In the Matter of the Complaint Against THE NEW BODY BOUTIQUE, INC. also doing business as THE NEW BODY BOUTIQUE and as SHRINK-WRAP at 2105 Lakeland Avenue Ronkonkoma, NY 11779 and at P. O. Box 2481 Grand Central Station New York, NY 10163 and at 37 Eleventh Avenue Huntington Station, NY 11746 and at 7 Norden Lane Huntington Station, NY 11746 and at 801 Second Avenue Suite 705 New York, NY 10017 P.S. Docket No. 11/95; 11/23/81 Bernstein, Edwin S. APPEARANCES FOR COMPLAINANT: Hilda Rosenberg, Esq. H. Richard Hefner, Esq. Consumer Protection Division Law Department 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 August 17, l9 and 20, l981. Inspector Gilbert Lee Barta and Dr. William R. Ayers testified for Complainant and Ms. Mindy Berger and Dr. Arthur W. Faris testified for Respondent.
At the hearing, I reserved decision on two motions that Com plainant filed on August 5, l981. I now grant both. The first is to amend the caption to read "The New Body Boutique, Inc. also doing business as The New Body Boutique and as Shrink-Wrap" and to similarly amend the Complaint's introductory statement. Upon no opposition by Respondent and no showing of possible prejudice to Respondent, the motion is granted.
In the second motion, Complainant requested dismissal of Paragraph 2, subparagraph (e) of the Complaint, without prejudice. In Respondent's August 10, l981 Reply and at the Hearing (Tr. 43, 44), Respondent's counsel argued that this dismissal should be with prejudice. I find that a dismissal without prejudice is more appro private. A motion for a voluntary dismissal before trial is normally granted without prejudice. Federal Rules of Civil Procedure 41(a) (2). Furthermore, such a dismissal is consistent with the statutory purpose of 39 U.S.C. § 3005, the "prevention of future injury to the public." See: Donaldson v. Read Magazine, Inc., 333 U.S. 178, 184 (1948).
I find that Respondent solicits money through the mail in connection with the sale of its product, Shrink-Wrap, at the addresses listed in the caption of this proceeding. The testimony of Inspector Barta and several of Complainant's exhibits support this finding. My reasons are as follows:
1. 2105 Lakeland Avenue, Ronkonkoma, NY 11779. CX-1, J and N request that remittances for Shrink-Wrap be mailed to this address to New Body Boutique, Inc. CX-K and M request remittances for the product to be sent to "Shrink-Wrap" at the same address.
2. P. O. Box 2481, Grand Central Station, NY, NY 10163. CX-G and H request that remittances for Shrink-Wrap be mailed to New Body Boutique, Inc. at this address.
3. 37 Eleventh Avenue, Huntington Station, NY 11746. CX-E and F request that remittances for Shrink-Wrap be mailed to New Body Boutique, Inc. at this address.
4. 7 Norden Lane, Huntington Station, NY 11746. CX-A, B, and C prove that New Body Boutique requested mail remittances for Shrink-Wrap in connection with this address.
5. 801 Second Avenue, Suite 705, New York, NY 10017. In response to CX-B, an advertisement for 7 Norden Lane, the Postal Service made a test purchase (CX C-1-5. Tr. 7-10). A card arrived in an envelope with the return address of The New Body Boutique, 801 Second Avenue, Suite 705, New York, NY 10017 (CX C-7, Tr. 12). No other address for New Body Boutique was indicated on either the card or envelope. When the Postal Service sent the requested amount to the Second Avenue address, it received the Shrink-Wrap product (Tr. 14, 15). Additionally, CX C-6 indicated that various financial aspects in connection with processing of Shrink-Wrap mail orders are handled through the Second Avenue address. Although Ms. Berger testified that since July 1981, a month before the Hearing, orders were normally processed at the Lakeland Avenue address, this is an extremely recent change. I find that there are sufficient mail order contacts with respect to the sale of Shrink-Wrap for the Second Avenue address to warrant the inclusion of that address in this proceeding.
I also find, except for the dismissed subparagraph (e), that Respondent's advertisements make the allegations contained in Paragraph 2 of the Complaint, as amended, for the following reasons:
(a) Within 24 hours, the Shrink Wrap will cause a net loss of 2-3 inches fro the user's waist and 2-3 inches from the user's hips.
(b) Within one week, the Shrink Wrap will cause a net loss of 4-6 inches from the user's waist and 4-6 inches from the user's hips.
Respondent's advertisements at CX-E and G contain a heading "You Can Lose 2-3 Inches in 24 Hours]" followed by the words "That's right] If you had the SHRINK-WRAP System right now, you could lose 2-3 unwanted, unsightly inches from your waist and hips TODAY] 4-6 inches THIS WEEK] Other of Respondent's advertisements employ similar language (CX-A, B, C-3, J, K, M and N).
(c) In accomplishing the loss described in (a) and (b), the Shrink-Wrap does not merely shift or compress unwanted weight, but actually rids the body of it.
This subparagraph was so amended at the hearing at Respondent's request (Tr. 47, 48). This allegation is supported by the words "Girdles just squeeze it in. SHRINK-WRAP takes it off" in several of Respondent's advertisements. (CX-A, B, C-3, E, G, J, K, M and N)
(d) The Weight lost through use of the Shrink Wrap will not be regained within several hours.
This subparagraph was also amended at the hearing at Respon dent's request (Tr. 49).
Respondent's complete omission of any indication that weight loss caused by Shrink Wrap will be of a very 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, supra:
"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. P. 188 emphasis added ."
The average reader has no reason to believe that losing pounds and inches through use of Shrink Wrap is any more temporary than reducing weight by restricting caloric intake through dieting, or by increasing caloric expenditure through exercise.
This representation is also conveyed by such phrases as "...after you lose a few inches, SHRINK-WRAP adjusts automatically to help you lose more" in Respondent's advertisements at CX-A, B, C-3, E, G. J, K, M and N; and "you can use it as often as you need to keep those inches off" in CX-A, B, C-3, E, G, J, M and N. Additionally, two testimonials also represent the notion of more than a very temporary loss. These are "What can I say, I'm a new woman" by Ms. Fair and "the weight began to DISAPPEAR" by Mrs. Cable in CX-K.
(f) Shrink Wrap will "make use of your body's own heat and concentrate it to melt away inches in areas of specific fluid retention like the waist and hips."
This is a direct quotation from the advertisements at CX-A, F, H and I. The representation also appears in Respondent's other advertisements in similar language. For example, CX-K states: "Now, you can use your body's own heat to melt away inches in areas of specific fluid retention like the waist and hips."
(g) Shrink Wrap is an effective means of reducing obesity without diet or extensive exercise.
Respondent's pound and inch loss claims in every advertisement indicate to the average consumer that Shrink Wrap is an effective means of reducing obesity. The before and after pictures and various testimonials in CX-K, M and N reinforce this message. The phrases "Trim Waist & Hips Scientifically Without Dieting" in CX-E, G. J, M, and N; "Trim Waist Scientifically Without Starving" in CX-K; and similar language in CX-A also represent that dieting is not necessary.
Additionally, there is no indication in any of the advertise ments at CX-M, J, N, G, E and K that extensive exercise is required in order to lose weight through the use of Shrink Wrap. In some advertisements, Respondent merely mentions in passing the five minute exercise program which will be received with the product. By suggesting that the type of activity which may be engaged in while wearing the belt includes "doing housework, office work or even jogging," Respondent reinforces the impression that extensive exercise is not essential to Shrink Wrap's effectiveness. (e.g., CX-M)
In CX-F, H, and I, Respondent compares the working of the Shrink Wrap to the wet suit worn by divers. These advertisements explain that Shrink Wrap, like the wet suit, concentrates the body's own heat and the "RESULT - MORE Lost Pounds and More Inches." This indicates to the consumer that although exercise will augment the weight loss caused by Shrink Wrap it is not a prerequisite to the effectiveness of the garment.
I further find that all of the above representations are materially false. I accorded a great deal of weight to the testimony of Dr. William R. Ayers. Dr. Ayers is Medical Director of the Georgetown University Diet Management Clinic. He has substantial experience in treating overweight persons and has written and lectured extensively on the subject of weight reduc tion (CX-L, Tr. 73-75). I believe that, as testified to by Dr.Ayers, his testimony was in accord with the consensus of informed medical and scientific opinion in the field of obesity. (Tr. 103) While Respondent's expert, Dr. Arthur W. Faris, is an experienced exercise physiologist, who testified in a forthright manner, I found him to be less experienced in the field of weight reduction and, therefore, generally less reliable. The reasons for my findings, that the representations in Paragraph 2, subparagraphs (a), (b), (c), (d), (f) and (g) are false, are as follows:
(a) Within 24 hours, the Shrink Wrap will cause a net loss of 2-3 inches from the user's waist and 2-3 inches from the user's hips.
(b) Within one week, the Shrink Wrap will cause a net loss of 4-6 inches from the user's waist and 4-6 inches from the user's hips.
I found persuasive Dr. Ayers' unequivocal testimony that Shrink Wrap would not produce these represented inch losses within either 24 hours or one week (Tr. 98-100). Dr. Ayers testified that the belt worn while engaging in the exercise in Respondent's instruc tions would have a negligible effect on fat loss (Tr. 89) and on weight loss in general (Tr. 100, 150). He testified that loss through perspiration while wearing Shrink Wrap would be "very minimal." (Tr. 121).
Dr. Faris described a test that he performed on two young men, 20 and 22 years of age, one month before the hearing. He took their weight and skin fold thickness measurements before and after 15 minutes of wearing Shrink Wrap (Tr. 184). Their weights were down by two and one-half or two and three-quarter pounds and their waist circumferences decreased by one inch and one-half inch (Tr. 188-189).
Although his data reflects a one-half to one inch girth reduction in 15 minutes, Dr. Faris was apparently reluctant to extrapolate from these measurements to determine whether a two to three inch girth loss would occur within 24 hours or a four to six inch reduction would result after one week. (Tr. 207) Instead, he said "I did not measure so I don't know. I would say that it's possible." (Tr. 207)
The test in general and the girth measurement in particular are insufficient to prove the ability of the garment to produce the inch losses claimed. One serious problem with Dr. Faris' data is that no statistical significance can be attached to it because only two subjects were used. The fact that the university's computer program, which performs the statistical analysis, required at least six subjects, is some indication that generally this number is a minimum from which statistical significance may be assumed (Tr. 211). Although Dr. Faris made some attempt to minimize bias, he readily admitted that this was not a controlled double-blind test (Tr. 183). Also he did not take measurements of subjects not wearing the belt under the same conditions as those who wore it.
Dr. Faris made no pretenses about the fact that his data was not determinative as to whether Shrink Wrap actually causes weight or girth reduction. He stated that he has no intention of submitting his test to a scientific journal in the form of an article (Tr. 193). He further admitted that a closer examination of factors which may have influenced his data is necessary (Tr. 193).
(c) In accomplishing the loss described in (a) and (b), the Shrink Wrap does not merely shift or compress unwanted weight, but actually rids the body of it.
I find, as Dr. Ayers testified, that this garment would not rid the body of the weight located in the hips and waist area in order to accomplish the girth loss claimed by Respondent (Tr. 100). I also accept his testimony that any fluid lost through perspiration will be very minimal and would ultimately come from the total body water, not exclusively from the mid-abdominal area (Tr. 91-92). Thus, while the belt would constrict the mid-abdominal area causing a thinner appearance, it would not actually rid the body of weight.
I further find, as testified to by Dr. Ayers, that Shrink Wrap would not contribute significantly to any reduction in girth which might result from Respondent's five minute exercise program by means of caloric expenditure (Tr. 89).
(d) The weight lost through use of the Shrink Wrap will not be regained within several hours.
Dr. Ayers stated that any weight loss caused by Shrink Wrap would be very transient and would be replaced within a matter of hours (Tr. 100-101). He qualified his remark indicating: "Again I do not believe appreciable weight loss will happen with the simple wearing of this garment." (Tr. 100-101)
Dr. Ayers explained that the body's physiologic mechanisms are maintained at a status quo or homeostasis (Tr. 94). Any source of water taken into the body would replenish the fluid lost (Tr. 94). Thirst is one sensation which ensures that the body maintains a sufficient level of fluids (Tr. 93). When the total body water is lowered below a certain level, which varies with each individual, the thirst sensation is triggered, encouraging the individual to drink (Tr. 93-94). Water may, however, be obtained by the body from other sources (Tr. 94). Dr. Ayers has observed water loss occurring during the initial period of a caloric restriction program or diet and indicated that this "so-called water weight loss is replenished and is not permanent." (Tr. 95)
Dr. Faris' experiment supports Dr. Ayers' view. Dr. Faris measured a two and one-half or two or three-quarter pound loss in 15 or 20 minutes (Tr. 188). Yet, only one hour after drinking, the weight of his subjects almost completely returned to that measured before the garment was worn. The subjects had gained two pounds out of the original two and one-half or two and three-quarter pounds lost (Tr. 231, 191). Dr. Faris did not take any additional weight measurements after the one hour period (Tr. 232). Dr. Faris conceded that when a football player loses eight to ten pounds of weight during a game, he will regain that weight by the next morning if he drinks fluids (Tr. 231).
(f) Shrink Wrap will "make use of your body's own heat and concentrate it to melt away inches in areas of specific fluid retention like the waist and hips."
Dr. Ayers specifically acknowledged that this claim is false (Tr. 101). His general explanation of sweat physiology demonstrates the inaccuracy of this statement. Although the temperature may rise in areas underneath the garment, this is not due to the garment's ability to collect all the body's heat and focus it in one area. Furthermore, the heat generated is not employed for the removal of the excess weight or inches around the waist and hips (Tr. 184, 90-91, 121). Nothing is "melted away," nor does the heat cause any chemical reaction which eliminates girth. The body does, however, attempt to dissipate the heat produced through sweating. Although the sweat glands located in the mid-abdominal area may be generating more sensible water on that skin surface, the water does not originate in the waist and hips. It is drawn from the total body water (Tr. 88, 91, 121).
(g) Shrink Wrap is an effective means of reducing obesity without diet or extensive exercise.
Obesity, caused by the excess accumulation of fat, is diminished by reducing the number of calories taken in below what is necessary for daily maintenance (Tr. 75, 78). The metabolic system turns to stored calories and burns fat to meet the individual's maintenance requirements. Dr. Ayers described Respondent's five minute exercise program as consisting of mild exercise which would consume a small though measurable amount of calories (Tr. 89). Dr. Ayers noted that Shrink Wrap itself would not contribute measurably to energy expenditure caused by the exercise (Tr. 89).
The generally accepted treatment for obesity is diet, exercise and behavior modification (Tr. 76-80). The latter is necessary to alter eating habits so that weight loss may be maintained (Tr. 77, 79, 80). Dr. Ayers stated that Shrink Wrap is not an effective means of reducing obesity without diet or extensive exercise (Tr. 101).
Although Dr. Faris has cited support for the proposition that increasing caloric consumption by exercise alone will result in long term losses in body weight, has not adequately explained how the Shrink Wrap garment might contribute to such caloric consumption (Tr. 246-249). Dr. Faris hypothesized that Shrink Wrap would cause an isometric effect reaching 60% of the maximum muscle contraction and thereby, create anaerobic conditions in those muscles (muscular efforts performed in the absence of oxygen). (Tr. 179, 189, 243) The anaerobic conditions increase body metabolism as well as the metabolic after-effects, i.e., metabolism after cessation of activity (Tr. 177-178, 179, 181). Although this would seem to be very desirable for inducing weight loss, Dr. Faris went on to explain why it was not. He stated:
A naerobic activities are not recommended for the reduction of body weight because they cannot be maintained over sufficient lengths of time to burn calories in sufficient numbers to result in a significant decreases in body fat. (Tr. 255)
Anaerobic activity can only last forty seconds while aerobic activity can go on indefinitely (Tr. 253). Dr. Faris described all or most of Respondent's five-minute exercise program as consisting of aerobic activity (Tr. 255, 256).
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 intelligency, would understand from viewing the advertisement as a whole. Donaldson v. Read Magazine, Inc., 333 U.S. 178, 189 (1949); G. J. Howard Co. v. Cassidy, 162 F. Supp. 568, 572 (E.D.N.Y. 1958). What has been omitted and what may be reason ably implied from the advertisement are considered in assessing its meaning. 333 U.S. at 188; Spiegal, Inc. v. F.T.C., 411 F.2d 481, 483 (7th Cir. 1969).
3. The average overweight person reading Respondent's advertisements, would interpret them substantially as characterized in Paragraph II, subparagraphs (a) through (d), (f) and (g) of the Complaint, as amended).
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. l939); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746, 751 (S.D.N.Y. 1959).
5. Respondent's allegedly recent inclusion of a sample diet, does not alter the falsity of the representations it make, because the advertisements indicate that dieting is unnecessary, and that the garment, itself, will achieve the results promised. Similarly, Respondent's inclusion with the product of admonitions to refrain from drinking for several hours and to follow the exercise plan more often, does not negate the falsity of its claims because the adver tisement does not mandate these actions. See, Joe Weider, P.S. Docket No. 2/74, Initial Decision at 9-11 (1974); Ama-Tol Industries, P.O.D. Docket No. 2/266, Departmental Decision at 8-9 (1968).
6. A medical expert need not test Respondent's product in order to assess its effectiveness, but may rely on his professional knowledge and experience. Reilly v. Pinkus, 338 U. S. 269 (1949); Figure Dynamics, P.S. Docket No. 10/8, Initial Decision at 24 (August 24, l981); Skinny Suit, P.S. Docket No. 3/44, Postal Service Decision at 6-13 (1976).
7. The representations specified in Paragraph II, subpara graphs (a) through (d), (f) and (g), of the Complaint, as amended, are materially false.
8. 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); S.E.C. v. National Student Marketing, 457 F. Supp. 682, 701 n. 43 (D.C. l978); Wilmont Products, P.S. Docket No. 6/46 at 7 (1979).
9. Respondent did not go forward with competent, credible proof that overcame that of Complainant.
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, substan tially in the form attached, should be issued against Respondent.