In the Matter of the Complaint Against

 NEW BODY IMAGES
 P. O. Box 2482
 at Woburn, MA 01801

 P.S. Docket No. 17/20;  

 12/08/83

 Grant, Quentin E.  

 APPEARANCES FOR COMPLAINANT:
 H. Ric hard Hefner, Esq.
 Consumer Protection Division
 Law Department
 United States Postal Service
 Washington, DC 20260-1100
 George E. Hazel, Esq.
 Inspector/Attorney
 25 Dorchester Avenue
 Post Office Box 2217
 Boston, MA 02205-2217

 APPEARANCE FOR RESPONDENT:
 Joseph Goldman, Esq.
 8920 Wilshire Blvd. Suite 610
 Beverly Hills, CA 90211-2098

This proceeding was commenced on July 7, 1983, with the filing of a Complaint alleging that Respondent is violating 39 U.S.C. § 3005 by engaging in a scheme for obtaining money or property through the mails for its product, Body Sculpture Kit, by means of the following express or implied representations made in Respondent's advertisements and asserted by Complainant to be materially false in fact:

"a. The Body Sculpture Kit (European Bodywrap) is an effective means to reduce and eliminate accumulated body fat.

"b. Dismissed at hearing on Complainant's motion .

"c. Use of the Body Sculpture Kit (European Bodywrap) effectively firms up loose sagging skin.

"d. Use of the Body Sculpture Kit (European Bodywrap) produces a lasting loss of inches from hips and thighs.

"e. Use of the Body Sculpture Kit (European Bodywrap) reshapes the bumps and bulges and smooths out the lumps and bumps of the body."

Respondent's Answer denied the allegation of scheme, acknowledged its use of the advertisement attached to the Complaint and denied making representation that its product is an effective means to reduce and eliminate accumulated body fat. The Answer avers that use of the complete product (body wrap, gel, and firming lotion) will produce the various other results set forth in the alleged representations (except a lasting loss of inches from hips and thighs) and, therefore denies the falsity of the representations.

A hearing was held on October 5, 1983, at Respondent's request in Los Angeles, California. Complainant's witness was Ernst J. Drenick, M.D. Respondent's witness was Sharon Christie, owner and promoter of Respondent.

The parties have filed proposed findings of fact and conclusions of law all of which have been considered in arriving at this decision. To the extent indicated they have been adopted. Otherwise they have been rejected as irrelevant, immaterial or contrary to the evidence.

1. Respondent, using the address set forth in the caption hereof, by means of advertisements appearing in National Enquirer, solicits orders for its product Body Sculpture Kit and remittances of payment therefore through the mails.

2. A copy of Respondent's advertisement is attached hereto as Exhibit A.

3. With respect to the representations alleged in the Complaint as set forth above I find as follows, applying the standards for interpretation of advertising set forth in the conclusions of law, below:

a. Respondent's advertisement contains an implied representation that the Body Sculpture Kit is an effective means to reduce and eliminate accumulated body fat. Certainly the ordinary mind interprets the words "unwanted inches," "bumps," "lumps" and "bulges" to mean fat deposits. Sharon Christie's testimony clearly shows that she designed the product to deal with fat (Tr. 71, 82-84). To the ordinary mind the words "lose inches," "lose from 4-8 inches," and "lose unwanted inches from hips and thighs" would convey a promise or assurance of reduction and elimination of fat.

b. The representation that the product will effectively firm up loose sagging skin is expressly made in the advertisement.

c. The representation that the use of the product produces a lasting loss of inches from hips and thighs is found in the promises of loss of unwanted inches from hips and thighs and a slimmer, trimmer figure. There is no suggestion in the ad that the results of use of the product will be only temporary.

d. The advertisement expressly represents that use of the product will reshape bumps and bulges and smooth out lumps and bumps.

4. Persons ordering the product receive what Respondent calls the Body Sculpture System consisting of cloth wraps of two sizes, a bottle of Body Sculpture Gel, a container of Body Firming Lotion and a pamphlet entitled "Method Guide." The pamphlet provides instructions for the use of the three elements of the system. They are summarized as follows:

a. Measure the areas to be reshaped and wrapped.

b. Apply Sculpture Gel to those areas.

c. Apply the wraps to knees, upper thighs, buttocks and hips.

d. Lie down and relax for 60 minutes.

e. Remove wraps and remeasure the areas previously measured.

f. Apply Body Firming Lotion over the entire body.

The guide recommends that the user follow up the first treatment with the same treatment for 6 successive days, then two treatments a week for 3 weeks and thereafter once a week or as needed.

(CX-2 through CX-5)

5. According to the labels thereon the Body Sculpture Gel and Body Firming Lotion contain the following ingredients:

BODY SCULPTURE GEL

100% NATURAL

HERBS - MINERALS

VITAMINS

INGREDIENTS: MINERAL WATER, ALOE VERA,

HORSETAIL EXT, BLADDERWRACK EXT, IVY EXT,

EPSOM SALTS, SOLAR SEA SALTS, CARRAGEENAN,

CHLOROPHYLL, COLLAGEN, ROSE HIP EXT,

(VIT C) FENNEL, SAGE, NEROLI, CHAMOMILE.

__________

BODY FIRMING LOTION

WITH

COLLAGEN AND

EUROPEAN PLANT

EXTRACTS

INGREDIENTS: DEIONIZED WATER, PROPYLENE GLYCOL

MAGNESIUM SULPHATE, PROPYLENE GLYCOL ALGINATE, PEG-12

DIOLEATE, HORSETAIL EXT, BLADDERWRACK EXT, COLLAGEN,

PEG-20, PANTHENOL, LANETH 16, ALOE VERA CONCENTRATE,

UREA, FRAGRANCE, PVP, QUATERNIUM 15, SDA 40.

6. Complainant's expert witness, Ernst J. Drenick, is a medical doctor, board-certified in the specialty of internal medicine, is a professor in the department of medicine at the medical school of the University of California at Los Angeles, and has a special interest in nutrition and metabolic disorders having treated numerous people with nutritional and obesity problems. He has published several papers and has written chapters for several books on the subjects of obesity and weight reduction (CX-6). Dr. Drenick was well qualified to testify in this proceeding.

7. Respondent's owner and promoter, Sharon Christie, is a registered pharmacist, licensed in the states of Massachusetts and California. She has been engaged in several capacities in the cosmetics industry since 1969. Since 1980 Ms. Christie has been self-employed in offering "unique" products for health, nutrition, and beauty. Since 1980 she has been primarily engaged in the marketing and licensing of Quickslim TM products and salons. Among the Quickslim TM products is a slimming product called Quickslim TM for "trimming, firming, toning, and tightening" the body (RX-A; Tr. 37-40). The Body Sculpture Kit involved in this proceeding is identical to the Quickslim TM slimming product (Tr. 49). The latter is used only in salons or body care centers licensed by Ms. Christie's Company, Sharon Christie, Ltd. The marketing of the Body Sculpture Kit was in response to a perceived market for a similar treatment for use in the home (Tr. 40).

8. Dr. Drenick and Ms. Christie agreed as to the lack of efficacy of the product to reduce and eliminate accumulated body fat (Tr. 17, 82-84).

9. Based on Dr. Drenick's testimony I find that the causes of loose and sagging skin are loss of elastic fiber in the skin due to advanced age, or excessive stretching of the skin as a result of pregnancy, or obesity followed by loss of a large amount of fat; that there is no way to restore lost elasticity to the skin; that the only method of making skin tight again is surgical or in the case of looseness due to weight loss, the regaining of weight (Tr. 19-21).

10. Sharon Christie developed the formulas for both the lotion and the gel employing common ingredients widely used in the cosmetic field (Tr. 41). She stated that the ingredients are similar in both, but the lotion is designed to achieve a more cosmetic, elegant effect. Emphasizing the essentially astringent nature of the gel, she identified aloe vera and horsetail extract as the astringent ingredients. The other ingredients, according to Ms. Christie, provide stimulating (ivy extract), hydroscopic (Epsom salts), electrolyte balancing (bladderwrack extract, solar sea salts), constancy, refining, texturizing, coloring, and aromatic effects. She identified collagen as a skin firming, toning, and tightening ingredient (Tr. 67-70). Ms. Christie stated that although the Body Firming Lotion has an astringent quality, its principal effects on the skin are firming, moisturization, nourishment, and improvement of elasticity (Tr. 70).

11. Dr. Drenick's testimony agreed with that of Ms. Christie in identifying aloe vera and horsetail extract as astringents. He stated that they might bring some fluid to the superficial layers of the skin temporarily and might create the impression of tightening without any actual tightening (Tr. 26-29). He stated that the solar salts and Epsom slats would allow some moisture to penetrate into superficial layers of the skin and, therefore, favor moisturizing of the skin, making it more pliable, but would not tighten or firm up the skin (Tr. 29, 30).

12. Based on the views expressed by Dr. Drenick, I find that the Body Sculpture Kit is not an effective means to reduce and eliminate accumulated body fat and that its use will not effectively firm up loose sagging skin or produce a lasting loss of inches from hips and thighs (Tr. 17, 21, 23, 24).

13. Ms. Christie at one point described the function of the body wrap component of the kit as providing the pressure to reshape the fat cells mechanically and, by continued usage, molding those cells so that aesthetically unappealing bumps, lumps and bulges are smoothed out (Tr. 71, 72, 81). At another point in her testimony Ms. Christie attributed the inch loss experienced by users of the kit to a combination of water loss and "improved circulation" which "aids the body's own cleansing function to start eliminating a lot of this." She stated that her program appeals to many women who don't want to be bothered with dieting but "want to be slimmer, they want to get from a size 16 to a size 10 overnight." She admitted that this desire or goal is unrealistic, but stated, "they will search out any product that can offer them instant, miraculous results. We offer a product that happens to afford them these results." (Tr. 90, 91).

14. In support of Respondent's claim of inch loss, Ms. Christie presented data purporting to report inch losses experienced by four female participants in an evaluation of the Quickslim method conducted by Ms. Christie, personally, based on a protocol prepared by C.P.T.C. Inc. (RX-D). According to the protocol there were to be five participants who were to receive twice weekly (a total of twenty) treatments consisting (after preliminary measurement of thighs) of applying gel to the thighs and then wrapping the thighs with toning tapes for a total of 90 minutes each treatment. Thigh measurements were to be made and recorded immediately following each treatment.

15. Ms. Christie did not adhere to the protocol in making the evaluation. She used only four participants instead of five. The data sheets for these four women show that measurements were not limited to the thighs. They were made in nine other areas as well. Also two of the women dieted during the period of the study. Two did not diet. Although Ms. Christie stated that use of the New Images Body Sculpture Kit would not remove fat, three of the four subjects in the Quickslim study lost from 2 to 6 1/2 lbs. over the several weeks covered by the test. Ms. Christie, using a tape measure, personally made the body area measurements of the four subjects throughout the test. She stated that she eliminated error in these measurements by taking each measurement three times and entering the average of the three on the data sheets. Before and after photographs of one subject presented by Ms. Christie to prove the inch-loss efficacy of the product show Ms. Christie applying the tape measure in the upper thigh area. However, it is obvious from the photographs (RX-H) that the tape is being applied tighter in the "after" measurement than in the "before" measurement.

16. According to Dr. Drenick, lumps, bums, and bulges are caused by deposits of fatty tissue. Based on Dr. Drenick's testimony I find that the body wrapping, if applied firmly, temporarily displaces the fluid between the cells (interstitial fluid) and shifts it into portions of the body not compressed by the wrappings. Following removal of the wraps, the displaced fluid will return to the area from which it was displaced within 2 to 15 or 20 minutes. The body wraps will not reduce the fat cells in number or size (Tr. 17-19). Use of the Body Sculpture Kit will not reshape bumps and bulges or smooth out lumps and bumps of the body (Tr. 19).

17. The views and opinions expressed by Dr. Drenick in this proceeding are in accord with the informed medical and scientific consensus (Tr. 24).

1. 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).

The ultimate impression on the reader results not only from what is stated but also from what is reasonably implied therefrom. Vibra-Brush Corp. v. Schaffer, supra; Aronberg v. Federal Trade Commission, 132 F.2d 165 (7th Cir. 1942).

As noted in findings of fact No. 3, supra, the foregoing principles were applied in finding that Respondent's advertising makes the representations alleged in subparagraphs a, c, d and e of paragraph III of the Complaint.

2. Based on findings of fact numbered 8, 9, 11, 12, 16 and 17, supra, I conclude that such representations are materially false in fact.

3. My conclusions as to falsity are based on the testimony of Dr. Drenick, a well-qualified and disinterested witness whose views are consistent with the informed scientific and medical consensus. The testimony of Ms. Christie did not reflect a contrary scientific or medical consensus. The report of the test conducted by Ms. Christie employing the Quick Slim Method did not rise to the status of a valid scientific test or study in that (a) the protocol was not followed (there were only 4 subjects, instead of 5 called for by the protocol); (b) two of the 4 dieted during the test period; (c) the measurements were probably not reliable because of differing tension or pressure exerted by Ms. Christie in making them; (d) any actual decrease in circumference of measured areas was probably due to very temporary displacement of interstitial fluid or loss of weight due to dieting and not due to any influence of the product itself on the fat cells per se. In weighing Ms. Christie's testimony I have also taken into account her presumably strong bias in favor of the results she claimed because of financial interest as Respondent's owner and promoter.

4. Displacement of the interstitial fluid in fatty areas resulting in decreased circumference for 2 to 20 minutes does not constitute reshaping of bumps and bulges or smoothing out lumps and bumps as represented in Respondent's advertisements.

5. If in fact, as Ms. Christie testified, Respondent has received few, if any, complaints about the product, this is most likely because users feel better after the treatment and many may be motivated to diet or exercise producing desired results not directly attributable to use of the product per se (see Tr. 36, 46).

6. Complainant has proved its case by a preponderance of the reliable and probative evidence of record.

7. Respondent is engaged in the conduct of a scheme for obtaining money through the mails by means of materially false representations in violation of 39 U.S.C. § 3005.

8. A mail stop order in the form attached should be issued against Respondent.