In the Matter of the Complaint Against FORMULA-12 CREME at P. O. Boxes 9669 and 10064 and at 470 E. Paces Ferry Rd., Atlanta, GA 30347, AMERICAN HEALTH PRODUCTS and P. O. Box 9669, Atlanta, GA 30319, BRASWELL, INC. at P. O. Box 10064, Atlanta, GA 30319, COSVETIC LABS, or any variation thereof at P. O. Box 95545, Atlanta, GA 30347, QUEST RESEARCH at P. O. Boxes 49087, 49303 and 49024, Atlanta, GA 30329 and at P. O. Box 10225, Atlanta, GA 30319 P.S. Docket Nos. 9/129, 9/130, 9/131, 9/132, 9/133 May 20, 1981 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: Daniel S. Greenberg, Esq. Consumer Protection Division United States Postal Service Washington, DC 20260 APPEARANCES FOR RESPONDENT: John M. Creger, Esq. H. Robert Ronick, Esq. Katz, Paller & Land 470 E. Paces Ferry Road Suite 2000 Atlanta, GA 30363
These proceedings were initiated by Complaints filed on October 21, 1980, alleging that Respondent is in violation of 39 U.S.C. 3005 by engaging in schemes or devices for obtaining money or property through the mails by means of false representations concerning a product called "FORMULA-12 CREME."
The specific false representations alleged to be made in Respondent's advertisements are as follows:
(1) That application of "Formula-12 Creme" will eliminate cellulite that is already present;
(2) That application of "Formula-12 Creme" will prevent formulation of cellulite.
Respondent filed answers to the Complaints, denying the making and the material falsity of the alleged representations and being engaged in violation of 39 U.S.C. 3005.
To obviate the necessity for repetition of the testimony and pleadings, these cases were consolidated by Order dated January 22, 1981.
On motion of Respondent the location of the hearing was changed from Washington, D.C. to Atlanta, GA, where it was held from January 26 through 30, 1981.
The parties have filed written argument and proposed findings of fact and conclusions of law all of which have been fully considered and, to the extent indicated, have been adopted. Otherwise, they have been rejected as unsupported by or contrary to the evidence or because of their irrelevance or immateriality.
1. Respondent, under the names and using the addresses shown in the captions of these proceedings, is engaged in selling a product called FORMULA-12 CREME and obtaining money or property therefor through the mails. (CX-81 through CX-91; CX-304; Tr. 188-213)
2. Attached hereto as Exhibits A through C are typical examples of Respondent's advertisements for FORMULA-12 CREME.
3. Respondent's answers in these proceedings denied the making of the representations alleged in the Complaints. At the hearing Complainant placed in evidence Respondent's advertisements for the product. Complainant's proposed findings of fact set forth in detail the language therein which it claims makes the representa- tions alleged. Respondent has not offered evidence, argument, or proposed findings of fact and conclusions of law that its adverti- sing does not make such representations. On this issue its defense is confined to the argument that the representations made are either not false or, if false, are not materially so. On this state of the record the making of the representations as alleged in the Complaints is treated as not contested.
4. Complainant called as an expert witness Dr. William Ayers, a medical doctor, board certified in the field of internal medicine. At the time of the hearing he was Assistant Dean for Curriculum and Associate Professor, Departments of Medicine and Pediatrics at the Georgetown University School of Medicine, Washington, D.C. Of particular significance in these proceedings, Dr. Ayers has been since 1978 Medical Director of the Georgetown Diet Management Program. He spends about 20% of his time on the Diet Program, establishing procedures to be followed and furnishing direct medical care to about 100 patients, mostly obese. Additionally, Dr. Ayers has been, since 1977, Director of the Introduction to Clinical Science course for freshmen and sophomore medical students. In this capacity he has overall planning responsibility for the clinical nutrition segment of the course and, additionally, lectures on the medical management of obesity. Dr. Ayers has not used in the treatment of obesity any of the products involved in these proceedings.
5. Respondent's expert witness, Dr. J. T. Cooper, a medical doctor, did not testify as to FORMULA-12 CREME.
6. The ingredients and directions for use of the product are disclosed on its label and are as follows:
DIRECTIONS: Smooth a small amount of creme over the entire skin area you wish to tighten and tone. Apply a snug cotton garment over the area for one hour or longer. This creme may cause a warm sensation or cause the skin to be pink for a short time. NOT FOR USE ON FACE OR BREAST.
INGREDIENTS: Water, Glycerine, Spermaceti, Stearyl Alcohol, Cetyl Alcohol, Niacinamide, Capsicum, Seaweed Laminaria, Niacin, Sodium Lauryl Sulfate, Methyl Paraben, Propyl Paraben, Benzophenone-3, Fragrance, Color: FD&C Blue No. 1.
7. Dr. Ayers testified that "cellulite" is a descriptive term, rather than a disease state. It is used to describe the "orange- peel" appearance of skin, predominantly in women, in the areas of the lower abdomen, buttocks, and thighs. This dimpled appearance is caused by the protrusion of subcutaneous fat occurring where collagen, or fibers, connect the skin with the tissue underlying the fat. This fat, which is close to the surface, is in every way identical to fat in other portions of the body with regard to its metabolism. The distribution of collagen is different between male and female; hence cellulite is more apparent in women (Tr. 78, 79(.
He further noted that his testimony was supported by CX-259, an article entitled "So-Called Cellulite, an Invented Disease," appearing in the March, 1978, issue of the Journal of Dermatological Surgery and Gynecology . This article contains a schematic diagram of the sex-typical differences of the skin and underlying tissue he had discussed, and states that there is no cellulite in the absence of obesity (Tr. 80-83).
8. Dr. Ayers testified that the treatment of cellulite is the same as the treatment of other excess fat, i.e., reduction of caloric intake below the baseline and activity needs of the individual, so that stored fat is used as the energy source (Tr. 80, 81).
His testimony was supported also by CX-263, an article entitled "So-Called Cellulite," also appearing in the March, 1978, issue of the Journal of Dermatological Surgery and Gynecology . That article, in addition to supporting Dr. Ayers' testimony as to the cause of cellulite, concluded, as did Dr. Ayers, that weight reduction, exercise, and massage were the therapy for so-called cellulite (Tr. 81, 82).
When asked about the specific charges in the Complaint, Dr. Ayers testified that application of Formula-12 Creme will not eliminate cellulite that is already present (subparagraph II(1) of the Complaint), and will not prevent the formation of cellulite (subparagraph II(2) of the Complaint). This testimony appears at Tr. 82-83.
1. Respondent solicits remittances of money through the mails to the names and addresses shown in the caption hereof for its product FORMULA-12 CREME.
2. The meaning of advertising representations is to be judged from a consideration of an advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine , 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer , 152 F. Supp. 461 (S.D.N.Y., 1957); Borg-Johnson electronics v. Christenberry , 169 F. Wupp. 746 (S.D.N.Y., 1959). Express representations are not required. It is the net impression which the advertisement is likely to make upon purchasers to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it the mail fraud statutes are applicable. G.J. Howard v. Cassidy, 162 F. Supp. 568. See, also, Virginia State Board of Pharmacy v. Virginia Citizens Council, 425 U.S. 748 (1976).
3. Applying the foregoing standards, I find that Respondent's advertisements make the representations alleged in the Complaints.
4. Testing of the product is not required to sustain a complaint under 39 U.S.C. 3005. Without it, the opinion of a medical expert is sufficient evidence of falsity of advertising claims. Original Cosmetic Products, Inc. v. John Strachan and United States Postal Service , 459 F. Supp. 496 (S.D.N.Y., 1978) aff'd w/o Op. 2d Cir., 78-6165, 4/30/79.
5. The offering of a product for use with a given condition implies that it will cure or effectively treat that condition. Aronberg v. F.T.C. , 132 F.2d 165, 167 (7th Cir., 1942). See, also, Rhodes Pharmacal Co., Inc. v. F.T.C. , 208 F.2d 382, 386 (7th Cir. 1953), modified on other grounds , 348 U.S. 940 (1954).
6. Based on the testimony of Dr. Ayers I find that the representations made by Respondent as to the product FORMULA-12 CREME are false in fact.
7. The representations found are material in that their natural tendency is to persuade readers of Respondent's advertising to purchase the product. See Standard Research Labs , P.S. Docket Nos. 7/78, 7/86 (P.S. Decision 1980) re authority of administrative law judge to determine materiality of representations without testimony on that issue.
8. The representations made by Respondent, as found, are material in that their natural tendencies is to induce readers to purchase the product.
9. Complainant has established its cases by a preponderance of the reliable and probative evidence of record.
10. Respondent is engaged in the conduct of schemes for obtaining remittances of money through the mails by means of materially false representations in violation of 39 U.S.C. 3005.
11. An order pursuant to that statute in the form attached should be issued against Respondent.