In the Matter of the Complaint Against

 WEIGHT-LOSS PRODUCTS

 and

 WEIGHT-LOSS PRODUCTS, INC.,
 39 Orchard Street at
 Manhasset, NY 11030

 P.S. Docket No. 9/42
 
 05/04/81
 
 Cohen, James A.  Judicial Officer

 APPEARANCE FOR COMPLAINANT:
 Daniel Lewis, Esq.
 
 Consumer Protection Division
 Law Department
 U.S. Postal Service
 Washington, DC 20260

 APPEARANCE FOR RESPONDENT:
 Fred Schwartz, Esq.
 420 Jericho Turnpike
 Jericho, NY 11753

On January 27, 1981, Complainant filed a Petition for Mail Stop Order Based Upon Breach of Consent Agreement alleging that Respondent under the name Diet Products, Inc., 1 West Main Street, Smithtown, NY 11787, has breached the terms of a Consent Agreement executed on October 9, 1980, by Michael H. Faigelman, owner or principal officer of Diet Products, Inc. Respondent filed an Answer to the Petition denying each and every allegation set forth therein.

After the Petition had been filed and an interim detention order issued pursuant to clause 3 of the agreement, Respondent instituted suit in the United States District Court for the Eastern District of New York seeking dissolution of the interim order. The issue presented for resolution in the District Court proceeding was whether Diet Products, Inc., is the same party who agreed to be bound by the terms of the Consent Agreement. That issue is still pending before the Court and by agreement of the parties will not be addressed in this Decision. The issue for determination at this time is whether a July, 1980, mailing by Diet Products, Inc., or subsequent similar mailings could constitute a breach of the Consent Agreement (Tr. 2-3; Memo, Telephone Conference April 3, 1980). If such mailings could not constitute a breach of the agreement, the interim detention order would be dissolved. To resolve this issue a hearing was held which both parties attended. Complainant presented the testimony of Inspector Gilbert Lee Barta and on the basis of his testimony offered three exhibits into evidence. Respondent presented no witnesses or documents in support of its position. Based on the evidence in the record the following findings of fact are made.

Findings of Fact

On August 22, 1980, the Consumer Protection Office, Law Department, filed a Complaint alleging that:

III

"By means of the aforementioned Exhibits A, B & C to the Complaint advertising matter Respondent expressly or impliedly represents to the public in substance and effect that:

(a) PHEN-AMINE I ANTI-CALORIE CAPSULES are an effective remedy for obesity.

(b) PHEN-AMINE I ANTI-CALORIE CAPSULES are a scientifically tested and proven remedy for obesity.

(c) PHEN-AMINE I ANTI-CALORIE CAPSULES will eliminate fat stored on the body.

(d) PHEN-AMINE I ANTI-CALORIE CAPSULES "Neutralize" calories in all food converting it into energy rather than fat.

(e) PHEN-AMINE I ANTI-CALORIE CAPSULES function effectively as a remedy for obesity without requiring the exertion of willpower or determination.

(f) Persons adhering to the ANTI-CALORIE PROGRAM will not experience any unpleasant sensations normally associated with dieting.

(g) Losses of body weight and fat caused by adherence to the ANTI-CALORIE PROGRAM will be permanent.

(h) PHEN-AMINE I ANTI-CALORIE CAPSULES will permanently diminish the user's appetite for food.

(i) PHEN-AMINE I ANTI-CALORIE PROGRAM and CAPSULES constitute a new scientific development making it significantly different from all other plans or products intended for control of obesity.

(j) PHEN-AMINE I ANTI-CALORIE CAPSULES are the primary factor contributing to losses of body weight and fat achieved through adherence to the ANTICALORIE PROGRAM.

IV

The aforesaid representations are materially false as a matter of fact."

On October 9, 1980, Respondent entered into a Consent Agreement whereby it agreed to discontinue making the representations alleged in the Complaint. On or about July 29, 1980, the Postal Service under the fictitious name of Mrs. R. C. Mills, received from Diet Products, Inc., an unsolicited direct mailing advertisement for an anti-calorie capsule. A purchase was subsequently initiated and a product was received on September 11, 1980 (DuPilka Aff. paragraph 5). On or about November 24, 1980, the Postal Service received a direct mail circular for an anti-calorie capsule from Diet Products, Inc., addressed to a fictitious name at Parris, Tennessee (Tr. 10-12; Ex. B-1 thru B-13). On February 12, 1981, Postal Service Inspectors in Washington, DC, received a direct mail circular bearing the name Diet Products, Inc., addressed to a fictitious name at a post office box in Washington, DC (Tr. 16-17; Ex. C-1 thru C-12). This circular also solicited remittances for an anti-calorie capsule (Ex. C-1 thru C-12). The evidence does not establish the date on which either circular was placed in the mail.

Under normal mail standards the direct mail circulars would have been placed in the mail approximately two weeks prior to their receipt at the post office (Tr. 27). Mailings received under fictitious names are normally referred to the Postal Service Inspectors within seven to ten days after their receipt by the Postmasters (Tr. 14, 16).

Decision

While the evidence does not establish the precise dates on which Exhibits B-1 thru B-13 and C-1 thru C-12 were deposited in the mail, it does establish they were received long enough after the execution of the Consent Agreement to create the presumption they were deposited in the mail after October 9, 1980. The evidence to rebut this presumption was solely within the possession of Respondent. Although afforded a hearing at which it could have presented this evidence, Respondent chose not to do so. Accordingly, it is concluded that the B and C Exhibits were mailed subsequent to October 9, 1980, and that such mailings constitute a breach of the Consent Agreement.

Since this issue has been decided against Respondent, the interim detention order previously issued will remain in effect until the Court determines whether Diet Products, Inc. is bound by the terms of the Consent Agreement. Upon advice that the Court Decision has been issued a conference call will be initiated by this Office to determine whether further action in this proceeding is necessary.