In the Matter of the Complaint Against

 DANLON HEALTH SYSTEMS
 15012 Redhill, Suite A
 at Tustin, CA 92680-6588

 P.S. Docket No. 17/108;  
 
 06/12/84
 
 Bernstein, Edwin S.  

 APPEARANCES FOR COMPLAINANT:
 H. Ric hard Hefner, Esq.

 Consumer Protection Division
 Law Department
 U.S. Postal Service
 Washington, DC 20260-1112
 Cory F. Dudley, Esq.
 Regional Inspector/Attorney
 601 W. 5th Street
 P. O. Box 30456
 Los Angeles, CA 90030-0456

 APPEARANCES FOR RESPONDENTS:
 William A. Dougherty, Esq.
 18352 Serrano Avenue
 Villa Park, CA 92667-2711
 Dennis P. Orphan, Esq.
 203 N. Golden Circle Drive
 2nd Floor
 Santa Ana, CA 92705-4010

BEFORE: Judge Edwin S. Bernstein

Complainant alleged and Respondent denied that Respondent is engaged in a scheme or device to obtain money through the mails by false representations in violation of 39 U.S.C. § 3005. The hearing was held in Santa Ana, California on March 16, 1984. Postal Inspectors Ralph Cook and Byron L. Dare and Dr. Ernst J. Drenick testified for Complainant. Respondent presented no testimony. Complainant filed proposed findings of fact, proposed conclusions of law, and legal memoranda. These have been considered. To the extent indicated, they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence.

I. The Use of the Mails

I find that Respondent solicits remittances of money through the mail in connection with its sale of the Lazy Lady's Way Weight Reduction System, System 1000, Maxa-B-Slim and Maxa-Vim Plus E products. Postal Inspector Dare testified that he mailed a coupon to Respondent containing Respondent's name and address (Tr. 44) with a check (Tr. 46-47) and subsequently received these products from Respondent by mail (Tr. 50-51). Many of Complainant's Exhibits (CX 1-4, 10-12, 16) also support this finding.

II. The Advertising Representations

I further find that Respondent's advertisements make the representations alleged in Paragraph 3 of the Complaint, as amended. (Tr. 5, 15) I also find that the advertisement of Respondent's products at CX-1 was published in the Los Angeles Herald Examiner. Although Respondent argued at the hearing that this may not have been published, its format and appearance in printed form as a newspaper article containing the name of that newspaper is persuasive evidence of publication which Respondent has failed to overcome with any evidence of its own. Another advertisement for Respondent's products appears at CX-10. The advertisements make the following representations based upon the following advertising language:

A. The Lazy Lady's Way Weight ReLction System or System 1000 functions effectively as a remedy for obesity without requiring the exertion of willpower.

Both CX-1 and CX-10 state in column 1:

It doesn't require "willpower." We've taken care of that for you with "MAXA-B-SLIM." It "SUPER-CHARGES" your will-power.

B. Users will experience a boost of energy and the elimination of hunger.

CX-1 and CX-10 also state in column 1:

It was determined the best approach to solve your problem was to go direct - to decrease your hunger - plus provide you with an energy booster.

Also, the headline of CX-1 states:

It Puts Hunger To Sleep.

The language in the boxes at the lower left corner of CX-1 and CX-10 "By a Husband" states that after trying the plan, "Today not only do I ... have more energy."

CX-10 states in column 1:

It Maxa-B-Slim enables you to "Declare War on your hunger - and win."

CX-1 also contains similar language in column 1.

C. The ingredients contained in Respondent's Maxa-B-Slim Weight Reduction Appetite Suppressant and Maxa-Vim Plus Extra E Prolonged Release are an integral and essential part of the "diet" and make a material contribution to a substantial loss of weight and maintenance of the reduced weight.

CX-1 states:

It was determined the best approach to solve your problem was to go direct - to decrease your hunger - plus provide you with an energy booster.

With that in mind, and safety above all, a very powerful new diet tablet has been developed which enables you to declare war on your hunger - and win. It's called "MAXA-B-SLIM." This diet aid is a major break-through because not only does it act quickly, it's unique in the fact that it contains no stimulants, caffeine, or aspirin. What's more, it's 100% SAFE to use.

. . . . .

It doesn't require "will-power." We've taken care of that for you with "MAXA-B-SLIM." It "SUPER-CHARGES" your will-power.

Similarly, CX-10 states:

It was determined the best approach to solve your problem was to go direct - to decrease your hunger - plus provide you with an energy booster. The bottom line was, it had to work on anyone - male or female - who is overweight.

A very powerful new diet tablet has been developed to do just that. In fact, it enables you to "Declare War on your Hunger - And Win]" It's called "Max-B-Slim." This diet aid is a major breakthrough because not only does it act quickly, it's unique in the fact that it contains no stimulants, caffeine, or aspirin. What's more, it's 100% safe to use. And it comes with a weight reduction program that makes a power-packed system second to none.

It's so darn easy.

III. The Falsity of the Representation

I further find that these representations are materially false.

The evidence on these issues consists of the testimony of Complainant's witness, Dr. Ernst J. Drenick, CX-18 and 19, and RX-1.

Dr. Drenick has been a Diplomate of the American Board of Internal Medicine since 1950. His curriculum vitae (CX-17) lists approximately 150 articles, mainly in the fields of nutrition and obesity. I found Dr. Drenick to be a highly qualified, knowledgeable expert in nutrition and weight control whose testimony was believable, logical, and persuasive.

Dr. Drenick's testimony and written statement (CX-18) disputed Respondent's representations. He concluded in CX-18 that, "Will power is a necessary prerequisite to successful weight reduction and it is false to claim that no will power is required."

The label of Maxa-B-Slim (CX-13) lists its active ingredients as 50 mg. of sodium carboxy methyl cellulose; 5 mg. benzocaine; and 50 mg. of wheat bran. An earlier version of the product differed solely in that it contained 1.1 mg. of benzocaine instead of 5 mg. (Tr. 5-6)

Dr. Drenick identified benzocaine as an anesthetic (Tr. 61). The Medical Letter in its August 10, 1979 issue (CX-19) stated that the rationale for including benzocaine in appetite suppressants is that presumably it dulls the taste of food and helps the dieter to eat less. Dr. Drenick identified The Medical Letter as an authoritive medical publication that has some of the best and most outstanding medical authorities on its editorial board. (Tr. 74) He agreed with the conclusion of The Medical Letter (CX-19) that there is no good evidence that oral benzocaine or any other drug can help obese people to achieve long-term weight reduction. (Tr. 75) He also stated that the profession, in general, agrees with that statement. (Tr. 75)

With regard to a Food and Drug Administration Panel's determination that 3 to 15 mg. of benzocaine is safe and effective for weight control (RX-1), Dr. Drenick explained that the FDA panel will declare a drug effective based solely on the statement of any doctor or pharmacist who represents that he has tested the drug and found it effective. (Tr. 100)

As further testified to by Dr. Drenick, sodium carboxy methyl cellulose is a nondigestible fiber product which when put into water will swell to a gel-like mass (Tr. 62) but the quantity of 50 mg. found in Respondent's product would have no effect on the appetite. (Tr. 65) Dr. Drenick further testified that his views and opinions conform with the consensus of informed medical and scientific opinion in the field of obesity. (Tr. 77)

I agree with Dr. Drenick's persuasive and uncontroverted testimony and I find as further specifically testified to by Dr. Drenick (Tr. 70-71) that Respondent's pills are ineffective in contributing to weight loss and the following allegations are false:

A. The "Lazy Lady's Way" Weight Reduction System or System 1000 functions effectively as a remedy for obesity without requiring the exertion of willpower.

B. Users will experience a boost of energy and the elimination of hunger.

C. The ingredients contained in Respondent's Maxa-BSlim Weight Reduction Appetite Suppressant and Maxa-Vim Plus Extra E Prolonged Release are an integral and essential part of the "diet" and make a material contribution to a substantial loss of weight and maintenance of the reduced weight.

1. The meaning of an advertising representation is to be judged from a consideration of the 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).

2. The average person reading Respondent's advertisements would interpret them substantially as characterized in Paragraph 3 of the Complaint as amended.

3. The representations specified in Paragraph 3 of the Complaint are materially false.

4. The effect of false representations is not dispelled by a money-back guarantee. Borg-Johnson Electronics v. Christenberry, supra; Farley v. Heininger, 105 F.2d 85 (D.C. Cir. 1939).

Therefore, I conclude that Respondent is engaged in conducting a scheme for obtaining money through the mails by false representations in violation of 39 U.S.C. § 3005 and that a False Representation Order, substantially in the form attached, should be issued against Respondent.