In the Matter of the Complaint Against COSVETIC LABS, or any variation thereof at P. O. Boxes 49024, 49087, 49303 and 49425, Atlanta, GA 30329 and at P. O. Box 53098, Atlanta, GA 30305 and at P. O. Box 14048, Atlanta, GA 30324 and at P. O. Boxes 20190, 20429, 20482 and 20499, Atlanta, GA 30325 and at P. O. Box 10064, Atlanta, GA 30319 and at P. O. Boxes 95543, 95544 and 95545, Atlanta, GA 30347, PEAK LABS, or any variation thereof at P. O. Box 10064 and at 470 E. Paces Ferry Rd., Atlanta, GA 30319, QUEST RESEARCH at P. O. Box 14009, Atlanta, GA 30324, GUARANA at P. O. Box 52977, Atlanta, GA 30355, BRASWELL, INC. at P. O. Boxes 95544 and 95545, Atlanta, GA 30347 and at P. O. Boxes 10064 and 10101, Atlanta, GA 30319 and at P. O. Box 81345, Atlanta, GA 30366 and P. O. Box 11627, Atlanta, GA 30305 and at P. O. Box 14092, Atlanta, GA 30324, COSVETIC LABS, or any variation thereof at P. O. Box 1097, Deerfield Beach, FL 33441 P.S. Docket Nos. 9/134, 9/135, 9/136, 9/137, 9/138, and 10/41 May 22, 1981 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: Daniel S. Greenberg, Esq. Consumer Protection Division Law Department 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 and December 19, 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 representa- tions concerning a product called "GUARANA."
The specific false representations alleged to be made in Respondent's advertisements are as follows:
(1) That ingestion of "Guarana" will cause most dieters to have "more than enough energy" to complete [their] work;"
(2) That, as a result of ingestion of "Guarana," most dieters "just won't feel like eating;"
(3) That ingestion of "Guarana" will enable most users "to withstand superhuman hunger and fatigue;"
(4) That ingestion of "Guarana" will give most users "the power to control when and how much they eat;"
(5) That, as a result of ingesting "Guarana," most dieters will lose weight;
(6) That ingestion of "Guarana" will provide a
"speed-like rush" and "high" similar to that obtained by injecting or sniffing cocaine;
(7) That ingestion of "Guarana" will enable most people to experience the results enumerated in sub- paragraphs (1) through (6), supra , without being nervous or irritable, or having the jitters.
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 GUARANA and obtaining money or property therefor through the mails. (CX-121, 122, 125 through CX-146; CX-189; CX-306; Tr. 188-213)
2. Attached hereto as Exhibits A through E are typical examples of the Respondent's advertisements for GUARANA.
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 advertising 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 expert witnesses Dr. William Ayers, a medical doctor, board certified in the field of internal medicine and Sorrell L. Schwartz, a Professor of Pharmacology at Georgetown University.
At the time of the hearing Dr. Ayers 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.
Dr. Schwartz received his Bachelor's degree in Pharmacy from the University of Maryland in 1959 and a Ph.D in Pharmacology from the Medical College of Virginia in 1963. He has taught at Georgetown since 1968, becoming a full Professor in 1976. He teaches a general course in pharmacology to medical, dental, and graduate students, and also teaches a course in toxicology. Pharmacology is the study of drugs, including the mechanism of the action of drugs, their absorption and distribution. Toxicology generally deals with inadvertent or undesirable effects of chemicals.
5. Respondent called as an expert witness Dr. J. T. Cooper, a medical doctor. He does not have a specialty but limits his practice almost 100% to the treatment of obesity. His experience consists of approximately 14 years of treatment, either short-term or long-term, of about 9000 obese patients. Dr. Cooper is a member and past-president of the American Society of Bariatrics, a group of physicians interested in the treatment of obesity. He annually gives a one-hour lecture on obesity to sophomore medical students at Emory University. He has written three lay books on obesity and has published for physicians a seven-volume set of cassette tapes on the subject of obesity.
6. Drs. Ayers and Cooper were in general agreement that most obesity is caused by consumption of more calories than the person needs to maintain daily activities, the excess calories being stored in the body as fat (Tr. 20, 21, 337, 338).
Dr. Ayers testified that people overeat for a variety of overlapping reasons:
". . . People can be conditioned by their upbringing, by their families. In many families in this country vigorous eating is considered to be a healthy sign. People are encouraged to clean their plates. Various social functions are centered around eating. People work diligently at the preparation of food that tastes good, smells good, looks good. And for a variety of these and other reasons, bombardment by advertising, social requirements, business lunches, et cetera, people are constantly in a situation where it is easy to overeat." (Tr. 21)
He testified that frustration, pressures of various kinds from business, home, school, etc., can also cause overeating (Tr. 21, 22).
Dr. Cooper traced the onset of overeating and resultant obesity in most overweight people to particularly stressful times such as pregnancy, surgery, a severe illness, or severe emotional shock. During these stressful periods something, at present not understood, happens to the body to destroy or change the delicate and intricate mechanism by which body weight is maintained. From that point on, probably for the rest of their lives, they must pay attention to their diets (Tr. 338).
7. Dr. Ayers and Dr. Cooper were in essential agreement that there is a difference between hunger and appetite as causes of eating. Hunger is basically physiological and refers to the body's physiological need for food manifested in the stomach's contractions known as hunger pangs. Appetite is a psychological desire for food as distinguished from the body's actual physiological need. Overeating and resultant obesity are generally the result of psychological factors manifested in appetite (Ayers CX-274; Cooper Tr. 339, 340, 347). In this connection Dr. Ayers said in his affidavit (CX-274) as follows:
"It is important, in evaluating any weight loss regimen, to bear in mind that overeating is generally due to factors other than actual hunger pangs. The psychological aspects of overeating are extremely important. Many people will overeat out of frustration in regard to work, family problems, or any of the other myriad situations that can cause frustration. Others may overeat in response to visual or olfactory stimulation, or merely in response to spoken suggestions. Yet others may overeat because of their upbringing, which may have taught them to always 'clean the plate,' and still others may have been brought up to think of food as a 'reward' and thus overeat when they are particularly happy about something. Complicating treatment of such overeating is the fact that many of these causes overlap, i.e., a person may well overeat for more than one of the above reasons. The instances of obesity due to overeating for psychological reasons greatly outweigh those instances due to actual physiological hunger."
8. Dr. Cooper testified as follows concerning appetite:
"The appetite is a very complex behavior pattern, and it's different with everybody. The appetite is subject to mood; it's subject to external influences.
*** The most important things that we notice [with obese patients] --they are very vulnerable to depression, and very vulnerable to fatigue. They're very vulnerable to boredom, and they are very vulnerable to any sort of external cue. It can be visual; it can be olfactory; it can be tactile, even" (Tr. 342, 343).
Dr. Cooper's opinion was that depression and fatigue are the principal causes of overeating due to appetite.
9. Dr. Ayers and Dr. Cooper were in agreement that, excluding the rare cases of obesity due to illness, obesity is treated by getting the patient to reduce caloric intake below the body's needs thus forcing the body to resort to stored fat as its energy source, thus diminishing the fat stores and thereby producing loss of weight (Ayers Tr. 22; Cooper Tr. 341).
10. In the Georgetown Diet Management Program Dr. Ayers employs various diets having different caloric contents, works "very hard" with psychological counseling to modify patient behavior with respect to eating habits, and encourages mild forms of exercise. The psychological counseling is emphasized because it helps to identify the cues or situation which lead to overeating, enhancing the achievement of weight loss and, most important, keeping the weight off once it has been lost. Counseling involves suggesting alterations for individual patients to employ in their effort to modify their behavior with respect to eating patterns (Tr. 18, 19, 22, 23).
11. Dr. Ayers regards appetite suppression as relatively unimportant to a successful diet management program. In his program reliance is placed mainly on establishment of appropriate caloric intake levels and behavior modification through counseling (Tr. 114, 115).
12. Dr. Cooper placed much emphasis on the necessity of "intervention" in order to achieve success in weight loss. He described intervention as follows:
"Intervention to me can be anything from going to a meeting, as Weight Watchers does, to actually using a product or a medication with a patient, or to changing anything to do with their behavior pattern. It can be very minor, or it can be extremely involved, such as a daily diary, and two or three times a week checking that diary and the weight. But whatever is used, even the placebos that are used in a lot of studies, are effective in part" (Tr. 351).
13. Dr. Cooper also placed each patient on one of about seven different diets (Tr. 349, 350). But he said that a diet by itself is almost never enough; some form of intervention is also required. The different types of intervention help patients to deal, to one degree or another, with the difficulty of remaining on diets (Tr. 351, 352).
14. He stated that a physician or other monitor of a dieting patient provides a benefit in the behavioral aspects of obesity. The training and monitoring of the patient is important and desirable because of human nature and the need for some sort of intervening ritual in weight reduction, whether the ritual be going to a doctor, getting on the scale, going to a meeting, or taking a product. He attributes more than half of his success in treating obesity to the fact that he acts as an intervening agent. Even with his intervention there is a hard core group of about 20% of his patients who do not stay on their diets (Tr. 475, 476). According to Dr. Cooper, his success rate in treatment, including drop-outs, is better than 50%. Not counting drop-outs it is better than 80%. Dr. Cooper defined success as a sustained weight loss of more than 20 pounds.
15. According to Dr. Cooper there is a "honeymoon" period that lasts 4 to 6 weeks in most weight patients produced by the novelty of the new program or treatment. Long term management requires getting away from the "magic" of medicine or weight loss and "getting down to the basic adult-type relation to reality." (Tr. 477, 478)
16. In addition to a diet, Dr. Cooper gives some sort of nutritional therapy to all patients, usually a multi-vitamin tablet, a calcium and Vitamin D2 tablet, a magnesium luconate tablet, and a capsule containing choline, methionine, and inositol. He gives these both to prevent nutritional deficiencies and to "probably *** help speed up the enzyme reactions that are necessary for fat burning." Dr. Cooper identified the vitamin B and C groups as that part of diet supplementation necessary to speed up the fat burning process (Tr. 486-489, 490).
17. Dr. Cooper uses in treatment of obesity certain products similar to some of those sold by Respondent, including GUARANA, but at the same time uses additional nutritional supplements or other forms of treatment. He acknowledged that he is unable to differentiate results, if any, attributable to use of products similar to Respondent's from those that might be attributable in whole or in part to other treatment given his patients (Tr. 506, 507).
18. Dr. Cooper testified on cross-examination that the actual cause of loss of fat is caloric deficit and that the mere ingestion of one of Respondent's products is not going to cause the burning of fat or to eliminate more fat than would have occurred without it (Tr. 509, 514).
19. Following are pertinent portions of the label appearing on the container of GUARANA (CX-145):
Guarana 800 P Sorbilis 90 tablets
Guarana 800 is a natural stimulant, an energizer used for centuries by the Amazon Indians because of the "lift" it provides. In addition, the Amazons also used guarana to reduce hunger and fatigue.
Guarana is not a drug. It's 100% organic. Each Guarana 800 tablet contains no starch, sugar, or artificial coloring. Just 800 mg. of pure guarana plus natural excipients.
DIRECTIONS: Take 2-4 tablets before breakfast or 1/2 hour before meals.
20. Guarana is a plant substance which contains caffeine as its major alkaloid (Tr. 163). Caffeine is a stimulant found in coffee. A cup of coffee contains approximately 85 mg. of caffeine. Eight hundred mg. of Guarana provide 32 mg. of caffeine. Two to four tablets of GUARANA would contain 64-128 mg. of caffeine, the equivalent of 1 to 1 1/2 cups of coffee.
Human energy is the ability to do work and requires calories. Although caffeine is a stimulant, it does not produce energy. Rather, it stimulates the nervous system and, to some extent, makes the user more alert (CX-274, p. 14).
Caffeine is not a hunger suppressant but it can be a mood elevator (Tr. 167, 403, 404).
21. Dr. Ayers stated that ingestion of GUARANA would not cause most dieters to have more than enough energy in its ordinary sense, or as a stimulant, to complete their work. In the latter sense the nature of the task facing the user, as well as the user's state of wakefulness, play the most important parts in determining whether he will be able to complete his work. Dr. Ayers cited the frequent lack of effectiveness of several cups of coffee in keeping users awake when tired and faced with a boring task (CX-274, pp. 14, 15).
Dr. Ayers stated that because people eat for many reasons, even assuming absence of hunger, ingestion of GUARANA will not result in most dieters "just not feel[ing] like eating," as represented by Respondent (Tr. 15).
As to the representation that ingestion of GUARANA will enable most users "to withstand superhuman hunger and fatigue," Dr. Ayers stated that it is false. On this point his affidavit reads in part as follows:
Even assuming one or more of the ingredients could mitigate hunger, it could not enable one to withstand the urgings of a deprivation characterized as "superhuman" hunger. Moreover, relief from fatigue requires rest, or energy, or both. However, the "energy" required for a fatigued body is not "energy" as that word is used erroneously to indicate the effect of stimulation. Rather, energy in the form of glucose is required if the person is fatigued because of lack of energy-producing food. The giving of a stimulant such as Guarana would serve only to make the person jittery, rather than to overcome the fatigue in a safe way. (CX-274, p. 15).
Dr. Ayers stated that even aside from the question of physiological hunger the various psychological causes of overeating (appetite) will not be interrupted by ingestion of GUARANA. Therefore, he concluded that ingestion of the product will not give most users "the power to control when and how much they eat" and will not cause most dieters to lose weight as represented by Respondent (CX-274, pp. 15, 16).
22. Dr. Ayers testified that his testimony represents the informed medical consensus (Tr. 102).
23. Dr. Schwartz, Complainant's expert in pharmacology, testified that GUARANA taken in accordance with the directions on the label would not be expected to have an anorectic (hunger suppressing) effect (Tr. 166, 168). In accordance with his opinion and that of Respondent's witness, Dr. Cooper, it is found that GUARANA is not a hunger suppressant (Tr. 403).
24. Dr. Schwartz testified that GUARANA could not be expected to produce the "high" or "speed-like rush" produced by cocaine (Tr. 171). He gave the reason for this conclusion in the following testimony:
". . . [T]he rush is a reflection of a very rapid rise in the blood level and a rapid rise in brain level; and if you took enough of the material to get that rapid rise in blood level from orally, you'd be taking a toxic amount. That's why you can't do it with cocaine, or just about any other drug which causes drug seeking behavior. And it is a reflection of a very immediate increase in blood level; * * * and unless one can find a way to increase the blood flow and to create a greater blood supply to the gastro- intestinal tract, the efforts to attempt to get very rapid rises in blood level are doomed to anatomical failure." (Tr. 170, 171)
25. Dr. Schwartz testified that caffeine is a mood elevator and, therefore, an amount of GUARANA equivalent in caffeine content to one or two cups of coffee would also be a mood elevator (Tr. 176). He stated, however, that caffeine is not a mood elevator for every one. There is a great deal of variation in response. Some people may experience mood elevation with two cups of coffee, some won't. Some people will over-respond to a single cup of coffee, becoming nervous and shaky, a disphoric effect, the opposite of euphoric or mood elevating (Tr. 177, 178). According to Dr. Schwartz there is a great deal of psychological overlay to the physiological process, very much individualized as between individuals and also within one individual from one period of life to another. Consequently, it is impossible to know whether GUARANA will elevate the mood of a purchaser. But, according to Dr. Schwartz, it is likely that is mood-elevating effects will be quite limited (Tr. 178, 179).
26. With respect to obesity caused by overeating due to depression, Dr. Schwartz thought it unlikely that ingestion of GUARANA would sufficiently elevate the mood of most depressed persons to eliminate or reduce overeating. He explained this opinion as follows:
Well, "likely", I think, is an element of predictability, and without testing I would hate to make that prediction. But "might conceivably" leaves me open to say, "well, if the person is mildly depressed, and if the person is overeating because of that mild depression, and caffeine relieves that mild depression, and when the person is no longer depressed they no longer overeat," then I'd say, yes, you could set up a scenario where it would be in [sic,' "an"] effect.
* * *
I doubt, with all those "might", that it represents a major fraction of your population --of your obese population. People may be obese because they're depressed. But the treatment of depression is one of the most difficult psychiatric medical problems that we have; and the management of a depressed patient is just an extremely difficult thing from the pharmacologic sense, which is my area of expertise, and from the psychiatric sense, which my friends who are psychiatrists tell me is difficult (Tr. 180, 181).
Additionally, he explained that a normal person, depressed because, for example, he did not get a raise, might very well be depressed for one or two weeks. However, the person who is chronically depressed will go on for six months or longer, which is not normal. So, the person who is occasionally depressed, and might overeat because of that depression, will not be depressed enough to overeat enough to become obese; he isn't depressed in the true psychiatric sense. Dr. Schwartz concluded that the depressed person who overeats enough to become obese is one who is chronically depressed, and requires treatment for that depression. He did not think that ingestion of Guarana as directed would relieve the depression, and thereby prevent the overeating by the normal person who was depressed for a week or two (Tr. 181, 182).
27. The testimony of Dr. Schwartz is in accordance with the informed scientific consensus (Tr. 173, 174).
28. Dr. Cooper testified that he has used caffeine in his practice on thousands of patients, always with a diet for weight control. It would appear that Dr. Cooper may have used a combination of phenolpropanolamine and caffeine (Tr. 408) whether on all of these thousands of patients or not is not clear. He has found that caffeine through interventionary characteristics assists patients in staying on diets. He stated that caffeine can be a mood elevator, helping mild depression, and can relieve fatigue (Tr. 403, 404).
Dr. Cooper stated that caffeine has nothing to do at all with hunger (physiological); that its only effect is on appetite. He stressed its interventionary usefulness as a mood elevator (Tr. 41, 523).
29. Dr. Cooper testified that ingestion of GUARANA would not under all circumstances assure that a dieter would have more than enough energy to complete their work but that it might assist in enabling persons to carry out their duties if interfered with by fatigue or depression (Tr. 519). He stated that ingestion of the product will not assure that most dieters just won't feel like eating but that it might affect "eating behavior" for 2 to 3 hours (Tr. 519, 520). Dr. Cooper's answers were not entirely clear on the cross-examination question whether ingestion of the product would enable most users "to withstand superhuman hunger and fatigue." However, he has stated unequivocally on direct examination that caffeine has no effect on hunger (Tr. 403). His answers on the subject of fatigue seem to resolve into an opinion that ingestion of GUARANA could assist in fighting fatigue (Tr. 522-524).
Dr. Cooper stated that ingestion of GUARANA will give most users, through mood elevation, the power to control when and how much they eat (Tr. 525) but will not directly cause most dieters to lose weight (Tr. 525).
He said that ingestion of a sufficient amount of caffeine to enable most persons to control how much they eat could also cause them to be nervous or irritable or to have the jitters (Tr. 525).
Dr. Cooper expressed the opinion that most dieters who have a component of depression or fatigue in their symptomatology would benefit through weight loss by using caffeine in conjunction with a properly designed diet and other dieters might benefit from ingestion of caffeine. He said that most people with a weight problem who are trying to diet find it more difficult to do so if they are fatigued, or depressed, or bored because these emotions or feelings are triggers to undesirable eating practices (Tr. 416).
Doctors Ayers and Cooper were essentially in agreement that GUARANA will not cause most dieters to have more than enough energy to complete their work, that ingestion of GUARANA will not assure that most dieters "just won't feel like eating," and that ingestion of GUARANA will not enable most users "to withstand superhuman hunger and fatigue."
Respondent did not present expert testimony or other evidence to counter Dr. Schwartz's opinion that ingestion of GUARANA will not provide a "speed-like rush" and "high" similar to that obtained by injecting or sniffing cocaine.
Dr. Ayers expressed opinions contrary to those of Dr. Cooper that ingestion of GUARANA will not give most users "the power to control when and how much they eat" and will not cause most dieters to lose weight. Dr. Cooper, while acknowledging that caffeine has no effect on hunger, expressed the belief that the mood elevating and stimulant effects of GUARANA would achieve these results by alleviating the fatigue, boredom, or depression which tend to trigger overeating. However, there is no evidence in this record that most users of GUARANA are, or would be, affected by those conditions or affected in the direction of overeating.
Dr. Cooper did not effectively contradict Dr. Schwartz's opinions that caffeine is not a mood elevator for everyone and for some people produces the opposite effect and that is is likely that any mood elevating effects of GUARANA would be quite limited and unlikely to eliminate or reduce overeating in persons so depressed as to have become obese as a result of depression.
Dr. Cooper acknowledged that ingestion of sufficient caffeine to control the amount of food intake could also cause nervousness, irritability, or jitters.
Dr. Cooper's opinions as to the effectiveness of GUARANA were attenuated by the fact that in his practice he uses with individual obese patients a wide range of interventionary tools and is unable to differentiate results, if any, obtained from ingestion of products similar to Respondent's from those attributable in whole or part to other forms of treatment given by him simultaneously. Also, weakening his opinions as to GUARANA is the strong possibility that the caffeine he gives patients is combined with phenolpropanolamine, a possible hunger suppressant.
1. Respondent solicits remittances of money through the mails to the names and addresses shown in the caption hereof for its product GUARANA.
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. Supp. 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). Even where statements as to the necessity of vitamins or other nutrients may be literally true, Respondent's failure to disclose that there are other, more common causes of the condition in question, misrepresents the likelihood of successful treatment. S.S.S. Co. v. F.T.C. , 416 F.2d 226, 228 (6th Cir. 1969). See, also, U.S. v. Vitasafe Formula M , 226 F. Supp. 266, 277 (D.N.J. 1964), modified on other grounds , 345 F.2d 864 (3d Cir. 1965), cert, denied, 382 U.S. 918.
Of course, the question to be decided is not whether the product is worthless, but whether it will do what is promised. Borg-Johnson Electronics v. Christenberry, supra . The fact that a product may put the purchaser in the proper frame of mind to diet is no defense to a charge of misrepresentation where the advertising implies that the promised result will be due to the product itself, rather than to the diet. Stauffer Labs, Inc. v. F.T.C. 343 F.2d 75, 82-83 (9th Cir. 1965).
6. Based on the testimony of Dr. Ayers and Dr. Schwartz conforming to the informed medical and the informed scientific consensus, I conclude that the representations, found supra made by Respondent as to its product GUARANA are false in fact. To the extent that Dr. Cooper stated contrary opinions, I find his testimony unpersuasive for the reasons given above.
7. The representations made by Respondent, as found, are material in that their natural tendency is to induce readers 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. Complainant has established its cases by a preponderance of the reliable and probative evidence of record.
9. 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.
10. An order pursuant to that statute in the form attached should be issued against Respondent.