In the Matter of the Complaint Against

 SLIMSUIT
 at New York, NY 10010
 and 175 Fifth Avenue
 New York, NY 10010
 and at 507 Fifth Avenue
 New York, NY 10017

 P.S. Docket No. 12/5;

 06/11/82

 Cohen, James A.  

 APPEARANCE FOR COMPLAINANT:
 Hilda Rose C L 4 Wnberg, Esq.
 onsumer Protection Division 
 Law Department
 75 L'Enfant Plaza West,
 S.W. Washington, DC 20260

 APPEARANCE FOR RESPONDENT:
 J F 5 N erold W. Dorfman, Esq.
 riend, Dorfman & Marks
 75 Madison Avenue ew
 York, NY 10022

Respondent has appealed from the Initial Decision of an Administrative Law Judge which holds that, with regard to the sale of the product "Slimsuit," Respondent is engaged in a scheme for obtaining money through the mail by means of false representations in violation of 39 U.S.C. § 3005.

On August 12, 1981, the Consumer Protection Division, Law Department, U.S. Postal Service, filed a Complaint which alleges that Respondent falsely represents that:

"III

. . .

A. The accumulation of fluids is a major cause of excess weight, in most overweight persons.

B. Wearing Slimsuit will cause a loss of weight, which will not be readily regained, and which will last for more than a 24 hour period.

C. Wearing Slimsuit, without diet and exercise, is an effective weight reducing method for most overweight persons.

D. The Slimsuit will cause most overweight persons to lose pounds and inches.

(1) as they go about their normal daily activities;

(2) without exercise;

(3) without diet; and

(4) 'without any effort whatsoever.'

E. Wearing Slimsuit while maintaining one's normal activity level and without restricting one's caloric intake will cause, for most overweight persons:

(1) a loss of over 22 pounds;

(2) a loss of 6, 12 and even 30 pounds of bloat and fluid;

(3) a noticeable reduction in the stomach area after only a few days;

(4) a 2 to 5 inch loss off the waist;

(5) the disappearance of flab from the hips; and

(6) the slimming and shaping of the thighs.

F. Wearing Slimsuit while sleeping will significantly contribute to any weight loss normally occurring during periods of sleep.

G. Once you have lost weight, wearing Slimsuit occasionally will 'enhance and maintain your desired shape and figure . . . and prevent cellulose and sagging skin from forming.'"

In its Answer Respondent denied all of the allegations of the Complaint. At a hearing before an Administrative Law Judge, Complainant presented the testimony of James F. Winchester, M.D. Respondent presented no witnesses. On the basis of the testimony presented and the exhibits in the record, the Administrative Law Judge concluded that Respondent makes the representations alleged in Paragraph III of the Complaint and that the representations are materially false in violation of 39 U.S.C. § 3005.

Respondent has stated seven exceptions to the Initial Decision, each of which is hereafter addressed. The exceptions are based on 30 findings enumerated at the close of Respondent's brief. The substance of these listed findings has been addressed in connection with specific exceptions to the extent considered appropriate. Any of Respondent's numbered findings which have not been addressed were considered to be unrelated to an exception, unsupported, or to have no effect on the outcome of this proceeding.

Respondent excepts to the Administrative Law Judge's finding that its advertisement makes the representation alleged in paragraph III A of the Complaint that:

"The accumulation of fluids is a major cause of excess weight in most overweight persons."

Respondent contends that the language in its advertisement relied upon by the Administrative Law Judge to find the existence of this representation bears no relation to the allegation of the Complaint. Thus, it contends the finding is irrational and unsupportable. Respondent further argues that claims of "water loss" and "reduced bloat" in the advertisement do not constitute a representation that the accumulation of fluids is a major cause of excess weight in most overweight persons.

The Administrative Law Judge, in finding that the representation was made, relied upon the statement in the advertisement that the product works by breaking down "the deposits of cellular fluids that cause excess weight in bloated flab," and several references to losing weight and inches through the process of losing fluids (I.D., pp. 2-3). The specific portions of the advertisement cited by the Administrative Law Judge, as well as the overall impression of the advertisement, would lead the ordinary reader to conclude that the accumulation of fluids constitutes a major cause of excess weight. Thus, the finding of the Administrative Law Judge is supported by the record.

Respondent excepts to the Administrative Law Judge's finding that its advertisement makes the representation alleged in paragraph III B of the Complaint that:

"Wearing Slimsuit, will cause the loss of weight, which will not be readily regained, and which will last for more than a 24 hour period."

Respondent argues that the finding that the representation is made is irrelevant because the evidence establishes that the garment will cause weight loss through water loss, and there is no credible evidence in the record that such a weight loss will only be temporary.

The Administrative Law Judge found the representation to be explicitly made at various places in Respondent's advertisement (I.D., p. 3). A review of the record supports this finding. The representation was found to be false based upon testimony that Slimsuit would not cause any reduction in body fat and testimony describing the manner through which the body maintains its fluid level (I.D. pp. 6-8).

The essence of Respondent's argument is that the thirst mechanism in the body is the primary means by which fluids are replaced. According to Respondent since an individual retains control over the intake of fluids in response to the thirst mechanism, it was improper to find that everyone replaces fluid losses of the sort caused by Slimsuit within 24 hours.

The evidence relied on by the Administrative Law Judge supports his conclusion that fluid loss is a temporary phenomenon in the healthy individual and that replenishment of fluids will occur within a short period of time (I.D., pp. 6-8). Furthermore, Respondent's advertisement would lead the ordinary reader to believe he would not have to suppress or control his thirst in order to obtain the weight reduction benefits of the use of Slimsuit (CX 1-3). In addition, the record establishes that fluid loss through sweating would be offset to some extent by urine reduction (Tr. 29-30). Finally, the record supports the Administrative Law Judge's finding that significant fluid loss without replenishment could cause serious illness or death (I.D., p. 8).

Accordingly, the Administrative Law Judge properly concluded that weight loss due to fluid loss is temporary in nature. Respondent's contention to the contrary is without merit.

Respondent takes exception to the Administrative Law Judge's finding that its advertisement makes the representation alleged in paragraph III C of the Complaint that:

"Wearing Slimsuit, without diet and exercise is an effective weight reducing method for most overweight persons."

Respondent argues that the testimony establishes that Slimsuit will cause weight loss through loss of water and therefore, the claim, if made, has not been proven false in this proceeding.

The Administrative Law Judge found the claim to be made by the language of the advertisement which states "No exercise, No dieting." This language in the context of the entire advertisement, which throughout promises weight loss and loss of inches, would lead the ordinary reader to conclude that the use of the product, without dieting or exercise, is an effective weight reducing method. The Administrative Law Judge found the representation to be false because the use of Slimsuit would not reduce body fat which is the source of excess weight in the vast majority of overweight people (I.D., p. 8).

The record does not disclose the amount of fluid loss which would result from the use of Slimsuit during normal activity. Regardless of the amount of lost fluid, as previously found, any resulting weight reduction would be temporary and not a means of achieving permanent weight loss. As the Administrative Law Judge properly found, the evidence establishes that the overweight condition is caused by excessive fat, and the medically accepted treatment for this condition involves diet, exercise, and behavior modification (Tr. 20-22). Since the use of Slimsuit would have no effect on fat reduction (Tr. 24), it cannot be considered an effective weight reducing method. Accordingly, Respondent's exception is without merit.

Respondent excepts to the Administrative Law Judge's finding that its advertisement falsely represents that:

"Slimsuit will cause most overweight persons to lose pounds and inches:

(1) as they go about their normal daily activities;

(2) without exercise;

(3) without diet; and

(4) 'without any effort whatsoever.'"

Respondent alleges that evidence in the record supports a finding that the Slimsuit will cause most persons to lose pounds and inches through water loss regardless of their activities and without a special diet. Therefore, it is argued that the claims alleged, if made, have not been proven to be false.

The Administrative Law Judge found the claims to be made based upon the explicit language of the advertisement (I.D., p. 4). A reading of the advertisement confirms this finding. The Administrative Law Judge also found the representations to be false, based on the unrebutted testimony that the use of Slimsuit would have no effect on an individual's weight and girth because fluid losses caused by sweating would be readily replenished through the normal functioning of the body's thirst mechanism.

The Administrative Law Judge's findings are supported by the record. The evidence does not support a finding that Slimsuit will cause most overweight persons to lose pounds and inches through water loss. As previously found, the use of the garment will not cause permanent weight loss. Unrebutted testimony about the fluid balance mechanism of the body, and the process by which the body retains fluid and causes additional intake of fluid, would render Slimsuit ineffective for weight reduction (Tr. 33, 37). Furthermore, the evidence establishes that the use of Slimsuit will not reduce the size of any specific body area (Tr. 37). Accordingly, Respondent's exception is without merit.

Respondent excepts to the Administrative Law Judge's finding that the following representations are made and that they are false:

"Wearing Slimsuit while maintaining one's normal activity level and without restricting one's caloric intake will cause, for most overweight persons:

(1) a loss of over 22 pounds;

(2) a loss of 6, 12, and even 30 pounds of bloat and fluid;

(3) a noticeable reduction in the stomach area after only a few days;

(4) a two to five inch loss off the waist;

(5) the disappearance of flab from the hips; and

(6) the slimming and shaping of the thighs."

Respondent argues that Dr. Winchester testified that a Slimsuit wearer may lose water weight of various amounts, depending upon the weight of the person, and that the loss would result in a general overall reduction in girth. This, it is argued, would cause a reduction of girth from every area of the body including the stomach, waistline, hips and thighs.

The Administrative Law Judge found the representations were explicitly made in Respondent's advertisement. A reading of the advertisement confirms the Administrative Law Judge's finding. The Administrative Law Judge found the representations to be false based upon testimony by Dr. Winchester that a loss of 22 pounds would be highly unlikely and that, in general, fluid loss such as that caused by Slimsuit would be temporary in nature and not localized.

Dr. Winchester specifically testified that a loss of 22 pounds would be highly unlikely (Tr. 35). He also testified there is "very little" likelihood that a loss of six pounds of bloat and fluid would be sustained (Tr. 42). He further testified that he did not see how Slimsuit could cause a reduction in specific areas in the body (Tr. 37). More specifically, he testified that the stomach would not be noticeably reduced, nor would a two to five inch loss from the waist area occur from the use of Slimsuit (Tr. 37-38).

Dr. Winchester also testified that it would be highly unlikely from Slimsuit to cause a loss of fat content from the hips (Tr. 47-48). While there is some disagreement about the meaning of the term "flab," the record supports a finding that in the context used in the advertisement, it is synonymous with fat and that the use of Slimsuit will not cause the "disappearance of flab from the hips." (Tr. 48-50) Dr. Winchester also testified that the suit would not slim or shape the thighs unless it was extremely constrictive, which it is not (Tr. 38; CX-5). Thus, the record supports the finding that the use of Slimsuit would not slim and shape the thighs.

Accordingly, the Administrative Law Judge's finding with respect to the existence and falsity of the representation alleged in paragraph III E of the Complaint are supported by the evidence in the record. Respondent's exception is therefore without merit.

Respondent excepts to the Administrative Law Judge's finding that its advertisement falsely represents that:

"Wearing Slimsuit while sleeping will significantly contribute to any weight loss normally occurring during periods of sleep."

Respondent contends that testimony in the record establishes that at least a half pint more water would be lost wearing Slimsuit during periods of sleep. Therefore, it is argued that the falsity of the representation has not been proven.

The Administrative Law Judge found that testimony in the record establishes that wearing the Slimsuit would have little effect on weight loss during periods of sleep (I.D., p. 10). As a result, he concluded that the representation was false.

A review of the record does not disclose testimony or other evidence that a half pint more water would be lost by using Slimsuit during periods of sleep. Thus, the record does not support the claim of Respondent that uncontradicted testimony establishes the referred to half pint of water loss. To the contrary, the uncontradicted testimony is that Slimsuit would have very little effect on weight loss during sleep (Tr. 38). Accordingly, Respondent's exception is without merit.

Respondent excepts to the Administrative Law Judge's finding that the following representation is materially false:

"Once you have lost weight, wearing Slimsuit occasionally will 'enhance and maintain your desired shape and figure ... and prevent cellulose and sagging skin from forming.'"

Respondent argues that uncontradicted testimony establishes that a Slimsuit user will lose significant amounts of water weight and experience overall girth reduction. Conceding that the reference to "cellulose" may have been intended to refer to "cellulite," it is argued that any resulting misrepresentation is not material. The Administrative Law Judge found that the representation was materially false.

The record does not support Respondent's contention that uncontradicted testimony establishes that the use of Slimsuit will result in the loss of significant amounts of water weight and overall girth reduction. To the contrary, Dr. Winchester testified that Slimsuit would do little to "enhance and maintain" the desired shape and figure of the user. Likewise, he testified that it would be of no help with sagging skin and have no effect on cellulose (Tr. 39-40). It is concluded, therefore, that this representation is false. The false representation is material because its natural effect is to induce the purchase of Respondent's product. Standard Research Labs, P.S. Docket Nos. 9/63 and 9/64 (P.S.D. August 31, 1981). Thus, Respondent's exception is without merit.

After consideration of the entire record and Respondent's exceptions, it is concluded that Respondent is engaged in a scheme to obtain money through the mail by means of materially false representations. Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued with this decision.