In the Matter of the Complaint Against BABA DISTRIBUTING 19125 Beckwith Terrace at Irvine, CA 92715-3502 and SPORTS RESEARCH, CORP. 3425 Mulldae Avenue at San Pedro, CA 90732-4719 at P. O. Box 1471 San Pedro, CA 90733-1471 and at 761 Basin San Pedro, CA 90731-1301 P.S. Docket No. 16/144; P.S. Docket No. 16/145; 09/30/83 Duvall, William A. APPEARANCES FOR COMPLAINANT: Kennet h N. Hollies, Esq. Consumer Protection Division Law Department, United States Postal Service Washington, DC 20260-1100 John R. Mallory, Esq. Western Region, United States Postal Service P. O. Box 26065 Salt Lake City, UT 84126-0065 APPEARANCE FOR RESPONDENT: Kenneth J. Poole, Esq., P.C. #3 Del Amo Fashion Center Torrance, CA 90503
Statement of the Case
The Complaints in the above-styled cases were filed on May 19, 1983. In the Complaints it is alleged that Sports Research, Corp. and Baba Distributing, respectively, (Respondents) are engaged in conducting a scheme or device for obtaining money through the mail by means of false representations within the meaning of 39 U. S. Code § 3005. Both Respondents market the same product, use the same sales literature and, thus, make the same representations. The Complaints are identical except for their captions, the exhibits attached to the Complaints, and the references to the exhibits.
Complainant alleges that attention of prospective buyers is attracted by means of direct mail advertisements, copies of which are attached to the respective Complaints. Complainant further alleges that in certain of these advertisements Respondents, directly or indirectly, in substance and effect, by affirmative statements, implications, or omissions, make the following allegedly materially false representations:
"a. In combination with exercise, topically applied BBF Maxercise Creme will draw out and extract excess fluid from specific body fat deposit areas such as the waist, hips, stomach, buttocks or thighs.
"b. In combination with exercise, topically applied BBF Maxercise Creme will metabolize and burn stored fat and cellulite in specific problem fat deposit areas.
"c. Topically applying BBF Maxercise Creme to the waist, hips, buttocks, and thighs will result in a smaller waist, hips, buttocks and thighs (as measured in inches) for the user."
In timely Answers to the Complaints filed by Baba Distributing (Baba) and Sports Research, Corp. (Sports), each denied that it was conducting an illegal scheme under 39 U. S. Code § 3005; admitted that it uses the Exhibits attached to the respective Complaints; admitted the use of, or adopted, paragraph 3.a. of the Complaints as a representation; denied that it makes the representations set forth in paragraphs 3.b. and 3.c.; and denied making any false representations.
The cases were consolidated for hearing, which was held on August 3, 1983, in Los Angeles, California. Counsel for both parties participated in the examination and cross-examination of witnesses, and Proposed Findings of Fact and Conclusions of Law were submitted on behalf of both parties on September 9, 1983.
1. Baba Distributing, 19125 Beckwith Terrace, Irvine, CA 92715-3502 and Sports Research, Corp., 3425 Mulldae Avenue, San Pedro, CA 90732-4719; P.O. Box 1471, San Pedro, CA 90733-1471, and 761 Basin, San Pedro, CA 90731-1301, are engaged in the sale through the mail of a product called BBF Maxercise Creme.
2. In the sale of this product Respondents use certain advertising matter, copies of some examples of which were attached to the Complaints as follows:
a. Exhibit 1 to the Complaint in Sports (Docket No. 16/145); and
b. Exhibits 1 and 2 to the Complaint in Baba (Docket No. 16/144).
Copies of these exhibits were received in evidence at the hearing as CX-1; CX-2; and CX-3. (Attached hereto, respectively, as Appendices A, B and C)
3. Respondents solicit remittances of money through the mail to the above addresses for the product. (App. A and B)
The rules for interpreting advertising matter have been developed, established and followed through the years in many court and administrative decisions. These rules, the essence of which is now stated, are applied in this case.
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).
4. Respondents make the representation stated in paragraph 3.a. of the Complaint.
The following language in the advertising literature supports the finding that Respondents make the representation.
With vigorous exercise, BBF draws out and extracts excess fluid from fat deposit areas such as the waist, hips, stomach, buttocks, or thighs]
(App. A and B)
5. Respondents make the represntation set forth in paragraph 3.b. of the Complaint.
Under the picture in the upper left-hand corner of page 2 of the mailing piece whichis App. C there is the caption "If exercise alone is not totally effective in losing inches in your problem fat deposit and/or cellulite areas, BBF Maxercise Creme is definitely for you]" Immediately following this caption are four paragraphs which set forth, respectively, (1) Respondents' statement of what BBF Maxercise Creme is designed to do; (2) the finding by Respondents that there are "millions of men and women who exercise vigorously but can't seem to lose inches and weight in particular problem fat deposit areas"; (3) the definition of "fat deposit areas"; and (4) Respondents' assertions as to the procedures to be followed and the effects that will be produced by the use as directed of Respondents' product. In the next paragraph it is strongly suggested to the reader that vigorous exercise, alone, will not remove the excess fluid and fat from the fat deposit areas. People who perspire easily but still have "problem areas" are told that "The object of using BBF MAXERCISE CREME is to draw and extract that trapped excess fluid from the inside out of the fat cells."
All of the foregoing introductory material clearly engenders in the mind of the reader the belief that for millions of men and women, exercise in and of itself will not be effective in removing excess weight from the "fat cell areas" because the body's functions, alone, are inadequate. There is no cause for despair, however, because in the next paragraph there is a strong reassurance as to the part played by Respondents' product in the process of metabolism. In answering the question "How long will it take to see results," it is stated, in part:
"***Sometimes you will not see a noticeable fluid loss during your first several workouts with BBF. Do not be discouraged as the BBF is still working to help break down the fat deposits and the fluid loss may begin only after two to three weeks of workouts. Remember that the BBF is still working by insulating and concentrating heat in the fat cell areas where stored fat is being burned on an accelerated basis."
Thus, the prospective customer is assured that these inadequate body functions can accomplish the desired weight loss when those functions are assisted by the use as directed of BBF MAXERCISE CREME.
6. Respondents make the representation incorporated in paragraph 3.c. of the Complaint.
In the 3rd column of page 2 of App. C there is the following paragraph:
"How about using BBF with rubber sauna belt trimmers?
Rubber waist, hip and thigh trimmers by themselves are only partially effective in trimming inches but, when used with BBF MAXERCISE CREME, they are extremely effective. The trimmers provide a super heat insulation of localized fat deposit areas yet still allow the pores to open and excess fluid to drain from underneath the trimmers. We recommend that you try our fashionable BBF WAIST TRIMMERS, BBF HIP TRIMMERS, or BBF THIGH TRIMMERS for maximum results with BBF MAXERCISE CREME."
On page 3 of App. C the following quotation contains the endorsement of the product by Dr. Ralph Korljan, M.D., San Pedro, California:
"I use and fully endorse BBF MAXERCISE CREME for its inch reduction and weight loss results."
In no place in either of the above quotations is there any reference to exercise, but the quotations refer to "trimming inches" or "inch reduction." In addition there is the reference in the first quotation in this Finding to Respondents' "fashionable BBF WAIST TRIMMERS, BBF HIP TRIMMERS, or BBF THIGH TRIMMERS." This language suggests that these TRIMMERS are suitable for wearing when one goes out socially or to one's place of employment. Neither of these activities usually involves exercise, but BBF is said to be very effective while being used with any of the recommended garments.
7. BBF MAXERCISE CREME contains the ingredients shown on CX-7, as follows:
"Mineral oil; Petrolatum; Microcrystalline wax; Fragrance; Butylparaben; Retinyl Palmitate (Vit. A) Ergocalciferol (Vit. D), TocopherylAcetate (Vit. E); Jojoba Oil; Aloe Vera Lipo-Quinone Extract. Net Wt. 6.5 ozs."
8. Respondents, in App. C, describe as follows the mechanisms by which the use of BBF Maxercise Creme accomplishes the desired inch or weight loss:
"How does BBF work on fat deposit areas?
"BBF is applied to problem fat deposit areas before exercise begins. At first, BBF acts as a heat insulator as the internal body heat begins to build up with exercise and an increased heart rate. The BBF allows the pores to open and BBF begins to draw out and extract the excess fluids which are trapped in the fat cells. The effect of this is that the heart being accelerated from exercise is able to metabolize or burn the stored fat in the fat cells at an increased rate since there is less fluid in the fat cells. This fluid while in the fat cells acts like a coolant retarding the amount of heat which the body can generate within the fat cells. By removing this fluid in conjunction with exercise the body can burn stored fat more efficiently and effectively."
9. Postal Inspector Ralph H. Cook testified that in the course of his duties he was given the assignment as fraud inspector at the office of the Inspection Service located at 5th Street and Grand Avenue, Los Angeles, CA. At that time the instant cases were transferred to him from the Postal Inspector whom he relieved. By that time the product had been ordered and delivered but it had not been tested. He examined the advertising and the product and decided that the product should be tested. He then delivered the materials to Dr. Zimmerman with a request for the doctor's opinion as to the efficacy of the product to accomplish the results for which it was advertised. (Tr. 61-62)
10. Complainant's first medical expert witness was Ernst J. Drenick, M.D., Chief, General Medicine Section, Medical Intensive Care Unit and Internal Medicine Clinic of the Veterans Administration Hospital, Los Angeles, California, and Professor in Residence, Department of Medicine, University of California at Los Angeles (UCLA), Los Angeles, California. Dr. Drenick is certified as a Diplomate of the American Board of Internal Medicine. Dr. Drenick is a member of eight (8) professional societies and he is on the Editorial Board of eleven (11) professional publications, some of which deal specifically with obesity, metabolism, nutrition and related subjects. He is a consultant to state and Federal agencies, including the courts, on various matters such as complications of obesity surgery, and dietary and nutritional treatments for obesity. Dr. Drenick's writings, and those to which he has contributed, include over 140 scientific and medical papers, among which are entire chapters written by him and included in books on various medical subjects, abstracts in different journals, and short communications, editorials, case reports and letters in various professional publications. (CX-8)
11. A. Dr. Drenick expressed his views of the Respondents' program in a memorandum which was received in evidence (CX-9). Some of his opinions are (paragraphs referred to below by Dr. Drenick are found in App. 3):
(1) In paragraph 3 on page 2 it is claimed that fat bulges contain excess fluids and toxins stored in these areas by the body. This statement is untrue because the bulges are nothing but fat tissue which may be present because of excess food intake or because of genetic traits.
(2) The ingredients of BBF are the usual oils, fragrances, vitamins and aloe extract present in various commercial skin creams. None has any effect in accelerating or promoting fat loss locally or systemically.
(3) The endorsement by an M.D. is of no value and it is unsupported by any evidence.
(4) If an oil substance is spread over the skin, evaporation of sweat will be impaired and heat loss through the skin diminishes. This would tend to reduce rather than to increase caloric losses.
(5) The reason that more perspiration will be visible after exercise in an area that has been covered with an oily substance is the result of delayed evaporation of water droplets which are encased by a thin oily film remaining on the skin as visible sweat. The sweat emanating from normal skin is secreted in minute droplets, evaporated more rapidly, and therefore, would seem to be producing less sweat.
11. B. In his direct testimony Dr. Drenick gave it as his opinion that the application of BBF will have no influence on the size of excess fat deposits or bulges. The only part of Respondents' program that will have any effect on such deposits is the energy expenditure that is brought about by vigorous exercise. (Tr. 16) Weight loss as a result of fluid loss via the sweat glands is immediately compensated for when the individual drinks the commensurate amount of liquid, because if the exercise results in dehydration, with the next drink the body will come back to the original balance of fluids. (Tr. 20) There is no fluid within the fat cell, and, in fact, within the fat cell there is only lipid, only fat. (Tr. 36)
11. C. On the body where the cream has been applied, since it contains a fatty substance, there would be more visible liquid droplets there than on an area where no cream was applied. The reason is that evaporation of sweat from a skinny area that has been lubricated with an oily substance will be retarded compared to a portion of the skin that has not had any oil applied where normal evaporation, normal radiation and normal collection of heat will take place. If different types of oily or fatty substances were put on two parts of the body one may see a difference, also, depending on how permeable one oil is to fluid as compared to the other.
11. D. However, neither of these manifestations, that is, showing the fluid droplets on the skin or showing less fluid on another portion of the skin, really has anything to do with fat bulges or excess fluid under that area. The fluid does not come from that area. The fluid comes out of the blood stream and goes from the blood stream into the sweat glands and the sweat glands secrete the sweat. How much of it you see on the skin has absolutely nothing to do with the fat bulges under it. The fluid does not come from those fat bulges. It comes from the inside of the body first from the blood stream and then from the fluid between the cells all throughout the body, and certainly not from the areas underlying the fatty applications. (Tr. 49-50) There is no physiological reason known to Dr. Drenick, Respondents suggested no plausible reason, and there is nothing in the medical literature to warrant the belief that putting oil on the skin would accelerate fat loss. (CX-8, p. 17)
11. E. Dr. Drenick's opinions are in accord with the mainstream of scientific and medical thought on the matters concerning which he testified. (Tr. 27)
12. Complainant's second medical expert witness was Murray Carbys Zimmerman, M.D. Dr. Zimmerman attended higher educational institutions and received degrees as now indicated: Das Albertinum (Munich, Germany), 1936-1937; Pasadena City College, 1937-1939; University of Southern California (B.SC.), 1940 (double major - Zoology and Chemistry); University of Southern California School of Medicine, M.B., 1943, M.D., 1944; Graduate Course, Dermatology, University of Paris (Sorbonne), 1946 (Paris, France); Senior Resident, Dermatology, Wadsworth Veteran's Administration Hospital, Sawtelle, California, 1946-1948; and Post-Graduate Course (Dermatology) Graduate Medico-Chirurgical School, University of Pennsylvania, 1948-1949. He became a Diplomate of the American Board of Dermatology, 1949, and a Diplomate of the American Board of Dermatopathology, 1976. Dr. Zimmerman has, or has had, memberships and offices in nine (9) professional societies. He is consultant to the Fraud Division of the Federal FDA and the California FDA since 1972; and in 1976 he was a Director of the Medical Legal Society of Southern California, of which organization he was President in 1979. Dr. Zimmerman's affiliations have included: Medical Corps, Army of United States, 1944-1946; Attending Specialist (Dermatology), Wadsworth Veteran's Administration Hospital, 1949-1952; Instructor in Medicine (Dermatology), University of California at Los Angeles School of Medicine, 1949-1952; Instructor in Medicine (Dermatology), University of Southern California School of Medicine, 1954-1957; Assistant Professor of Medicine (Dermatology), University of Southern California School of Medicine, 1957-1960; Attending Specialist (Dermatology), Los Angeles County General Hospital, 1954-1960; Chairman, Dermatology Staff, Los Angeles County General Hospital, 1960-1961; Associate Professor of Medicine (Dermatology), University of Southern California School of Medicine, 1960-1975; Clinical Professor of Medicine (Dermatology), 1975 to date. (CX-15)
13. A. Dr. Zimmerman stated that insofar as Respondents' claims with respect to spot reduction are concerned, there is no such thing as spot fat reduction with this product 1/ or any other product. (Tr. 53) BBF contains nothing that will penetrate the skin. Anything with an oily film would keep sweat from evaporating for a while, so BBF would probably act as a mild insulation for a little while, but to no greater depth than to one two hundred fiftieth (1/250th) of an inch. Raising the skin temperature in this way would have no effect on metabolism either systemically or locally. Fat is lost by the body's making a demand for energy that exceeds that which is supplied by the calories that are taken in. (Tr. 53-54)
13. B. Heating a portion of skin to a higher temperature than the surrounding skin would have no effect on overall body temperature. This is so because the overall body temperature would compensate for this. (Tr. 55)
13. C. Sweat glands are located in the dermis and not in the epidermis as is suggested in the second complete paragraph, column 2, page 2 of Appendix 3. The dermis is the layer of true skin that is under the epidermis and the sweat glands are in this layer. There is another set of sweat glands called apocrine sweat glands which are deeper in the fat, but those are seen in the arm pits and the groin and they have a rather pungent odor. Modified apocrine glands are located in the ear canals and in the lactating breast. There are more sweat glands in some areas than others. The palms, soles, forehead, and arm pits, have more sweat glands than other areas but they are pretty generally distributed. Sweat glands pick up serum from the adjacent area outside the glands. It has been said that a human being is a bag of salt water with a few cells floating around in it so the whole body is salt water and the sweat glands pick up the serum from outside that bathes them as it bathes everything in the body, and secrete the sweat inside. Then sweat starts coming up the duct and the duct communicates with the skin like a well coming up and communicating with the surface. When the sweat comes out of this duct if it's not excessive the individual is not aware of it. It is called insensible sweating, of which everyone produces a quart or more a day. If one is aware of it, if one sweats more profusely, if one is in a very humid environment, or if one puts oil or Saran Wrap on the skin so the sweat can't get out, then the person is aware of the sweat being there, but it is there all the time. (Tr. 56)
13. D. Commenting on that portion of the paragraph captioned "How does BBF work in fat deposit areas?", in which it is stated, generally, that when BBF is applied it works as a heat insulator as the internal body heat begins to build up with exercise, and then it allows the pores to open and begins to draw out and extract the excess fluids which are trapped in the fat cells, Dr. Zimmerman said that this portion of the advertisement is "Absolute nonsense." He said that the method just outlined is not a way to lose weight. More specifically, the advertisement contains an inaccurate statement of the functioning of the pores. The pores do not open and close - they are static. Secondly, BBF has no effect upon the rate of sweat production. Next, the fat is not in the skin, it is under the skin. The fluid secreted by sweat glands is not derived from fat but is derived from the serum or plasma that surrounds the sweat gland itself. The sweat gland is not in the fat, it is in the dermis. (Tr. 57-58)
13. E. Dr. Zimmerman had been present, had heard, and agreed with the testimony of Dr. Drenick. The testimony of Dr. Zimmerman and Dr. Drenick was in conformity with the consensus of scientific and medical thought in respect to the matters about which they testified. (Tr. 58-59)
14. Respondents' first witness was Jeff Pedersen, President of Sports Research Corporation, a Respondent herein. Mr. Pedersen is a graduate of the University of Southern California, but he has no formal scientific background. (Tr. 103)
15. A. Mr. Pedersen either writes or supervises and approves what is said in the mailing piece which is Appendix 3 to this decision. He stated that knowledge in the field in which BBF is intended to be used is constantly evolving and it has been thus for five years, but there are no medical books on the subject. Thus, the advertising pamphlet (App. 3) and the magazine advertising is constantly subject to change. To the date of the hearing, about 87,000 jars of BBF had been sold, of which only 133 were returned. (Tr. 76, 78, 80, 85)
15. B. Mr. Pedersen and three volunteers participated in a demonstration of the use of the product.2/ Four persons took part in the demonstration - 3 young men and 1 young lady. The three young men drew lines with lipstick from the center of the neck to the navel, and the young lady used a lipstick to draw a line from approximately the lower edge of the sternum to the navel. Each participant then applied a coat of BBF to one side of the lipstick line approximately to an imaginary line extending from beneath the center of the arm pit to the waist. For approximately the same distance to the opposite side of the line of lipstic, each person applied a coating of Wesson Oil. Next each participant proceeded to jump rope rapidly for a period of approximately 12 to 15 minutes. Results were noted as follows:
(1) On each participant, the area to which BBF had been applied had much more perspiration on it than did the area to which the Wesson Oil had been applied.
(2) Thermogram readings were taken on both areas of each participant and the device registered more blue or blue-green area (said to indicate higher temperature) on the BBF side than it did on the Wesson Oil side, on which the thermogram registered more brown area (said to represent a lower temperature).
At the time this demonstration was given, the foregoing results were inconclusive and uninformative insofar as the issues of this case are concerned for the following, and perhaps other, reasons:
(1) It is a matter of common knowledge that different persons have different rates of perspiration, and there was no showing as to where on a scale of rate of normal perspiration production each participant would fall. In short, there was no individual standard of comparison.
(2) It is not known what the comparable degrees of permeability of BBF and Wesson Oil are.
(3) The amounts of neither substance applied to the participants were measured or otherwise known, nor is it known to what extent, if any, the thickness of the application of either substance affected the rate or amount of sweating.
(4) The thermograms, presumably, showed differences in temperatures of the bodies after exercise, but the amounts of the before and after temperatures were not shown. Nor was the significance of the elevated temperatures clarified except that it fitted in with Respondents' theory that the heat and BBF cause the excess fluid in the fat cells to be removed, taking away its coolant effect and permitting more effective utilization of the heat "to burn the stored fat." (App. 3, p. 2, col. 1, pars. 4 and 5)
15. C. After the demonstration had been completed Mr. Pedersen was asked what he intended to show by it. He replied:
"First of all I wanted to show that it takes vigorous exercise over a period of time to --first regularly and vigorously that's the whole thing we say from now on is just for those type of people if that's okay. It's to show that by putting the BBF on an area that is a problem area that people haven't been able to break down, which we described where that usually is, that over --you can heat up the area and the sweating shows that the body is dissipating heat it's getting rid of heat so you know if that the body is heated up inside by the thermogram or whatever you show; and by doing that there are many things that are going on in the body in that localized area over other areas and that's all we were trying to show. Then we would teach people what we feel would be happening." (Tr. 87-88, 90)
15. D. Mr. Pedersen said he "hypothesizes" that the mechanism by which BBF causes the loss of inches is, in part, that because BBF creates a radiation shield, as well as a vapor shield, heat generated in the BBF-covered area will not escape the body by radiation but will be reflected by BBF into the body.3/ The advantage of this is that "the heat will build up and the sympathetic fibres will secrete an enzyme called acetalcholine," which will cause increased sweat, which, in turn will cause the release of bradykinin, a polypeptide which releases another vasodilator causing another three-fold vasodilation. (Tr. 94)
15. E. Mr. Pedersen described a test performed on him by a doctor in St. Louis. Although, the test was not sufficiently conclusive to form the basis of a medical report, Mr. Pedersen described the effect produced by the test. (Tr. 95-96) Further, he was unable to obtain a professional opinion as to the effect of the use of BBF as directed. (Tr. 98) He also stated that no one has ever been able to write a definitive paper on exactly what happens as a result of the use of BBF. (Tr. 99)
16. Dennis B. Smith, Ph.D., was the last witness to be called by Respondents. Dr. Smith's education, training and experience are stated in his Curriculum vitae (RX-1) which includes, but is not limited to, the following information:
9/57 - 6/59 L.A. Valley College A.A. Chemistry Spanish
Van Nuys
9/59 - 1/62 University of California B.A. Zoology Chemistry
Riverside
6/62 - 3/67 University of California Ph.D. Medical Immuno-
Los Angeles Microbiology chemistry
5/71 - 7/71 Honeywell Computer Control Hardware Software
Division, Sherman Oaks, CA
-Certificate-
UNDERGRADUATE STUDIES (semester units): biology(4); comparative anatomy(8); microscopic anatomy(4); genetics(3); evolution(3); statistics(3); embryology(4); parasitology(2); chemistry(25); biochemistry(7); spanish(25); math(21); calculus, linear algebra; physics(8).
GRADUATE STUDIES AT UCLA: medical bacteriology, virology, mycology, parasitology; tropical medicine; immunogenetics; immunochemistry.
TITLE OF DISSERTATION FOR DOCTORATE: A Precipitin-Gel Analysis for Host-Parasite Relationships Demonstrated with Culture Systems of Mouse NCTC-2071 Cells and Human NCTC-3075 Cells Parasitized by Toxoplasma sondii. Professor Marietta Vose was in charge.
PROFESSIONAL ORGANIZATION MEMBERSHIP: Forth Interest Group.
ARTICLES PUBLISHED:
1. Smith DB, 1968, New Immunochemical System for Study of Intracellular Host-Parasite Relationships. Nature 281,287.
2. Smith DB, 1968, Three Methods for Increasing Sensitivity of Immunodiffusion Reactions. Analytical Biochemistry 22,543.
17. A. Dr. Smith, Respondents' second, and the last witness, after saying at first that he did not think he could, undertook to explain what BBF does and what was shown by the courtroom demonstration. He said that the three principal ingredients of the product are mineral oil, vaseline, and microcrystalline wax. He was much more interested in the last-mentioned ingredient and said that it may work like what is called a liquid crystal. As such, it might well be a reflector of the infrared and reflect the heat that comes from the body back into the body. The witness also said that BBF can be a barrier to the evaporation process. If heat can be trapped in a particular site, then sweating can be increased proportional to the amount of increase in heat. But that sweat runs off without vaporizing at the surface of the skin. (Tr. 115-118)
17. B. Dr. Smith stated that the use of BBF is comparable to having a portable water sauna by means of which spot reducing is now possible. Whether spot reducing can be accomplished can not now really be answered. On the other hand, if a local area can be heated sufficiently (presumably by violent exercise & BBF) an enzyme (acetalcholine) will cause the local release of bradykinin, a vasodilator, since it is not a systemic substance. The bradykinin is located in interstitial spaces around the sweat gland, and if that gland is secreting sweat there will be released from the sweat gland a substance which is not bradykinin, but when acted upon will be bradykinin in the form of many, many bradykinin rolled up. The sweat gland has to continue to produce bradykinin in order to keep its effect going.. The bradykinin dilates the blood vessels so as to facilitate the bringing in of the substances that circulate in the blood stream and which keep the process going. (Tr. 120-125)
17. C. By causing the heart to work harder in performing the vigorous exercise and by having to pump the blood to the surface of the skin to rid the body of heat, BBF provides the extra benefit of strengthening the heart --assuming the individual is a healthy athlete. (Tr. 126-128)
17. D. Near the end of his testimony, Dr. Smith was asked the following questions, to which he gave the answers shown:
"Q Can you say conclusively that BBF does spot reduce fat?
"A I could say now based on possible mechanisms and the credulence of just testimony it's highly probable that there's some degree --I mean you can lessen the handicap of an area. I feel this way and again it's highly probable. Certainly I would invest a lot in this hypothesis because now it's easier to test.
"Q It's still to be proven though?
"A Oh, yeah, yeah." (Tr. 134-135)
***
Q. "Now, you were talking about this iridescence, now the exercise causes the body to heat itself up and this substance is then put on the body or maybe put on beforehand and I don't know if it matters, but in any event, the substance is on the body and this iridescense causes the heat to be reflected into the body again, is that right?
"THE WITNESS: That's a possibility that could be tested but it's a long ways from fact. It's not even --it's just an hypothesis at this stage." (Tr. 139-140)
18. The representations made by Respondents are material because they are of such character as to be expected to, and do, cause readers of Respondents' advertising matter to buy the product.
19. The representations found to have been made by Respondents are false as a matter of medical fact.
A. Both medical experts called as witnesses by Complainant testified that the benefits represented by Respondents to be available to persons who use Respondents' product as directed can not occur because they are said to result by processes that are physical impossibilities. (FF.11D and 13D)
B. Respondent Pedersen testified that there are no medical books in which the efficacy of the BBF method is affirmed, and that he was unable to find a medical doctor or other expert who would give him an opinion as to the effect of the use of BBF as directed. (FF. 15A and 15E)
C. Respondents' expert witness said that Respondents' claims for its product had never been proved. (FF. 17D)
D. Respondents' expert witness testified that one of the principal underpinnings for Respondents' theory concerning the effect of the use of BBF is "a long ways from fact. *** it's just an hypothesis at this stage." (FF. 17D)
20. Each Respondent is engaged in conducting a scheme or device for obtaining money through the mails by means of false representations.
The Respondents Baba Distributing and Sports Research, Corp., are engaged in conducting schemes or devices in violation of 39 U.S. Code § 3005. Accordingly, an order of the type provided by that provision of law should be issued against the said Respondents.
Proposed findings of fact and conclusions of law submitted by the parties in this case have been fully considered. Such proposed findings of fact and conclusions of law have been adopted to the extent herein indicated. Otherwise, such proposals are rejected because they are unsupported by and contrary to the law and the evidence in this case or because of their irrelevance or immateriality.
1/ To the same effect, see Dr. Drenick's testimony at CX-8, pp. 6 and 10.
2/ A study of sorts was conducted by Mr. Pedersen to determine the efficacy of the BBF program. The report of this study accompanied his Answer to the Complaint. The reports were never offered nor received in evidence at the hearing. Hence, they are not part of the record in this case, and they are not considered herein. In the event some later reviewer determines that consideration should be given to this study, Dr. Drenick's statements in regard to the study's weaknesses are found, principally, on pp. 17 and 18 of the transcript.
3/ The reflection of the heat back into the body apparently was a new inspiration, or revelation, since it does not appear in the advertising matter.