauna-Slimmer will rid your body of fat located in the area of your waist and stomach."
B. "Sauna-Slimmer will rid your body of water weight located in the area of your waist and stomach, for more than a temporary period."
Complainant also alleged that these representations were false.
By motion filed August 5, 1981, Complainant requested that a third allegation be dismissed without prejudice. In a memorandum of opposition filed on August 10, 1981, and at the hearing, Respondent argued that this dismissal should be with prejudice. I reserved decision on the motion at the hearing. I now grant the motion to dismiss without prejudice.
I further find that Respondent's advertisements (CX-1, 4, 11 and 12) make the representations alleged in paragraphs III A and B of the Complaint. The advertisements first state in large, bold letters: "Reduce Waist and Stomach Bulges in 3 Days." This indicates to the reader that Sauna-Slimmer will be effective in weight and inch reduction. The body of the advertisement specifies how this loss will be accomplished. The second paragraph cites the elimination of fat as one method: "Other 'trimmers' only hide the fat--Sauna-Slimmer gets rid of it. (It's sic SCIENTIFIC THERMAL DESIGN concentrates it's sic slimming action on problem fatty areas." The bottom of the first paragraph refers to another method: "Then as you go about your regular routine, Sauna-Slimmer's unique massaging effect promotes water loss . . ."
Respondent's advertisements also contain more general language which I find that the ordinary consumer reasonably could conceive as references to either water or fat loss:
(1) "Lose Unwanted Inches" (subheading)
(2) "Now you can quickly trim embarrassing bulges" (paragraph 1)
(3) "shrinks unsightly bulges" (paragraph 1)
(4) "most natural method for losing inches" (paragraph 2)
(5) "If unwanted inches do not disappear, simply return it for a full refund." (paragraph 3)
Respondent's complete and material omission of any indication that water loss caused by Sauna-Slimmer will be of a very temporary duration misleads the reader into believing otherwise. The Supreme Court expressed the principle that the omission of information can be extremely misleading in Donaldson v. Read, 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 water weight through the use of Sauna-Slimmer is any more temporary than reducing weight by restricting caloric intake or dieting. When the advertisement states that Sauna-Slimmer promotes water loss, it would be quite reasonable for the reader to surmise that he will not readily regain it by drinking one or more glasses of water.
I further find that the representations contained in Paragraph III, subparagraphs A and B, are materially false.
Dr. William B. Ayers is an expert in the field of obesity. As Medical Director of the Georgetown University Weight Management Clinic, he has had extensive experience treating obese patients (Tr. 10). Dr. Ayers explained that obesity, defined as an increase in body weight due to an excess of stored fat, is primarily caused by overeating (Tr/ 11).
Dr. Ayers testified that the wearing of Sauna-Slimmer would not rid the body of fat located in the area of the waist and stomach (Tr. 18, 20, 33). He also unequivocally stated that the Sauna-Slimmer would not rid the wearer of water weight located in the area of the waist and stomach for more than a temporary period (Tr. 18).
Dr. Ayers explained that the garment's constricting force would cause excess fluids to be displaced either above or below the belt (Tr. 24, 27). However, Dr. Ayers estimated that in less than an hour from the time the belt was removed these fluids would return to their original locations (Tr. 34). He emphasized that the belt's constricting affect would not cause the fluids to leave the body but merely to relocate temporarily (Tr. 33, 36, 45).
Dr. Ayers testified that in his opinion the garment would cause the loss of possibly a quarter cup of water due to perspiration (Tr. 33). However, he testified that this water soon would be replenished (Tr. 19-20). When a fluid loss is experienced, the thirst mechanism is triggered, causing the individual to drink liquids (Tr. 19, 39). Dr. Ayers further explained that the body is set to maintain a balanced system and will replenish fluid losses by retaining more ingested water than usual to make up for a deficit in the total body water (Tr. 19, 33, 39).
Dr. Ayers further testified that his views are consistent with the consensus of informed medical opinion (Tr. 20). I find this undisputed testimony to be credible and reliable.
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, at 188 and 189.
3. The average overweight person reading Respondent's advertisements would interpret them substantially as characterized in paragraph III, subparagraphs A and B of the Complaint.
4. A promise to 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).
5. The representations specified in paragraph III, subparagraphs A and B of the Complaint are materially false.
6. Complainant has established its case by a preponderance of the reliable and probative evidence of record. S.E.C. v. Savoy Industries, 587 F.2d 1149, 1168 (D.C. Cir. 1978); Wilmont Products, P.S. Docket No. 6/46 at 7 (1979).
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.