In the Matter of the Complaint Against ATHENA PRODUCTS, LTD., P. O. Box 14152 at Atlanta, GA 30324 P. O. Box 757 at Decatur, GA 30030 P. O. Box 311 at Avondale Estates, GA 30002 P. O. Box 95294 at Atlanta, GA 30347 P. O. Box 893 at Scottsdale, GA 30079 P. O. Box 81112 at Chamblee, GA 30366 P. O. Box 29501 at Atlanta, GA 30359 P. O. Box 48392 at Atlanta, GA 30362 P. O. Box 869 at Saddle Brook, NJ 07662 P. O. Box 7161 at Ft. Lauderdale, FL 33338 P. O. Box 5029 at Margate, FL 33063 101 W. Pleasant Avenue P. O. Box 806 at Maywood, NJ 07607 7875 N.W. 57th Street Box 25027 at Tamarac, FL 33320 520 W. Ponce de Leon Avenue P. O. Box 757 at Decatur, GA 30030 3104 Briarcliff Road, N.E. P. O. Box 29501 at Atlanta, GA 30359 3545 Broad Street P. O. Box 81112 at Chamblee, GA 30366 2801 S. Federal Hwy. P. O. Box 22299 at Ft. Lauderdale, FL 33335 1776 E. Sunrise Blvd. P. O. Box 7382 at Ft. Lauderdale, FL 33338 330 S.W. 2nd Street P. O. Box 720 at Ft. Lauderdale, FL 33302 1122 Pennsylvania Avenue P. O. Box 472 at St. Cloud, FL 32769 350 Canal Street P. O. Box 449 at New York, NY 10013 1055 River Road P. O. Box 227 at New Milford, NJ 07646 P. O. Box 179 at Ridgefield Park, NJ 07660 5999 New Peachtree Road P. O. Box 48392 at Doraville, GA 30362 780 Morosgo Drive, N.E. P. O. Box 14152 at Atlanta, GA 30324 P. O. Box 4634 at Margate, FL 33063 P. O. Box 2734 at Kissimmee, FL 32741 P.S. Docket No. 12/136; 08/13/82 Bernstein, Edwin S. APPEARANCES FOR COMPLAINANT: Sand ra C. McFeeley, Esq. Anne Gallant, Esq. Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Tom B. Benham, Esq. Benham & Cohen, P.C. Suite 180, 380 Interstate North Atlanta, GA 30339 BEFORE: Judge Edwin S. Bernstein
In a Complaint filed on November 4, 1981, Complainant alleged that Respondent is conducting a scheme to obtain money through the mail by false representations in violation of 39 United States Code § 3005. Respondent denied the Complaint's allegations in its December 4, 1981 Answer.
On April 28, 1982, Respondent filed a Motion to Enforice Settle- ment Agreement in which it alleged that Counsel for both parties agreed to a Consent Agreement. Complainant denied this contention.
A hearing was held in Atlanta, Georgia, on May 4, 1982. I received evidence on the settlement issue including testimony by Tom B. Benham, Esq., Sandra C. McFeeley, Esq., and James F. McMullin, Esq. I reserved decision on that motion and also received evidence on the issue of false representation. This included testimony for Complainant by Postal Inspector Michael P. Flynn and Dr. William R. Ayers. No witness testified for Respondent concerning that issue.
On May 3, 1982, Complainant filed a motion to amend the caption of the Complaint. Respondent opposed the motion and I reserved decision at the hearing.
The parties filed Proposed Findings of Fact, Proposed Conclusions of Law and Memoranda on June 11 and 14, 1982, and Reply Memoranda on June 24 and 25, 1982. All of the parties' proposed findings, proposed conclusions and arguments have been considered. To the extent indicated, they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence.
Respondent contended that sometime after mid-January 1982, Tom B. Benham, Respondent's Counsel, and James F. McMullin, then
Complainant's Counsel, settled this case and agreed to terms for a Consent Agreement. This agreement allegedly was reached by March 5, 1982, (Motion to Enforce, p. 2). Respondent contends that a Consent Agreement that Complainant sent to Respondent on April 12, 1982, was drafted by Anne Gallant, an attorney who replaced Mr. McMullin, and differed materially from the terms allegedly agreed to between Mr. Benham and Mr. McMullin. Complainant denied that the parties entered into any settlement agreement.
At the hearing, Mr. Benham testified that during a telephone call, either on or shortly before December 15, 1981, Mr. Benham read proposed settlement language to Mr. McMullin; that Mr. McMullin then said the language sound good but that he wanted to see it in writing before approving it; that Mr. Benham sent the language in writing to Mr. McMullin on January 18, 1982; and that during another telephone call between Mr. Benham and Mr. McMullin, Mr. McMullin "categorically approved" the language. Mr. Benham did not know exactly when the telephone call took place or who initiated it (Tr. 13-14).
Shortly afterward, in answer to some of my questions, Mr. Benham corrected his testimony to indicate that at that time a portion of the Consent Agreement had not yet been agreed to. He testified:
"A He without --there was no reservation whatsoever. He approved that language as the heart of any settlement agreement.
Q As the heart?
A Right.
Q. What about the rest of it?
A The only question then to be decided was what to do with the mail, i.e., do you just have a stop on the mail or do you have some sort of system where the mail is sent back to the consumer or --Excuse me. Let me articulate that a little better.
Sometimes in settlements of this nature there are several different ways of handling the mail. One is just to stop the mail and send it back just as if a false representation order issued from an administrative hearing, or in the alternative you might allow the mail order company to send a letter to the consumer saying that the post office has taken certain exceptions to the advertising and therefore based upon this information if you would like to rescind your order then you may do so and we'll return your money.
I sent to Mr. McMullin or I referenced to Mr. McMullin a previous settlement agreement that I had entered into in a case involving Athena Pro- ducts, Limited, with a product known as DiCaps, and I asked Mr. McMullin so far as the remainder of the settlement was concerned whether or not the DiCaps type of settlement would be an agree- able form to handle this particular aspect of it.
Mr. McMullin indicated to me that he thought it probably would and that he would prepare the final draft of the agreement.
I never heard from Mr. McMullin further in regard to the agreement. He had indicated to me if he did not find that acceptable that he would let me know. ...
In light of the fact that the only discus- sions that Mr. McMullins and I had were in regard to DiCaps type of settlement agreement, then I'm sure he must have felt that that was agreeable" (Tr. 14-16).
The unresolved provision related to the method for handling Respondent's mail. Later in his testimony, Mr. Benham attempted to dismiss this as trivial, stating:
"This is a case that was filed on November 4th, 1981. We are now at May 4th, 1982. I seriously doubt that any mail relative to those post office boxes that are referenced in this complaint concerning which we reached a settlement is coming in. I mean there's just not going to be any mail coming in from advertisements that are that old, or if they are, it is so insignificant that it really doesn't make any difference from my perspective relative to the settlement whether the mail is stopped or the DiCaps approach is used.
I suggested the DiCaps approach simply because it's more practical. It is an incon- venience I'm sure for the post office at the various boxes, they have to stop all the mail, sift through the mail and see whether or not there is any orders coming in for this particular product, when in fact we all realistically know that at this point in time there probably are not, so from my perspective it makes no difference" (Tr. 19).
To the same effect, Mr. Benham later stated:
". . . I really don't care how the matter of mail is handled. If that is a bone of contention as to whether we have a settlement or not, they can have the mail handled any way they want it handled, it doesn't matter, if that is an issue, if they think that is something that makes a big difference in the terms of any agreement" (Tr. 29).
Mr. MCmullin was not able to attend the hearing. However, pursuant to agreement of the parties, he testified by telephone.
He stated:
"We he and Mr. Benham did agree to try to settle the case ... but we did not reach an agreement verbally or in writing that would dispose of the matter" (Tr. 46).
Concerning the draft agreement, he stated:
"Mr. Benham did send me up through the mail a proposed agreement. It was so wide of the mark in my judgment that I put it aside and attended to more urgent matters at the time" (Tr. 46).
Mr. McMullin denied that he and Mr. Benham agreed to a provision regarding advertising that Mr. Benham contended they agreed to, stating that they were, "in the ball park" but they had not agreed to "specific language which would dispose of the case" (Tr. 47).
Mr. McMullin stated that he had no recollection of receiving a copy of the settlement in the DiCaps case from Mr. Benham (Tr. 48).
He stated that he was going to reply to the draft settlement agreement that Mr. Benham sent but he never replied. He stated that he represented to this Administrative Law Judge that a settlement would be forthcoming because "there really were not factual issues that separated the parties" but he felt, "in terms of the actual language that we really need to work on it" (Tr. 51-52).
He testified that no language had been agreed to with regard to a provision restricting Respondent's advertising of its product (Tr. 54).
Mr. McMullin denied that his representation to this Administra- tive Law Judge's secretary, Mrs. Straub, by telephone that he expected to file a Consent Agreement soon indicated that a Consent Agreement had been agreed to. In Answer to Mr. Benham's question, Mr. McMullin stated:
Q "I would like for you to explain to the Court how you represented to the Court on March 29th, 1982, that you would that day file a settlement agreement if you had not in fact reached a settlement with me.
A I don't believe that that was my precise representation. It was my hope that we would be able to get a final agreement by that day, or at least be so close that I could legitimately ask for a brief extension of time within which to reach the final form of the agreement." (Tr. 55)
Sometime, during April 1982, Ms. McFeeley and Ms. Gallant, succeeded Mr. McMullin as Counsel for Complainant. Ms. McFeeley also was sworn in as a witness. She testified that in a telephone conversation with Mr. Benham on April 7, 1982, she told Mr. Benham that the language Respondent proposed for a Consent Agreement was not acceptable to Complainant (Tr. 25).
With regard to that telephone conversation, Mr. Benham testified:
"Ms. McFeeley has mischaracterized that conversation. I told her that I had reached a settlement, I asked her if she was taking over the case; she said she didn't know. I told her I wanted to go ahead and prepare a settlement agreement along the lines that had been previously discussed. I asked her whether I should send that to her or to
Mr. McMullin. She said 'No, send it to Mr.McMullin because Mr. McMullin is still officially handling the case, I'm not offi- cially handling the case at this time.' Therefore, my letter of April 12th was addressed to Mr. McMullin rather than Ms. McFeeley specifically at her direction..." (Tr. 28).
That letter read:
"Dear Jim:
As per our conference of last week, I have gone ahead and prepared the proposed Consent Agreement that we previously discussed. As you probably know, all of the post office boxes involved in this Complaint have previously been stopped by the Postal Service and very little use is being made of these boxes at the present time. I have incorporated herein a process for returning the mail pursuant to the DiCaps case which I believe I sent you a copy of the settlement on.
We have previously discussed this type of arrangement and, of course, have discussed the specific language relative to the exception on advertising. It appears to me that this meets with our specific agreement on the language regarding advertising, although I cannot recall that we reached any specific resolution on how to handle this mail.
Please call me as soon as possible so that we can resolve this problem." (Exhibit D to Motion to Enforce Settlement Agreement.)
A threshold question is whether District of Columbia or Georgia law should be applied to determine whether a contract was entered into by Mr. Benham and Mr. McMullin for their clients. Both parties contend that Georgia law should be applied, I agree. D. C. Courts apply an "interests analysis" test. Mazza v. Mazza, 475 F.2d 385, 387-388 (D.C. Cir. 1973). Under this test, Georgia would have a greater interest in the controversy since Respondent's business is located in that jurisdiction. Georgia courts apply the "grouping of contracts" or "center of gravity" approach as expressed in Restatement (Second) of Conflicts, § 188 (1971). Eldon Industries, Inc. v. Paradise and Company, 397 F. Supp. 535 (N.D. Ga. 1975). Similarly, under that test, Georgia law would apply since Respondent's business and the place of the settlement agreement's performance are in Georgia. Additionally, as held in Insurance Concepts, Inc. v. Western Life Insurance Company, 639 F.2d 1108, 1110-1112 (5th Cir. 1981), "it is a well-settled rule that the construction and enforcement of settlement agreements are governed by principles of local law applicable to contracts generally."
In virtually every jurisdiction, however, the following rule applies:
"The principle is fundamental that a party cannot be held to have contracted if there was no assent, and this is so both as to express contracts and contracts implied in fact. There must be mutual assent or a meeting of the minds on all essential terms in order to form a binding contract." 17 Am. Jur 2d. Contracts § 18. See also, 17 C.J.S. Contracts, § 30, 31.
In Georgia, this principle has been codified. The following is included in the statutes of that state:
"To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which it can operate. Georgia Code Annotated, § 20-107.
"The consent of the parties being essential to a contract, until each has assented to all terms the contract is incomplete; until assented to, each party may withdraw his bid or proposition." Georgia Code Annotated, § 20-108.
The following language in Russell v. City of Atlanta, 119 S.E. 2d 143 (1961) indicates the consistency with which Georgia Courts apply these rules. The Court stated:
"The case of Wells v. H.W. Lay & Co. Inc., 78 Ga. App. 364, 367, 50 S.E.2d 755, 758 controls the instant case. It was stated in that case: '"If there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agree- ment, even though the negotiations evidenced a complete willingness, or even an announced determination, to agree in the future upon such issues as might subsequently arise, it must still follow that a valid and binding contract was not made as of the earlier date." National Bank of Kentucky v. Louisville Trust Co., 6 Cir. 67 F.2d 97, 102. 'Unless all the terms and conditions are agreed on, and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. 17 C.J.S. Contracts § 49, p. 394. See also Board of Drainage Commissioners of Jackson County Dist. No. 2 v. Karr & Moore, 157 Ga. 284, 121 S.E. 298. 'An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.' Rosenfield v. United States Trust Co., 290 Mass. 210, 195 N.E. 323, 326, 122 A.L.R. 1210, 1216."
In this case the parties did not assent to all essential terms of the proposed Consent Agreement. Therefore no settlement agreement was concluded between the parties.
As Mr. Benham testified, a question to be decided was what to do with Respondent's mail (Tr. 14). The matter of treatment of a Respondent's mail is an essential aspect of a proceeding pursuant to 39 U.S.C. § 3005. It is the remedy of the Postal Service. Therefore, it is an essential part of any agreement to settle such a proceeding.
I do not agree with Respondent's contention that Mr. McMullin's failure to reply to Mr. Benham's offer regarding treatment of the mail - his silence - constituted acquiescence to and acceptance of Respondent's offer.
The general rule on that subject has been stated as follows:
"It is an old maxim that silence gives consent; but this is not a rule of law. It is certain that if the facts are that A makes an offer to B and B remains silent, there is no consent." Corbin on Contracts, § 72.
Stated slightly differently, the rule is:
"Generally speaking an offeree need make no reply to offers and his silence and inaction cannot be construed as an assent." Williston on Contracts (1920) § 91.
Thus, in Beach v. United States, 226 U. S. 243, 258 (1912), the Supreme Court held:
"The contention that an express contract rests upon the fact that the Postmaster General retained the appellant's proposal without. . . rejecting it. The argument is untenable."
See Also: 17 Am. Jur. 2d Contracts § 47; 17 C.J.S. Contracts § 41e.
The sections from the Code of Georgia cited by Respondent do not constitute authority for deviating from the general rule in this case. These provisions, which are evidentiary rules, read:
"Acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission." Georgia Code Annotated, § 38-409.
"In the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from the other to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter of his correspondent, and to adopt them." Georgia Code Annotated, § 38-120.
These provisions are consistent with the general rule that, absent a duty to speak, silence does not constitute acquiescence. They only deem silence to be an admission where "circumstances" or "good faith" require action. Respondent has not shown any reason why circumstances or good faith imposed a duty to respond to its offer in the case at hand. In this case Respondent's offer was neither accepted nor rejected but simply ignored.
A further indication that no agreement had been reached regarding handling of Respondent's mail is found in the language of Mr. Benham's April 12, 1982 letter to Mr. McMullin. That letter, written after Ms. McFeeley told Mr. Benham that Complainant dis- claimed any agreement, referred to the settlement agreement as "proposed"; stated "I cannot recall that we reached any specific resolution on how to handle this mail"; and proposed that they "resolve" that problem.
Complainant also argued that the motion should be denied because of the following Georgia statute:
"No consent or agreement between attorneys or parties will be enforced by the court, unless it be in writing, and signed by the parties to the consent, where such consent or agreement is denied by the opposite party." Georgia Code Annotated, § 24-3339.
As Respondent indicated in its briefs, this provision has been far from uniformly applied. The courts of Georgia have carved out many qualifications to the rule. Kapiloff v. Askin Stores, Inc., 42 S.E. 2d 724 (1947); General Communications v. Georgia Public Service Commission, 254 S.E. 2d 710 (1979); Peachtree-Piedmont Associates v. Tower Place Billjohn, Inc., 257 S.E. 2d 362 (1979). It is unnecessary to determine whether Section 24-3339 applies to the facts, however, in view of my previous conclusion that in any event the parties failed to agree to all essential terms of the proposed agreement.
Accordingly, Respondent's Motion to Enforce Settlement Agreements is denied.
On May 3, 1982, Complainant filed a Motion to Amend the Com- plaint by adding to the caption and addresses to which the requested relief applies the following addresses as found in advertisements that appeared in issues of either Soma Magazine or Athena Health & Beauty News:
Address To Be Added: Found In:
P. O. Box 869
Saddle Brook, New Jersey 07662 Spring 1982 Soma
P. O. Box 7161
Ft. Lauderdale, FL 33338 Jan/Feb 1982 Soma
P. O. Box 5029
Margate, FL 33063 Jan/Feb 1982 Soma
101 W. Pleasant Avenue
P. O. Box 806
Maywood, NJ 07607 Sept/Oct 1981 Soma
7875 N.W. 57th Street
Box 25027
Tamarac, FL 33320 Soma received 8/28/81
520 W. Ponce de Leon Avenue
P. O. Box 757
Decatur, GA 30030 Mar/Apr 1981 Soma
3104 Briarcliff Road, N.E.
P. O. Box 29501
Atlanta, GA 30359 Jan/Feb 1981 Soma
3545 Broad Street
P. O. Box 81112
Chamblee, GA 30366 Jan/Feb 1981 Soma
2801 S. Federal Hwy.
P. O. Box 22299
Ft. Lauderdale, FL 33335 Nov/Dec 1981 Soma
1776 E. Sunrise Blvd.
P. O. Box 7382
Ft. Lauderdale, FL 33338 Nov/Dec 1981 Soma
330 S.W. 2nd Street
P. O. Box 720
Ft. Lauderdale, FL 33302 Nov/Dec 1981 Soma
1122 Pennsylvania Avenue
P. O. Box 472
St. Cloud, FL 32769 Sept/Oct 1981 Soma
Address To Be Added Found In:
350 Canal Street
P. O. Box 449
New York, NY 10013 Sept/Oct 1981 Soma
1055 River Road
P. O. Box 227
New Milford, NJ 07646 Sept/Oct 1981 Soma
P. O. Box 179
Ridgefield Park, NJ 07660 Spring 1981 Soma
5999 New Peachtree Road
P. O. Box 48392
Doraville, GA 30362 Jan/Feb 1981 Soma
780 Morosgo Drive, N.E. Athena Health & Beauty
P. O. Box 14152 News, Vol. 3, No. 2
Atlanta, GA 30324 Winter 1980
P. O. Box 4634 Athena Health & Beauty
Margate, FL 33063 News, Vol. 4, No. 2 Winter 1981
P. O. Box 2734 Athena Health & Beauty
Kissimmee, FL 32741 News, Vol. 4, No. 2 Winter 1981
The motion stated that these additional addresses only came to Complainant's Counsel's attention on April 29, 1982. Respondent's Counsel opposed the motion at the hearing but was unable to state how his client would be prejudiced by the Amendment (Tr. 39-40).
The motion is timely. Rule of Practice 952.12(b) states that such a motion may be made at any time prior to the close of the hearing provided that (1) the amendment is reasonably within the scope of the proceeding and (2) the presiding officer's ruling must be fair and equitable to the parties.
The amendment is within the scope of the proceeding initiated by the Complaint. It in no way alters the preparation required by Respondent on the substantive issues. No new representations were alleged and no products were added by the proposed amendment. The legal and factual issues remain unaltered.
I also find that granting the motion to amend will be fair and equitable and will serve the interests of justice. Respondent was unable to show prejudice to it should the motion be granted and I find no prejudice. Granting the proposed relief with respect to some of Respondent's addresses and not with respect to 19 others listed in the motion would result in a hollow victory to Complainant (and the public interests) and would require Complainant to bring an entirely new action with respect to the 19 new addresses, resulting in considerable additional cost and delay.
Respondent's opposition to the motion is based upon its contention that Rule of Practice 952.8 requires Complainant to serve copies of the Complaint and Notice of Answer and Hearing at all such addresses. I disagree. Rule 952.8(a) requires service of these papers at any address of Respondent. This has been accomplished.
Accordingly, Complainant's Motion to Amend the Complaint by adding to the caption and the addresses for which relief is requested the 19 additional addresses specified is granted.
I find, as alleged, that Respondent solicits remittances of money through the mail in connection with the sale of its product, "Cellussage System" at the addresses set forth in the Complaint, as amended. The testimony of Postal Inspector Flynn and the exhibits introduced into evidence through his testimony support this finding (Tr. 62-85, CX-2-37). Respondent's advertisements and order forms clearly show the use of the mails in connection with its sale of "Cellussage System".
I further find that Respondent's advertising materials make the following representation, as alleged in Paragraph (3) of the Complaint:
"That use of Respondent's 'Cellusage (sic) System' consisting of an herbal cream, lotion, and a clear plastic wrap will rid the user of the condition, dermo-pannicu-losis deformans, commonly referred to as cellulite."
The following language contained in Respondent's advertisements supports this finding:
"The Cellussage System. It's the only way we know to get an immediate reduction in cellulite.
You decide to give the Cellussage System a try. You've read that Cellussage starts working in just one short hour to noticeably reduce the size and lumpy texture of your skin.
You massage Cellussage's rich, penetrating anti-cellulite creme into your thighs. Its pleasantly scented herbs and organic heat pro- ducers feel like they work at once against your cellulite.
. . . . .
The wrappe acts to seal in the deep-heating, cellulite-draining properties of the Cellussage (sic) creme. As you go about your daily routine, the wrappe stays snugly in place. You feel its warmth and begin to notice that fluids are being drained off and that the rippled swelling is going down.
. . . . .
The Cellussage wrappe is getting looser as your thighs begin to diminish in size --maybe even inches] You unwrap your legs to see smoother, firmer, lovelier skin --and your measuring tape reveals a new slenderness. The Cellussage System worked exactly as advertised.
. . . . .
You put on your shorts and go out, confident and proud of the improve in your figure and skin tone that you got in one short hour with the wonderfully effective Cellussage System. The Cellussage System. 'Immediately effective against cellulite swelling'."
"Wrap up your cellulite problems and watch them disappear] The Cellussage System gives figure-smoothing results immediately.
. . . . .
Recently, however, a cellulite treatment that promises almost immediate results has been used in many of the most popular cellulite control salons and the reports are astounding. Women proclaim they are able to literally watch their cellulite disappear.
CELLUSSAGE is the improved derivative of this famous cellulite treatment method reported to be so successful in Europe... In fact, users report improvement in their cellulite areas in as little as one short tour with CELLUSSAGE.
...if you are like thousands of prior users, you may be able to see an immediate, noticeable reduction in your cellulite deposits and pockets.
After using CELLUSSAGE you skin should be smoother, lovelier, firmer. And, to maintain the improved appearance and feel of your skin, a daily massage with the CELLUSSAGE maintenance lotion will stimulate circulation and keep the program in force.
...only CELLUSSAGE offers you what so many women have long been waiting for: the chance to wrap up your cellulite problems and watch them disappear]
The Cellussage System. Immediate results against cellulite."
"Get visible, immediate results with the Cellussage System. It's guaranteed. ...we felt that something extra was needed to reduce cellulite swelling. And that something else could be THE CELLUSSAGE SYSTEM.
CELLUSSAGE is the improved derivative of the famous cellulite bodywrap treatment reported to be so successful in Europe... users report improvement in their cellulite afflicted areas in as little as one short hour, as CELLUSSAGE works to drain off retained fluids and bloating.
. . . . .
When you remove the wrap you should be able to see, feel and actually measure the difference. Your skin should be smoother, lovelier and firmer. Then, to keep the loss permanent, simply massage daily with the CELLUSSAGE maintenance lotion and follow the directions in the enclosed CELLUSSAGE instruction pamphlet.
...THE CELLUSSAGE SYSTEM is the only way to potentially achieve immediate results....
In fact, we have so much confidence in CELLUSSAGE that we guarantee it.
The Cellussage System. GUARANTEED TO GIVE YOU RESULTS."
"After one treatment, this woman will see a noticeable difference in her cellulite areas with the CELLUSSAGE SYSTEM.
. . . . .
When we say that only one Cellussage treatment will make a noticeable difference in your cellulite areas, we mean it.
The Cellussage System is a three step plan that actually works on the fluids and wastes trapped in connective tissues which contribute to bloating and dimpling. This unique system, which has been used with great success in cellulite treatment clinics, can even draw out fluids and help eliminate wastes that have been trapped in your legs, thighs, buttocks and arms for some time.
All you do is massage the rich, penetrating Cellussage creme into the cellulite afflicted areas. This herbal creme contains special agents that penetrate deep into the skin. Then, when the self-clinging Cellussage wrappe is stretched over the problem areas, it seals in the natural heating and stimulating properties of the creme to force the break-up and removal of the unwanted build-ups that may otherwise appear as cellulite deposits.
Right away, you'll feel the warmth and activity of the Cellussage System as the fatty tissues heat up and deposits liquefy. This should result in an immediate visible reduction in cellulite in problem areas as soon as the wrappe is removed. Then, the regular application of the special Cellussage maintenance lotion and massage will work to keep the losses in problem areas permanent.
...it has been repeatedly shown that in just one home Cellussage treatment, you can see a noticeable reduction in the size and texture of your cellulite areas."
"Because cellulite is an internal problem that definitely appears externally, the best --and only --way to control the ugly mass is with the combination of internal and external cellulite elimination --the Cellulite Solution and The Cellussage System.
. . . . .
And, for that extra boost in eliminating the look of cellulite, the external Cellussage System can provide immediate, visible results. This exclusive home treatment program was developed to actually liquefy the spongy cellulite deposits and draw them out through your pores and natural elimination systems. The combination of the deep-penetrating Cellussage creme, the special wrappe and the soothing, herbal maintenance lotion will help reduce existing lumpy cellulite swelling virtually before your eyes."
"Cellulite has always been next to impossible for women to get rid of. But now, by taking advantage of the three most effective cellulite fighters ever developed, you can eliminate those lumps and ripples once and for all...
Finally, after loosening up cellulite debris internally with Cellulite TR3 and P.M., you'll be able to use the amazing Cellussage System, the innovative at-home treatment that actually liquefies cellulite deposits and draws out the residue. The combination of the deep-penetrating thermal creme, and the soothing, herbal maintenance lotion will help reduce existing cellulite deposits right away.
...the visible, immediate results of the Cellussage System...."
"Almost immediately, the Cellussage (sic) creme gently heats up the fatty tissues and liquefies the cellulite. You'll experience the loss of trapped liquid as the minerals and herbs in Cellussage (sic) drain off cellulite toxins, fluids and fat cells. After an hour the wrap is removed and the amazing results will be both visible and measurable. Your cellulite will have shrunk in both size and bumpiness...
The Cellussage (sic) System contains all the necessary herbal stimulants and thermal emollients to truly liquefy cellulite and draw it away from your thighs, hips, arms and abdomen. All you have to do is use the Cellussage (sic) System and watch your cellulite practically melt away permanently."
"Good News for Women with Cellulite
Cellulite has become one of today's most controversial subjects. Yet, despite claims by medical doctors that cellulite doesn't exist, millions of women know that cellulite is very real and is much more than an ordinary fat problem. Furthermore, new interpretations of the two most widely recognized cellulite studies indicate that cellulite is indeed a unique condition.
These studies show cellulite swelling and dimpling to be the result of accumulated, enlarged fat cells, excess fluids (edema) and broken down connective tissues. To counteract this condition, cellulite clinics have devised techniques that eliminate cellulite by removing excess fluids by improving circulation in connective tissues, and by aiding in fat cell metabolism.
For example, to remove fluids, diuretic herbs and minerals taken supplementally have been very effective. In addition, special body wrap treatments that draw out subcutaneous fluids have been visibly and immediately successful in reducing the size of cellulite areas. Another factor in cellulite elimination are nutrients such as niacin which flush damaged connective tissues with life-giving blood, and linoleic acid and lecithin which help protect connective tissues from decay. Finally, herbs are useful in increasing the rate of fat cell metabolism.
By combatting cellulite intelligently and scientifically, women finally have a chance to get rid of those stubborn lumps and bumps that defy removal by diet and exercise. Instead, the best answer to cellulite removal seems to be by nutritional and therapeutic means.
Complete Anti-Cellulite
Regimen, $46.95
Cellussage System
(creme, wrappe, lotion),
Cellulite Solution with
Cellussolve F
and niacin (50 tablets)
and Cellulite Nighttime
Formula with diuretic
herbs and kelp
(50 tablets)
If purchased
separately, $58.85"
I further find that the representation that Respondent's product, the Cellussage System, will rid the user of the condition commonly referred to as cellulite is materially false.
The sole evidence on this issue was the testimony of Complainant's witness, Dr. William R. Ayers. I found Dr. Ayers to be well qualified by training and experience to testify on the subject and a highly credible witness. Dr. Ayers is a board certified doctor of internal medicine. He is Associate Dean and Associate Professor at Georgetown University School of Medicine, Medical Director or the Diet Management Program at Georgetown University Medical School, and is highly experienced in the treatment of overweight individuals (Tr. 90-95, 108-111, CX-1).
Dr. Ayers testified that Respondent's product, the "Cellus- sage System" does not rid the user of the condition commonly known as cellulite (Tr. 105). He stated that "so-called cellulite" is excess sub-cutaneous fat which is stored between supporting fibers, called connective tissue, which fibers in turn bind the skin (Tr. 94-95). The relationship between the skin, the fat, and the connecting tissues creates the physical appearance referred to as cellulite (Tr. 95). Dr. Ayers also testified that this appearance is particularly prevalent in women, because the characteristics of the connecting fiber which binds the skin are due to the presence of estrogen-related hormonal changes (Tr. 94).
Dr. Ayers testified that the only way to rid a person of the condition known as cellulite is to create a calorie deficit in the individual. He stated that creation of a calorie deficit is necessary because so-called cellulite, regardless of its appearance, is excess fat (Tr. 95-96). This calorie deficit may be created either by vigorous exercise or by lowering caloric intake, although the amount of exercise necessary to create a sufficient calorie deficit would be difficult for an overweight person to perform (Tr. 95-96). He testified that, in his opinion, there is no other way that a person may rid herself of the condition known as so-called cellulite (Tr. 96).
Dr. Ayers described the actual effect that Respondent's product would have as follows:
a. The cream (CX-39), if applied to a user's skin, would cause a local reaction of heat and reddening of the skin due to astringents in the cream. It would also have a mild diuretic effect. Rubbing the cream on skin which exhibited signs of cellulite would not reduce the cellulite in any way, although the appearance of the skin would temporarily appear smoother due to the production of local fluid caused by the astringents in the cream. This change in appearance would last until the user ate or drank and the body consequently redistributed the water taken in as a result. This redistribution would occur in a matter of minutes to hours (Tr. 98-99; 102).
b. The wrap (CX-41), if wrapped around the area which had been rubbed with the cream and left on the body for about an hour, would cause some local perspiration (Tr. 100-101).
This would occur because the wrap would block the dissipation of heat from the skin's surface. However, Dr. Ayers testified that the moisture trapped by the wrap would tend to dilute the effect of the cream. The loss of water due to the increased sweating would be temporary, and would be reproduced as soon as the user ate or drank again (Tr. 101-102).
c. The maintenance lotion (CX-40), would have the sooth- ing effect of reducing the local irritation created by the cream. This would be true whether the user's skin exhibited signs of so-called cellulite or not (Tr. 104).
Finally, Dr. Ayers testified that Respondent's product, if applied exactly as directed on the product labels and the instructions in the booklet which accompanies the product (CX-38), would not reduce the user's so-called cellulite. The excess sub- cutaneous fat would still be present (Tr. 105).
Dr. Ayers testified that his opinions were in accord with the consensus of informed medical and scientific opinion (Tr. 107).
On cross-examination, Dr. Ayers testified that he has never tested Respondent's product, nor has he observed any one else's experiment or study of the product (Tr. 112). However, on re-direct examination, Dr. Ayers explained that the principles and ingredients of the product are all well known to internal medicine and the supporting basic sciences. He testified that, consequently, he did not believe a controlled clinical investigation of the product would be necessary to enable him to give his opinion about the Cellussage System. He testified that his attitude was in accord with the consensus of informed medical and scientific opinion (Tr. 117-118).
Therefore, based upon Dr. Ayers' undisputed and credible testimony, I find that Respondent's Cellussage System which combines a cream (CX-39), a plastic wrap (CX-41) and a "maintenance lotion" (CX-40) will not rid the user's body of excess sub-cutaneous fat or what is sometimes referred to as "cellulite" and that Respondent's representations to that effect are false.
1. The meaning of advertising representations is to be deter- mined in light of the probable impact of the entire advertisement on the person of ordinary mind. Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948); Peak Laboratories, Inc. v. United States Postal Service, 556 F.2d 1387, 1389 (5th Cir. 1977); Unique Ideas, Inc. v. U.S. Postal Service, 416 F. Supp. 1142, 1145 (S.D.N.Y. 1976).
2. Respondent's omission of any mention that the "Cellussage System" will create only a temporary change in a user's appearance misleads the reader into believing otherwise. Donaldson v. Read Magazine, supra, at 188. This applies to CX-2. In several of Respondent's advertisements, the "Cellussage System" is repre- sented as effective in eliminating cellulite permanently. See CX-5, 8, 12, 17, 19-24.
3. The average person reading Respondent's advertisements would interpret them substantially as characterized in Paragraph (3) of the Complaint.
4. A test purchase is not required from each of Respondent's addresses. Leisure Time Products, P.S. Docket No. 5/177, Initial Decision July 28, 1977, p. 10.
5. Expert opinion testimony need not be based upon tests of the particular product in issue to constitute sufficient evidence of false advertising. Reilly v. Pinkus, 338 U.S. 269, 274 (1949); Original Cosmetics Products, Inc. v. Strachan, 459 F. Supp. 496 (S.D.N.Y. 1978), aff'd. 603 F.2d 214 (2d Cir. 1979), cert. den. 444 U.S. 195 (1979); Skinny Suit, P.S. Docket No. 3/44 (P.S. Decision February 19, 1976, p. 6).
6. Complainant has established its case by a preponderance of the reliable and probative evidence of record. Donaldson v. Read Magazine, supra; Leach v. Carlile, 258 U.S. 138 (1922); Wilmont Products, P.S. Docket No. 6/46 (P.S. Decision July 19, 1979, p. 7).
7. Respondent's representations that its "Cellussage System" will rid the user of what is known as cellulite are materially false.
Therefore, I conclude that Respondent is engaged in conducting a scheme for obtaining money through the mail in violation of 39 U.S.C. § 3005 and that a False Representation Order, substantially in the form attached, should be issued against Respondent.