In the Matter of the Complaint Against MAGA RESEARCH, LTD. P. O. Box 667 at Lynbrook, NY 11563 P.S. Docket No. 12/101; 02/22/82 Bernstein, Edwin S. APPEARANCE FOR COMPLAINANT: Thomas A. Ziebarth, Esq. Brendan J. O'Brien, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Anne C. Vladeck, Esq. Frankfurt, Garbus, Klein and Selz, P.C. 485 Madison Avenue New York, NY 10022 BEFORE: Judge Edwin S. Bernstein
Complainant alleged and Respondent denied that Respondent is engaged in 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 New York City on January 7 and 8, l982.
Dr. Theodore B. Van Itallie and Dr. Jack Harrison Wilmore testified for Complainant. Respondent presented no witnesses.
I find that Respondent solicits remittances of money through the mail in connection with the sale of its Maga Technique programs. Respondent's advertisement (CX-1) supports this conclusion.
I further find that Respondent's advertisement at CX-1 makes the representations alleged in Paragraph 3, subparagraphs (a) through (f) of the Complaint. The reason for my findings are as follows:
(a) The MAGA TECHNIQUE program will cause a substantial increase in the size of the female user's breasts in a short period of time .
The heading of the advertisement reads "Bustin' Out. New Tests Prove Doctor's Wonder Enlargement Technique Can Give Any Woman A Dramatic New Bustline In Just One Week]" The advertisement, in the form of an article, begins, "Thousands of women, young and old, may be shopping for larger bras this season thanks to a Doctor's newly tested an proven breast enlargement technique." At the top of column two, the article indicates that after a week on the program a woman often will "actually see a l" to 3" improvement. Her breasts stand out more prominently, her cleavage is already beginning to make male eyes pop, and likely she's ready to start shopping for new bras. But that's only the beginning." Additionally, in the middle of that column, large type proclaims "No surgery . . . no padding . . . no exercises . . . no drugs. Yet many women see up to a 3 inch improvement in 7 days or less." Finally, the author, Robin Stone, states, "I had to try it for myself. Until I actually saw, with my own eyes, what could happen to a flat-chested woman, I didn't believe anything could give me that extra cleavage every woman wants. . ."
(b) The MAGA TECHNIQUE program will cause a dramatically visible change in the female user's bust almost immediately.
(c) Any woman will achieve a dramatic new bustline in just one week by using the MAGA TECHNIQUE program.
(d) The MAGA TECHNIQUE program will often produce a 1 to 3 inch increase in the female user's bustline measurement in one week.
Respondent admitted these allegations in its Answer. Additionally, the language quoted in connection with subparagraph 3(a) makes these representations.
(e) The DI-AMATHENE capsules are an integral and essential part of the MAGA TECHNIQUE program and make a material contribution to the promised results.
At the bottom of column one, CX-1, reads:
"After the initial consultation a woman is given the Maga Technique program. Di-Amathene capsules and all, to use in the privacy of her own home. From there, it's up to her. She can follow the program and take 3 capsules daily for 'nutritional insurance' and dramatically visible changes in her bust start to take place almost immediately]"
Near the bottom of column two, the advertisement continues:
"Now or the best news of all. The complete Maga Technique program, Di-Amathene vitamin supplement and all, is available by mail to women who want the same results but who can't visit the Maga Research clinic. Is this the exact same package which women receive at the clinic? The answer is 'Yes]'"
(f) The breast and bustline improvement claims enumerated in subparagraphs (a) through (e) above have been substantiated by competent medical and clinical tests.
Respondent's Answer admits this allegation. Additionally, CX-1 refers to the Maga Technique as a "Doctor's Wonder Enlargement Technique" (heading), a "Doctor's newly tested and proven breast enhancement technique" (column one), and a program that "was developed largely from research at a leading medical school by a top specialist . . . to whom medical colleagues send their own wives for help with their breasts." (column one)
I further find that all of the above representations are materially false. My finding is based largely upon the unrebutted testimony of Complainant's two expert witnesses who I found to be well-formed and credible. Dr. Van Itallie is an internist who specializes in metabolism and clinical nutrition. He is a Professor of Medicine at Columbia University and for seventeen years was Director of Medicine at St. Luke's Hospital Center. He has written numerous professional articles. His field of expertise includes endocrinology, the study of endocrine glands, other glands, and hormones (Tr. 7-8).
Dr. Van Itallie described the female breast as a special organ designed for milk production and breast feeding (Tr. 10). There are no voluntary or striated muscles within female breasts. The pectoral muscles underly the breasts (Tr. 11). Dr. Van Itallie stated that the size of female breasts is determined mainly by heredity (Tr. 16). He testified that the Di-Amethene 21 capsule tablets, used by Respondent in the Maga Research program, are a combination of nutrients, although not a particularly rational combination (Tr. 19). Dr. Van Itallie stated that, except for extreme situations of mineral or vitamin deficiency, Di-Amethene tablets "would have absolutely no effect on the female breast" and the bast preponderance of American women do not suffer from signi ficant vitamin or mineral deficiencies (Tr. 19-20). For the vast preponderance of women, taking Di-Amethene would simply "increase the concentration of vitamins in the urine. . ." (Tr. 20). Dr. Van Itallie stated without contradiction, and I find, that his views are consistent with the consensus of informed medical opinion (Tr. 28).
Complainant's second witness, Jack Harrison Wilmore, Ph.D., was also impressive. Dr. Wilmore is a Professor of Physical Education at the University of Arizona who has extensive qualifications in the fields of Physical Fitness, Exercise Programs, and Conditioning. He has written numerous articles about these subjects. He also has served as consultant to the Los Angeles Dodgers and California Angels baseball teams, the Los Angeles Rams and San Francisco 49ers football teams, and the Los Angeles Lakers basketball team.
Much of Dr. Wilmore's research since 1965 has concerned compara tive responses to exercise by males and females. He noted that in the mid-1960's there was a wealth of information on responses to exercise my males but little or no information on responses by females. Therefore, he became interested in the subject and pursued it as a topic for his doctoral dissertation (Tr. 58).
Dr. Wilmore testified that until recently women athletes in the United States had not performed well in activities that required great amounts of strength. The basic reason for this was a fear by women coaches and athletes that strength-developing exercises, such as weight training, would cause them to develop large, bulky muscles and make them "come out looking like a female version of Arnold
Schwartzeneger" (Tr. 59-60). Dr. Wilmore stated that, based on his limited experience in this area and his familiarity with the differences in the endocrine system of males and females and what is responsible for muscle growth or hypertrophy, there would be little likelihood that women would develop large, bulky muscles (Tr. 60). Dr. Wilmore testified that it is though that the differences are due to varying rations of the predominent male hormone, testosterone, and the predominent female hormone, estrogen. He noted that many ment can increase the size of their muscle considerably while very few women can bulk or hypertrophy. He added that most people don't realize that males have some female hormones and females have some male hormones (Tr. 60-61).
The questions were tested and the results were published in two studies in which it was concluded that, while women were able to achieve impressive increases in strength, the amount of their muscular hypertrophy was trivial (CX-l, CX-12, Tr. 62). The second study involved a group of women who had never weight-trained and were not athletically inclined. They simply were interested in being part of a project in which they would do strength-training exercises and be measured (CX-12, Tr. 62-63). Dr. Wilmore added that exercises designed to increase strength are essentially the same as those used to maximize muscular hypertrophy (Tr. 63). After following a rigorous program for ten weeks, the average subject's increase in chest circumference was approximately 0.6 cm., or about a quarter of an inch. Bust measurements, taken at the nipple line, did not change at all (Tr 66). Dr. Wilmore concluded that women could participate in strength-training and show remarkable gains in strength without any substantial hypertrophy (Tr. 67).
With respect to the Maga Technique exercise programs, Dr. Wilmore noted that most of the exercises are excellent as "warm-up" exercises but are not strength-type exercises (Tr. 73-74). With respect to the few exercises that could increase strength, he suspected there would be no hypertrophy, since these exercises would not challenge the average woman to any significant degree (Tr. 79-82).
Dr. Wilmer testified that Respondent's seven day program con sists solely of warm-up type exercises. Therefore, no gain in strength or hypertrophy would be possible from that program (Tr. 76). He stated that the twenty-one day program included the military press exercise, a strength-type exercise. However, to achieve strength, the subject must exceed the threshold limits of her physical ability (Tr. 77-78). Moreover, as the subject's strength increases, the challenge also must be increased (Tr. 78). Dr. Wilmore concluded that the intensity of the exercises in all three Maga programs is an insufficient challenge to the average woman to increase her strength or cause any of her muscles to hypertrophy (Tr. 79).
Dr. Wilmore also stated that care must be taken when measuring subjects to assure that the results are scientifically valid. The measurements should be taken with standardized posture and at the same point in the breathing cycle. Also, the tape measure must be positioned in the same way each time and it is important to eliminate investigator bias (Tr. 83-84). Finally, the subject's menstrual fluctuations must be considered (Tr. 86).
Dr. Wilmore testified that the exercises recommended in the Maga Technique programs would achieve no increase in breast or bustline dimensions. Indeed, Dr. Wilmore stated that if substantial increases in breast size or bustline dimensions could be achieved by exercise, such scientifically valid data definitely would be published (Tr. 93). He stated that he carefully follows the scientific literature in this field and has seen no study that con tradicts the results of his own research (Tr. 95).
In summary, as indicated by Respondent's publications (CX-3, CX-4 and CX-5), Respondent's seven, 21, and 42 day programs consists of exercise programs combined with multi-vitamin and mineral supple ment tablets. As Dr. Van Itallie testified, the pectoral muscles are under and not part of the female breasts and the breasts them selves contain no muscles. Dr. Wilmore's testimony and Complainant's exhibits prove that exercises will not increase the size of the female breasts. Furthermore, the exercises in Respondent's three plans are warm-up and not strength or hyper trophy producing exercises with a few exceptions which are insufficient to challenge the average woman. As Dr. Van Itallie testified, Respondent's nutritional supplement also will have no effect on the female breast. Therefore, the representations in subparagraphs 3(a) through (e) of the Complaint are false. Since these claims have not in any way been substantiated by competent medical and clinical tests, the representation in subparagraph 3(f) of the Complaint is also false.
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. What has been omitted and what may be reasonably implied from the advertisement are considered in assess ing its meaning. Donaldson v. Read Magazine, Inc., 333 U. S. 178, 184, 188 (l948).
3. The average person reading Respondent's advertisements would interpret them substantially as characterized in Paragraph 3 of the Complaint.
4. The representations specified in Paragraph 3 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. l978).
6. Expert opinion testimony need not be based upon tests of the particular product in issue to constitute substantial evidence of false advertising representations. Reilly v. Pinkus, 338 U.S. 269, 274 (l949).
7. The effect of false representations is not dispelled by a money-back guarantee. Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. l959).
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 False Representation Order, substantially in the form attached, should be issued against Respondent.