In the Matter of the Complaint Against SLIMSUIT at New York, NY 10010 and at 175 Fifth Avenue New York, NY 10010 and at 507 Fifth Avenue New York, NY 10017 P.S. Docket No. 12/5; 12/09/81 Bernstein, Edwin S. APPEARANCE FOR COMPLAINANT: Hild a Rosenberg, Esq. Consumer Protection Division Law Department U.S. Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Jerold W. Dorfman, Esq. Friend, Dorfman and Marks 575 Madison Avenue New York, NY 10022 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 October 28, 1981. Dr. James F. Winchester testified for Complainant. No witnesses testified for Respondent.
I find that Respondent solicits remittances of money through the mail in connection with the sale of its product, Slimsuit. The parties stipulated to this in their written stipulation filed at the hearing and Complainant's Exhibits i through 3A support this conclusion.
I further find that Respondent's advertisements make the representations alleged in Paragraph III, subparagraphs A through G of the Complaint. Based upon Respondent's similar advertisements, Complainant's Exhibits (CX) 1, 2, 3 and 3A, the reasons for my findings are as follows:
A. The accumulation of fluids is a major cause of excess weight, in most overweight persons.
In explaining Slimsuit's workings, the advertisements state:
"Slimsuit works safely and naturally --using your body's own oxidation mechanisms to break down deposits of cellular fluids that causes sic excess weight and bloated flab." (Column 1, center.) Emphasis added.
The notion that fluid accumulation is a major factor in weight gain is strengthened by the advertisements' following references to Slimsuit's ability to eliminate fluids:
(1) "Lose 6, 12 and even 30 pounds of disgusting bloat and fluid." (Column 1, top.)
(2) "Slimsuit is scientifically designed to melt away inches of excess pounds and fluids off stomach, abdomen . . .." (Column 1, center.)
(3) " S slimsuit's millions of unique thermoelastic cells quickly melt away excess weight and fluid . . .." (Column 2, bottom.)
B. Wearing Slimsuit will cause a loss of weight, which will not be readily regained, and which will last for more than a 24 hour period.
By promising that Slimsuit will "keep s your weight down" and "once you have achieved your goals . . . maintain your desired shape," the advertisements suggest that weight loss achieved through Slimsuit will not be readily regained. This message is strengthened by the advertisements' assertion that Slimsuit is superior to reducing programs known to assist in permanent weight loss, such as diet or exercise, in such words as "nothing else can even compare." (Column 3.) The testimonial of the woman from Long Beach constitutes another assertion of the long lasting effects of the garment. She states: "I weighed 146 pounds --now I weigh 122. I wore size 12 --now I wear an 8. Everyone who sees me is amazed . . .." (Column 2, top.) emphasis added. I find that the average reader would infer from these statements that weight loss would be maintained for more than 24 hours.
Furthermore, Respondent's advertisements are devoid of any mention that weight loss caused by Slimsuit will be for a very temporary duration. As the Supreme Court held 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.
C. Wearing Slimsuit, without diet and exercise, is an effective weight reducing method for most overweight persons.
The box at the upper right corner of the advertisements states, "NO EXERCISE NO DIETING."
D. Slimsuit will cause more overweight persons to lose pounds and inches:
(1) as they go about their normal daily activities;
(2) without exercise;
(3) without diet; and
(4) "without any effort whatsoever."
In addition to stating "WITHOUT DIET, WITHOUT EXERCISE" the advertisements state "without any effort whatsoever" (bottom of Column 2); "without changing your eating habits or interrupting your daily routine" (Column 1, center); and "WHILE DOING YOUR DAILY CHORES" (heading at Column 1).
E. Wearing Slimsuit while maintaining one's normal activity level and without restricting one's caloric intake will cause, for most overweight persons:
(1) a loss of over 22 pounds;
(2) a loss of 6, 12 and even 30 pounds of bloat and fluid;
(3) a noticeable reduction in the stomach area after only a few days;
(4) a 2 to 5 inch loss off the waist;
(5) the disappearance of flab from the hips; and
(6) the slimming and shaping of the thighs.
As previously found, the advertisements state that their represented results can be accomplished without diet, without exercise, and without interrupting one's daily routine. The latter assertion represents that one's activity level may be maintained. The represented results include a loss of 22 pounds purportedly achieved by the woman from Long Beach, as being possible for most overweight persons. See Sarah Michaels, P.S. Docket No. 5/95, I.D. at 11 (1977). Affm'd P.S. Decision (1978). The other alleged representations are found at the top of the advertisements in the following language:
"Weight: Lose 6, 12 and even 30 pounds of disgusting bloat and fluid]
Belly: Noticeable reduction in only days]
Waistline: 2 to 5 inches disappear]
Hips: Flabby cushions disappear]
Thighs: Slimmer and shapelier]"
F. Wearing Slimsuit while sleeping will significantly contribute to any weight loss normally occurring during periods of sleep.
this representation appears prominently at the head of the advertisement. In the largest and boldest letters of the advertisement, the reader is promised: "LOSE WEIGHT WHILE YOU SLEEP]"
G. Once you have lost weight, wearing Slimsuit occasionally will "enhance and maintain your desired shape and figure . . . and prevent cellulose and sagging skin from forming."
This representation is found in the following language:
"Once you have achieved your goals --and lost those unwanted pounds and inches --wear it only from time to time --to enhance and maintain your desired shape and figure . . . and prevent cellulose and sagging skin from forming." (Column 1, bottom.)
I further find that Respondent's advertising representations are materially false. The sole witness in this case was Dr. James F. Winchester. I found Dr. Winchester to be a knowledgeable, truthful and reliable witness. He is an Assistant Professor of Medicine who specializes in Nephrology, the study of kidney functions and body fluid shifts. Dr. Winchester's curriculum vitae indicates a distinguished career in his field and a large number of published papers, including one concerning obesity (CX-6, publication No. 49). Dr. Winchester testified without contradiction that his testimony is in accordance with the consensus of informed medical opinion. The only evidence that Respondent offered were two articles elicited from Dr. Winchester. These articles were not relevant to Slimsuit. In both RX-1 and RX-2, the subjects wore heavy clothing and in RX-2 the subjects participated in physical exercise. The reasons for my findings are as follows:
A. The accumulation of fluids is a major cause of excess weight, in most overweight persons.
Dr. Winchester testified that, generally, an individual is overweight due to an increase in body fat (Tr. 20). Excess weight due to the accumulation of fluids signifies the presence of a disease of the crucial organs --the kidney, heart and liver (Tr. 25). Persons with this condition comprise an "extremely small percentage" of the overweight population (Tr. 25). In addition, persons who are obese and thus, comprise the majority of overweight persons, have proportionately less water weight than lean individuals (Tr. 24-25). Dr. Winchester's testimony clearly indicates that the accumulation of fat and not fluids is overwhelmingly the cause of excess weight.
B. Wearing Slimsuit will cause a loss of weight, which will not be readily regained, and which will last for more than a 24 hour period.
Dr. Winchester testified that Slimsuit will not cause any reduction in body fat (Tr. 24). Slimsuit would, however, induce sweating by raising the skin temperature (Tr. 33, 53). Such fluid loss, however, is a temporary phenomenon for the healthy individual (Tr. 26, 31, 33).
Complainant's Exhibit 7, "Daily Water Balance In Man," was prepared by Dr. Winchester for his forthcoming book (Tr. 26-28). He described this chart as illustrating the "physiologic fact that water gain is offset by water loss and that the body maintains a constancy in water control." (Tr. 26.) If the volume of fluid lost by sweating increased the total on the losses side of the chart, one would also observe an increase on the gain side (Tr. 31). Fluid gains occur by consumption of beverages, by eating foods which contain water, and by the breakdown of these foods producing additional water (Tr. 26-27; CX-7).
Dr. Winchester described the physiological means by which the body ensures that fluids lost through sweating are replenished. The key to this mechanism is a change occurring in plasma osmolality, a measurement which depends on the sodium concentration of the body's fluids (Tr. 32). When a person sweats excessively, his plasma osmolality increases (Tr. 29). This stimulates the production of antidiuretic hormone (Tr. 29). When an one to two percent increase in plasma osmolality occurs, a thirst sensation is produced, and the individual will drink (Tr. 30). To increase the plasma osmolality to the level necessary to induce thirst, an individual need only lose .77 pounds of fluid (Tr. 33, 44). Dr. Winchester estimated that the individual would replace this fluid within one to two hours (Tr. 33-34). Even a fluid loss as great as 22 pounds would be replenished within 12 to 24 hours (Tr. 35). Failing to replace fluid losses by drinking or eating is not an option for the individual who wishes to remain alive and healthy (Tr. 58).
C. Wearing Slimsuit, without diet and exercise, is an effective weight reducing method for most overweight persons.
Since the source of excess weight for the vast majority of persons is excess fat, an effective weight reducing program must reduce a person's fat content (Tr. 20, 21). The medically accepted treatment for obesity is three-part: diet, exercise and behavior modification by means of follow-up procedures (Tr. 20-22). The program must address itself to the individual's propensity to overeat, one of the most common causes of obesity (Tr. 20). Dr. Winchester emphasized the importance of follow-up to ensure compliance with the program, a factor which was found to be key in a study he undertook on the subject of reduction of obesity and hypertension (Tr. 10-11, 22).
Dr. Winchester testified that the wearing of Slimsuit has no effect on the reduction of fat in the body (Tr. 24). Dr. Winchester explained that Slimsuit's "major effect is going to be increasing local skin temperature" and not raising the core or internal temperature which is necessary to accelerate body metabolism (Tr. 53, 56). The Slimsuit plan expressly excludes the traditional elements of a weight reduction program which are known to cause weight loss: exercise, diet and a change in eating habits. (E.g. CX-3, Box at top of page and middle of first column.) Not only, then, does the Slimsuit plan fail to address the prime cause of excess weight --excess fat --but it also discourages use of methods which do.
D. Slimsuit will cause most overweight persons to lose pounds and inches:
(1) as they go about their normal daily activities;
(2) without exercise;
(3) without diet; and
(4) "without any effort whatsoever."
Dr. Winchester testified that Slimsuit would have no effect on an individual's weight and girth because any fluid loss induced by sweating would be compensated by a fluid intake (Tr. 33). A loss of less than a pound of fluid (.77 lb) would be sufficient to turn on the person's thirst mechanism (Tr. 33). Since the person is eating and drinking normally, the fluid would be readily replenished (Tr. 37).
E. Wearing Slimsuit while maintaining one's normal activity level and without restricting one's caloric intake will cause, for most overweight persons:
(1) a loss of over 22 pounds;
(2) a loss of 6, 12 and even 30 pounds of bloat and fluid;
(3) a noticeable reduction in the stomach area after only a few days;
(4) a 2 to 5 inch loss off the waist;
(5) the disappearance of flab from the hips, and
(6) the slimming and shaping of the thighs.
I find that, as testified to by Dr. Winchester, a loss of 22 pounds would be highly unlikely (Tr. 35). Such loss could not be a fat loss since Slimsuit does not promote fat reduction (Tr. 24); moreover, fluid losses would be replenished in 12 to 24 hours (Tr. 35). The parties agreed that "bloat" is synonymous with "fluid." As previously found, any fluid and bloat loss would be rapidly replenished.
With respect to the representations that inches, flab, and size reductions, and slimming and shaping will result to specified body areas by wearing Slimsuit, Dr. Winchester testified persuasively that sweat fluid comes from the entire body and not just from particular areas (Tr. 35). Therefore, Slimsuit would not reduce the size of a particular part of the body (Tr. 37). Furthermore, as Dr. Winchester testified, such fluid losses would be rapidly replaced (Tr. 37). Dr. Winchester specifically testified that Slimsuit would not result in a two to five inch loss from the waist (Tr. 38) and that the suit would not shape and slim the wearer's thighs (Tr. 38). Assuming that "flab" means "fat," Dr. Winchester stated that Slimsuit would not cause the disappearance of flab from the hips (Tr. 49-50). If "flab" means water, as previously found, water loss through sweating would not be localized and would be quickly regained.
F. Wearing Slimsuit while sleeping will significantly contribute to any weight loss normally occurring during periods of sleep.
I find that, as Dr. Winchester testified, the body's metabolism and sweat production is at its lowest level during sleep and, therefore, Slimsuit would only have a minimal effect in promoting any additional fluid loss due to sweating during that time (Tr. 38).
G. Once you have lost weight, wearing Slimsuit occasionally will "enhance and maintain your desired shape and figure . . . and prevent cellulose and sagging skin from forming."
Wearing Slimsuit is of little or no benefit to the individual who is attempting to maintain her shape and figure (Tr. 39). Furthermore, Slimsuit will not prevent the formation of cellulose (Tr. 39). As Dr. Winchester explained, cellulose is a plant carbohydrate which is not readily metabolized, but is eliminated through the stool (Tr. 39).
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. Donaldson v. Read Magazine, Inc. supra; G. J. Howard Co. v. Cassidy, 162 F. Supp. 568, 572 (E.D. N.Y. 1958). What has been omitted and what may be reasonably implied from the advertisement are considered in assessing its meaning. 333 U.S. at 188; Spiegel, 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 III, subparagraphs A through G, of the Complaint.
4. The representations specified in Paragraph III, subparagraphs A through G, of the Complaint are materially false.
5. 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. 1978); Wilmonth Products, P.S. Docket No. 6/46 at 7 (1979). Respondent did not produce any evidence that overcame Complainant's evidence.
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.