In the Matter of the Complaint Against NATIONAL HEALTH PRODUCTS, INC. ORDER PROCESSING CENTER Lock Box 3247 at Granada Hills, CA 91344-0247 and 9514-9 Reseda Boulevard, Suite 609 Northridge, CA 91324-2306 P.S. Docket No. 17/123; 11/26/84 Bernstein, Edwin S. APPEARANCE FOR COMPLAINANT: Kenneth N. Hollies, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCES FOR RESPONDENT: Peter O. Safir, Esq. Nancy Singer, Esq. Kleinfeld, Kaplan & Becker 1140 Nineteenth Street, N.W. Washington, DC 20036-6601
On June 20, 1984, Complainant filed a Petition for Orders Based on Breach of Consent Agreement alleging that Respondent breached the terms of a Consent Agreement executed on December 14, 1983, by Michael S. Levey on behalf of Respondent. Complainant contends that Respondent has breached the terms of the Consent Agreement in connection with marketing claims for its product, DCP/2000. DCP/2000 consists of:
1. DCP/2000 AM, a pill containing time release phenylpropanolamine (PPA);
2. DCP/2000 PM, a combination of amino acids, vitamins and bulking agents; and
3. a diet that accompanies the program.
The Consent Agreement applied to Respondent's product, DCP/20 and products that are substantially similar to or reformulations of DCP/20.
After an evidentiary hearing and consideration of the evidence of record and the arguments of the parties, acting as Judicial Officer on October 12, 1984, I issued Findings, Conclusions and a Decision which determined that:
1. DCP/2000 P.M. is a reformulation of DCP/20 and a substantially similar product to DCP/20.
2. DCP/2000 A.M. is not a reformulation of DCP/20 or a substantially similar product to DCP/20. DCP/2000 A.M. is entirely different than DCP/20.
3. Since DCP/2000 P.M. is not sold separately, it can not be considered a separate product but must be considered as a component of DCP/2000 as a whole. With the inclusion of DCP/2000 A.M., DCP/2000 is not substantially similar to or a reformulation of DCP/20.
On November 5, 1984, Complainant filed a Motion for Reconsideration of the October 12 Decision. The motion contends that DCP/2000 P.M. should be considered a severable product and Respondent's marketing claims for DCP/2000 P.M. should be considered a violation of the Consent Agreement.
Complainant argues 1) the P.M. tablet is a separate tablet which may be consumed separately and 2) the ordinary consumer would read Respondent's advertisements as making separate claims for the A.M. and P.M. portions. Complainant states at page 6 of its brief:
The ads also make specific efficacy claims (Set A) pertaining only to the P.M. portion of the product and other claims (Set B) pertaining only to the A.M. portion. In virtually every sense of the word, the ad makes clear that Respondent is actually selling two different products, for which independent claims are made and which are to be consumed at different times... Only if the claims for the P.M. portions were not clearly separated from other claims, and if the A.M. and P.M. portions were formulated together in one tablet could consumers be precluded from basing a decision to purchase and/or to consume only on claims from the P.M. portion.
Upon reconsideration, I am unable to agree with Complainant's position. Respondent's advertisements repeatedly emphasize the program as a whole. The advertisement at Exhibit 1 to Complainant's June 20, 1984 Petition contains the heading "SEE New Double-Barreled DCP 2000." In column 1, there is a heading "Gives the One-Two Punch to Ugly Fat - Fast" followed by the phrase "unique double-barreled formula." Although the advertisement describes the A.M. and P.M. components separately, even there it describes the P.M. portion as something which "Completes the revolutionary DCP-2000 System." Following these descriptions, all references are either to DCP-2000 or to DiCellute 2000 AM/PM. Another advertisement which follows Exhibit D to the Petition is similar in emphasis. Its heading states "New Fool-proof Weight Loss System Features DiCellulite 2000 AM/PM..." Although it also describes the A.M. and P.M. components separately, all other references are to the product as a whole. The illustration of the two bottles is adjacent to the words, "Just 2 tablets a day." Elsewhere in the advertisement, the product is referred to either as "DCP/2000", "a weight loss system", "the DCP/2000 system", "the DCP 2000 Weight Loss System", or "DiCellulite AM/PM." The advertisement also states in column 1, "DCP/2000 will work for you too (even if other programs have failed for you)" and it continues, "the 24 hr. effective combination of ingredients will help you lose weight all day and all night" emphasis added . The advertisement also states that "DCP/2000 is only half the story" and then stresses the importance of the weight loss system in combination with the pills.
The first sentence that describes the P.M. portion of the product puts the reader on notice that it is a nutritional supplement. It states, "the seven ingredient P.M. tablet is a complex of amino acids and other elements that are often deficient during a rapid weight loss cycle." In contrast, the A.M. tablet is described as something that "gives your willpower a tremendous boost." Thus even if a reader carefully read the specific A.M. and P.M. descriptions, he would probably conclude that the A.M. is the ingredient which will be more important to his willpower.
The cases that Complainant cites do not support its position under the present facts, primarily because those cases do not arise under Consent Agreements. Where a Consent Agreement is involved, the law of contracts governs the interpretation issue. Mark Eden v. Lim P. Lee, 433 F.2d 1077 (1970). Moreover, in AMA-TOL, D.P. 2/226 (1968) and The New Body Boutique, P.S. 11/95 (P.S.D. 1982), the respondents sold a pill and a device, respectively, which were associated with calorie controlled diets for weight loss without adequately revealing that the diets played significant roles in the weight loss programs. In The New Body Boutique, the Judicial Officer stated at p. 8, "a perusal of Respondent's advertising makes it clear that Respondent is not promoting weight loss through diet." Thus, the cases are distinguishable from the present case in which Respondent's advertising states that it is selling both the A.M. and P.M. tablets as components of the DCP/2000 System.
As the October 12, 1984 Decision stated, the products can not be purchased separately and as has been shown herein, Respondent's advertising emphasizes that the combined program is what purchasers buy.
Complainant argues that the Decision will enable future respondents to frustrate Section 3005's purposes. Complainant's argument fails to consider the nature of Consent Agreements. As noted, a Consent Agreement is governed by the law of contracts. In the Consent Agreement at issue here, the representations to be discontinued were, without exception, narrowly addressed to Respondent's DCP/20 tablets. Respondent agreed to discontinue those representations as to that product, any reformulation thereof or a substantially similar product. Respondent presented persuasive expert testimony in support of its interpretation of those terms not precluding marketing of a product which included PPA. Respondent had, in fact, asked during negotiation whether such a product would be precluded under the agreement and was given an indefinite answer. Under these facts, Respondent's interpretation was found to be reasonable and, under the law of contracts, the prevailing interpretation. See RESTATEMENT (SECOND) of CONTRACTS Sections 202(3)(6), 206 (1981). Complainant has presented no new arguments or evidence that would lead to a different conclusion.
Therefore, after reconsideration, the October 12, 1984 Decision is affirmed and the Order dated June 21, 1983, as modified by Orders dated June 27, July 2, August 1 and August 16, 1984, directing the detention of Respondent's mail is revoked. Accordingly, normal delivery of mail, addressed to National Health Products, Inc., is to be resumed.