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-B Basin St. San Pedro, CA 90731-1301 P.S. Docket No. 16/144; P.S. Docket No. 16/145; 06/28/84 Cohen, James A. APPEARANCES FOR COMPLAINANT: Kenneth N. Hollies, Esq. John R. Mallory, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: Kenneth J. Poole, Esq. #3 Del Amo Fashion Center Torrance, CA 90503
The Respondents in these proceedings have appealed from an Initial Decision of an Administrative Law Judge which holds that Respondents are engaged in conducting a scheme or device to obtain money through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.
On May 19, 1983, the Consumer Protection Division, Law Department, United States Postal Service (Complainant), filed Complaints alleging that Respondents, by means of materially false direct mail advertisements, expressly or impliedly represent to the public, directly or indirectly, in substance and effect, whether by affirmative statements, omissions or implications, that:
"3. . . .
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 filed Answers, Respondents admitted that they make the representation alleged in paragraph 3a of the Complaints, denied that they make the representations alleged in paragraphs 3b and c of the Complaints, and further denied that any of these representations are materially false. At a hearing before an Administrative Law Judge, Ernst Drenick, M.D., Murray Zimmerman,
M.D., and Postal Inspector Ralph Cook testified for Complainant; Jeff Pedersen and Dennis Smith, Ph.D., testified for Respondents. Both Respondents and Complainant introduced documentary evidence to support their positions. Following the filing of proposed findings of fact and conclusions of law, the Administrative Law Judge issued an Initial Decision in which he concluded that Respondents make the representations alleged in the Complaints and that these representations are materially false. Accordingly, he recommended issuance of a False Representation Order under 39 U.S.C. § 3005.
Respondents' Exceptions to the
Respondents have filed nine enumerated exceptions to the Initial Decision which have been combined where appropriate and are discussed below.
Exceptions 1, 2, 3, 8, and 9 relate to whether Respondents' advertisements make the representation that BBF Maxercise Creme ("BBF") will achieve the results represented without exercising. Respondents contend that the claims made for the efficacy of their product are made in combination with the requirement for vigorous exercise.
The allegations in paragraphs 3a and b of the Complaints acknowledge that Respondents represent in their advertisements that BBF will only work "in combination with exercise." While paragraph 3c of the Complaints does not explicitly refer to the requirement for exercise in combination with the use of Respondents' product, Complainant has conceded that "Respondent's literature clearly specifies that regular and vigorous exercise is required of users" and that the term "user" in paragraph 3c of the Complaints contemplates a person who exercises (Complainant's proposed findings of fact and conclusions of law at p. 7).
The thrust of the allegations of paragraph 3 of the Complaints is that Respondents falsely represent that their product will achieve the results represented in combination with vigorous exercise. These allegations were reasonably within the scope of the proceeding and addressed by the parties in the presentation of the evidence at the hearing. Thus, it is considered that the pleadings have been amended to include in the allegations of the Complaints the requirement for vigorous exercise in combination with the use of Respondents' product. The record fully supports a finding that the representations alleged in the Complaints, as amended, are made in Respondents' advertisements.
In Exception 8 Respondents contend that Finding of Fact 5 is erroneous to the extent it was found that Respondents represent that exercise by itself is not effective for many people for weight reduction because the body's functions are "inadequate." However, the following advertising language gives the reader that impression:
"We have found that there are literally millions of men and women who exercise vigorously but just can't seem to lose inches and weight in particular problem fat deposit areas.
. . .
Won't vigorous exercise above remove these fat deposit areas?
As a person ages . . . the body's ability to burn fat gradually begins to slow down." (CX-3, p. 2)
Accordingly, this portion of Finding of Fact 5 is fully supported by the record and is sustained.
Respondents contend that little weight should be placed upon the testimony of Dr. Drenick, who testified as an expert witness for Complainant, because he allegedly failed to conduct adequate tests upon BBF and "pre-judged" the product prior to conducting his tests. Respondents' contention is rejected. Neither Complainant nor its witness is required to conduct tests of the product to prove its case. See, e.g., GHP Laboratories, Inc., P.S. Docket No. 10/149 (P.S.D. Nov. 30, 1981, at pp. 8-10). The opinion of a medical expert is sufficient evidence of falsity of advertising claims. Original Cosmetics Products, Inc. v. Strachan, 459 F.Supp. 496 (S.D.N.Y. 1978), aff'd mem. No. 78-6165 (2nd Cir. April 30, 1979). Thus, the fact that Dr. Drenick conducted only limited testing with BBF after forming his opinion does not diminish the importance of his testimony.
Complainant's expert witnesses, Dr. Drenick and Dr. Zimmerman, were well qualified to testify about the efficacy of BBF. Complainant established through the testimony of these witnesses that the informed medical and scientific consensus is that BBF will not work as advertised and that the representations in paragraph 3 of the Complaints are false (Tr. 27, 58-59). Accordingly, Exceptions 6 and 7 have no merit.
By establishing that this consensus exists, Complainant made a prima facie case as to the falsity of the representations alleged in the Complaints. The burden of going forward with evidence thus shifted to Respondents, who were required to show either that the consensus does not exist or that the claim of effectiveness is true despite the lack of acceptance by the medical community. Cosvetic Labs., et al., P.S. Docket Nos. 8/160 and cases consolidated therewith (P.S.D. July 22, 1982, at p. 14); Cf., Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Respondents' rebuttal evidence is discussed below under Exceptions 4 and 5.
At the hearing, Respondents presented a demonstration in which four individuals jumped rope after applying BBF on one side of their bodies. One participant applied Wesson Oil to the other side; the remaining three participants did not put any substance on the non-BBF side. Respondents were attempting to show that BBF caused more perspiration and higher skin temperature in the areas where BBF was applied.
Respondents correctly contend that the Administrative Law Judge erred in Finding of Fact 15(B) by stating that all four participants had applied Wesson Oil to the non-BBF side of their bodies, when only one had done so. The Administrative Law Judge observed more perspiration and higher skin temperatures on the BBF side of each participant. However, he concluded that these results were inconclusive and uninformative for the purpose of resolving the issues of this case, and listed four reasons why he reached this conclusion. The error of the Administrative Law Judge tends to diminish the validity of his reasons to some extent. However, Respondents' evidence has been independently analyzed for the purposes of this appeal, and it is concluded that the error was harmless. Accordingly, these exceptions are denied.
Assuming that Respondents' demonstration revealed more visible perspiration and higher skin temperature on body areas where BBF was applied, this evidence is not persuasive to prove that the scientific and medical consensus is in error. Complainant's experts established that BBF merely retards the evaporation of perspiration, with the result that perspiration builds up under a thin layer of BBF. Thus BBF gives the false impression that one is perspiring more, when, in fact, a normal amount of perspiration is simply accumulating and failing to evaporate (Tr. 49, 53; CX-9). Also, the amount of fluid in the body has no influence on the metabolism of fat (CX-9). Further, raising the skin temperature has no effect on fat metabolism (Tr. 54). Finally, the demonstration was performed at the hearing by Mr. Jeff Pedersen, one of Respondents' owners, who has no formal scientific background. Respondents' demonstration, and Mr. Pedersen's unpersuasive testimony concerning the efficacy and physiological effects of BBF, fail to rebut the prima facie case established by Complainant.
The remainder of Respondents' evidence also fails to persuade that the medical consensus is in error. Respondents' expert admitted that Respondents' claims for its product had never been proved (Tr. 134-135, 139-140). Also, although Respondents' expert has a Ph.D. in medical microbiology, he has had no formal training in physiology. He is not as well qualified as either of Complainant's experts, both of whom are medical doctors with expertise relating to the issues herein. Finally, Mr. Pedersen's study at San Pedro Athletic Club, which was attached to the Answer, is not scientifically valid because it lacked proper controls and was not conducted in accordance with accepted methodology (Tr. 17).
Accordingly, Complainant has proven by a preponderance of the evidence that the representations set forth in Paragraph 3 of the Complaints are false.
After consideration of the entire record and Respondents' exceptions, it is concluded that Respondents are engaged in a scheme or device to obtain money through the mail by means of materially false representations. Accordingly, Respondents' appeal is denied and a remedial order under 39 U.S.C. § 3005 is issued herewith.