In the Matter of the Complaint Against ERIC LUCKY LINDER 1950 Jamestown Way Oxnard, CA 93030-7721 and CITRUS INDUSTRIES 9903 Santa Monica Boulevard Beverly Hills, CA 90212-1606 and 12209 Wilshire Boulevard Los Angeles, CA 90025-1105 P.S. Docket No. 19/75; 11/02/84 Grant, Quentin E. APPEARANCE FOR COMPLAINANT: Nan M. Kalthoff, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: Charles F. Abbott, Esq. Abbott & Jensen 2230 North University Parkway Building 7, Suite G Provo, UT 84604-1509
The Complainant alleges that Respondents are violating 39 U.S.C. § 3005 by means of the following materially false representations concerning the product, Super Grapefruit Pills (Complaint, #6):
(a) the Super Grapefruit Pills will cause the user to lose weight at a rate of one pound per day, at least ten pounds in ten days, 14 pounds in 14 days, and 30 pounds in 30 days.
(b) the Super Grapefruit Pills will cause the user to lose a substantial amount of weight in a short period of time.
(c) use of the Super Grapefruit Pills will cause a loss of weight without restriction of the user's calorie intake.
(d) the Super Grapefruit Pills will cause the user to lose weight without exercise.
(e) the ordinary user of the Super Grapefruit Pills will not experience bloating and puffiness.
(f) the glucomannan in the Super Grapefruit Pills, when taken as directed, expands to the full capacity of the stomach.
(g) the glucomannan in the Super Grapefruit Pills, when taken as directed, gives the user a satisfied feeling all day long, thereby causing an overweight person to eat significantly less food.
(h) the grapefruit concentrate in the Super Grapefruit Pills makes a material contribution to the promised weight loss.
The Answer of Respondents to the Complaint denied making the alleged false representations but admitted the use of the advertisement and the reorder form attached to the Complaint as Exhibits 1 and 2.
An evidentiary hearing was held in Los Angeles, California on August 14, 1984. Complainant's witnesses at the hearing were Ernst J. Drenick, M.D., Judith Stern, D.Sc., and Postal Inspector Ralph Cook. Respondents called Stan Solomonson, D.C.
By stipulation, the Complaint was amended to delete subparagraph 6(e), supra (Tr. 4, 5).
The parties have filed proposed findings of fact and conclusions of law, together with written argument, 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 or contrary to the evidence.
1. By means of advertisements in publications of general circulation, Respondents solicit remittances of money through the mails for the product Super Grapefruit Pills to 9903 Santa Monica Boulevard, Beverly Hills, California 90212 and 12209 Wilshire Boulevard, Los Angeles, California 90025 (Answer, § 3, 4, 5; Admissions 4, 5; Ex. 1 and 2 to Complaint).
2. Respondent Eric Lucky Linder is the sole proprietor of Respondent Citrus Industries (Answer, § 2).
3. The label used by Respondents on bottles of Super Grapefruit Pills reads as follows:
New] Super
GRAPEFRUIT
PILLS
Contains All U.S.R.D.A. (Adult)
*100% Daily VITAMINS
Vitamin and Mineral Supplement
*and GLUCOMMANNAN
Japanese
Konjac-Root
List Price
45 $17.95
Pills
Distributed by
Citrus Industries
9903 Santa Monica Bl.
Beverly Hills, CA 90212
Percent of
Each three (3) tablets contain: USRDA*
Vitamin A (Acetate)------------------------ 5000 IU 100%
Vitamin D (Cholecalcifierol)--------------- 400 IU 100%
Vitamin E (di Alpha Tocopheryl Acetate)---- 30 IU 100%
Vitamin C (Ascorbic Acid 90%)-------------- 60 mg 100%
Folic Acid--------------------------------- 400 mcg 100%
Vitamin B-1 (Thiamin HC1)------------------ 1.5 mg 100%
Vitamin B-2 (Riboflavin)------------------- 1.7 mg 100%
Niacin------------------------------------- 50 mg 100%
Vitamin B-6 (pyridoxine HC1)--------------- 2 mg 100%
Vitamin B-12 (Cyanocobalamin)-------------- 6 mcg 100%
d-Biotin----------------------------------- 300 mcg 100%
Panotothenic Acid (d-Calcium Pantothenate)- 10 mg 100%
Iodine (kelp)------------------------------ 210 mcg 100%
Potassium (Chloride)----------------------- 100 mg **
In a base of 1500 mg Konjac Root (Glucomannan) 500 mg whole powdered Grapefruit, 100 mg Cider Vinegar, 100 mg Lechithin, 10 mg of Kola Nut and 5 mg of Damiana for which no dietary claims are made Plus excipients and binders.
*U.S. Recommended Daily Allowance for Adults 2 or more years of age **USRDA not established.
DIRECTIONS FOR USE: As a dietary supplement, take one tablet with each mail (3 tablets daily) with a glass of water half hour before each meal. CX-D; Admission 9
4. Super Grapefruit Pills contain the ingredients listed on the above label (Admission 10).
5. Below are restated representations made by Respondents as alleged in Paragraph 6 of the Complaint (with corresponding lettering). Following the restated allegations is language from Respondents' advertisements in which I find the alleged representations:
(a) the Super Grapefruit Pills will cause the user to lose weight at a rate of one pound per day, at least ten pounds in ten days, 14 pounds in 14 days, and 30 pounds in 30 days.
(b) the Super Grapefruit Pills will cause the user to lose a substantial amount of weight in a short period of time.
___________
Eat All You Want-Lose 10 Lbs. in 10 Days
* * *
An amazing new "super" grapefruit pill has recently been developed and perfected that reportedly "guarantees" that you can easily lose at least 10 pounds in 10 days. Best of all, it allows you to "eat as much as you want of your favorite foods and still lose a pound a day or more starting from the very first day until you achieve the ideal weight and figure you desire." underscoring supplied
...and the amazing combination of powerful ingredients are so effective that you start losing weight immediately.
The super-pill is already sweeping the country with glowing reports of easy and fast weight loss from formerly overweight people in all walks of life who are now slim, trim, and attractive again.
You can order your supply of these highly successful "super" grapefruit pills, by sending $12 for a 14-day supply, (or $20 for a 30-day supply, or $35 for a 60 day supply)....
(Cplt., Ex. 1)
New] Easy Convenient Way to Lose Weight Quickly
* * *
With this inexpensive investment, you can achieve your weight loss goals***
(Cplt., Ex. 2)
(c) use of the Super Grapefruit Pills will cause a loss of weight without restriction of the user's calorie intake.
__________
Eat All You Want***
No-Dieting - Pill Does All The Work
* * *
Best of all, it allows you to "eat as much as you want of your favorite foods and still lose a pound a day or more starting from the very first day until you achieve the ideal weight and figure you desire..."
* * *
Pill Does All the Work
* * *
According to the manufacturer, "the pill itself does all the work while you quickly lose weight with NO starvation "diet menus" to follow, NO calorie counting,....
(Cplt., Ex. 1)
(d) the Super Grapefruit Pills will cause the user to lose weight without exercise.
___________
According to the manufacturer, "the pill itself does all the work while you quickly lose weight with ... NO exercise....
(Cplt., Ex. 1)
(g) the glucomannan in the Super Grapefruit Pills, when taken as directed, gives the user a satisfied feeling all day long, thereby causing an overweight person to eat significantly less food.
___________
Each pill also contains an amazingly effective amount of "glucomannan" the remarkable natural dietary fiber discovery from Japan (used successfully for over 1500 years) that expands in your stomach and gives you a full and satisfied feeling all day long.
(Cplt., Ex. 1)
You can eat the foods you like, but the action of the super pill helps you to cut down both in your calorie intake and the amount of calories your body digests. Because you are still eating the foods you normally eat, you never feel deprived, hungry, or irritable.
* * *
The glucomannan (konjac-root) in the pill contains no calories. It will help curb and control your appetite by instantly absorbing liquid in your body and swelling to form a high fiber gel in your stomach. Thus you will need less food to feel full and satisfied.
(Cplt., Ex. 2)
(h) the grapefruit concentrate in the Super Grapefruit Pills makes a material contribution to the promised weight loss.
___________
New Grapefruit "Super Pill"
Guarantees Fast Weight Loss
* * *
The "super" grapefruit pill is a dramatically improved version of the world famous grapefruit diet. It is far more effective than the original and eliminates "the mess, fuss, and high cost of eating half a fresh grapefruit at every meal."
(Cplt., Ex. 1)
The powerful and unique combination of ingredients in the pill are highlighted by highly potent grapefruit concentrate....
(Cplt., Ex. 2)
6. a. Complainant's witness Ernst J. Drenick is a medical doctor, board certified in internal medicine. He is the Chief of the General Medicine Section and supervises the nutrition program at the Veterans Administration Hospital in Los Angeles. He is teaching member of the faculty at the University of California at Los Angeles (UCLA) Medical School. Since approximately 1962, Dr. Drenick has conducted research at the VA Hospital on obesity, treatment of obesity, and nutritional balances. He treats patients for obesity at clinics at the VA Hospital and UCLA. He belongs to a number of professional societies whose membership is based upon medical or scientific accomplishments. He has presented his research at meetings of these societies and published his research in peer-reviewed journals. He reviews articles on obesity for a number of peer-reviewed scientific and medical publications. He keeps current with developments in the field of obesity through attending meetings of various professional societies and international and national conferences and by regularly reading professional journals and publications (TR. 6-12, CX-1). Dr. Drenick was exceptionally well-qualified to testify in this matter.
b. Complainant's witness Judith Stern has a doctor of science degree in nutrition from Harvard University and has been a professor for seven years at University of California at Davis where she is also the Director of the Food Intake Laboratory Group. The Food Intake Laboratory Group is comprised of multidiscipline researchers who study food intake and its effect on weight. She is the primary obesity specialist on the congressionally mandated United States Dietary Guidelines Committee. She has published over 120 articles on nutrition and obesity in peerreviewed scientific or medical journals. She keeps current with recent developments in the field of nutrition and obesity through her membership and attendance of meetings of a number of professional societies, her attendance at international and national conferences, and weekly reading of scientific and medical literature (CX-2, Tr. 108-114). Dr. Stern was also exceptionally wellqualified to testify in this matter.
c. Respondents' witness Stan Solomonson is licensed to practice chiropractic in California. Dr. Solomonson's education in nutrition was primarily independent study, working with a gastroenterologist, and attending seminars given by a chiropractic group interested in nutrition (Tr. 172). He has not conducted any scientific studies on glucomannan (Tr. 177). Dr. Solomonson treats in excess of fifteen percent of his patients for obesity. He has used glucomannan along with diet and exercise in such treatment (Tr. 178, 191).
7. The findings in this paragraph are based on the testimony of Drs. Drenick and Stern which is in accord with the informed medical and scientific consensus (Tr. 54, 138-139).
a. grapefruit concentrate
Super Grapefruit Pills contain 500 milligrams of grapefruit concentrate. Grapefruit concentrate in this or any amount does not cause or materially contribute to weight loss (Tr. 19, 82, 84, 137 and 139).
b. glucomannan
Glucomannan is a soluble fiber in that it can absorb water. The theory behind its use in a weight loss regimen, as set forth in Respondents' advertisements, is that it absorbs water in the stomach, expanding to many times its weight and making a high fiber gel. It thereby causes the user to feel less hungry and to eat less. The advertisement also claims that glucomannan causes fewer calories to be digested by the body. Each tablet of Respondents' product contains 500 milligrams of glucomannan (CX-D) and the instruction on its product label is to take one tablet thirty minutes before each meal although the reorder form (Ex. 2 to Complaint) suggests taking two tablets if one is still overeating.
Glucomannan, in the amount contained in the Respondents' product, when taken as directed, has no effect on hunger and does not give a feeling of fullness. A feeling of fullness is caused by distension of the stomach (Tr. 66). Respondents' product forms a gel 25 times its weight or 25 cc per gram of glucomannan. The normal capacity of the stomach without distension is approximately 750 cc (Tr. 23, 24) so that in effect the gel formed by two tablets occupies only about 3% of the capacity of the stomach. The gel is an inert substance that will not be digested or predigested in the stomach and, therefore, is emptied almost instantaneously from the stomach into the small intestine (Tr. 21, 24). Because the glucomannan gel occupies such a small part of the stomach and since the stomach quickly empties the gel into the intesting, glucomannan has no effect on hunger (Tr. 26, 141).
Dr. Drenick tested the gastric emptying effect of Respondents' product. He dissolved two pills in water and added barium. He took an X-ray of the barium to establish that the barium bound with the glucomannan. He then swallowed two Super Grapefruit pills with a glass of water and additional barium. He took X-ray films of himself immediately after ingestion of the tablets and then thirty minutes later, the time after ingestion when the product's directions indicate that the user should begin a meal. Using the X-ray film to demonstrate his testimony, Dr. Drenick stated that the X-ray taken immediately after ingestion showed that the glucomannan had already begun to exit the stomach by the time the X-ray was taken --one-half minute after swallowing. Thirty minutes later the second X-ray revealed that only traces of the glucomannan remained in the stomach, the bulk thereof having emptied into the lower portion of the small intestine (Tr. 2529). The results of Dr. Drenick's experiment can be extrapolated to other persons since the stomach functions the same in most people. Dr. Drenick conducted an identical test on methylcellulose, a similar bulking agent fiber, with identidcal results.
This test was published in the peer-reviewed New England Journal of Medicine (Tr. 27-29).
Respondents' product will not cause a feeling of fullness and will not cause a person, whether overweight or not, to eat less food (Tr. 30, 31). In any event, overweight persons do not respond significantly to feelings of fullness (Tr. 30, 137).
Glucomannan has no effect on the amount of calories the body digests. Although fiber may slow the absorption of sugar in the intestinal tract by coating the glucose molecules, all sugar calories will eventually be absorbed (Tr. 21, 33). While studies have shown that this slowing of the sugar absorption rate is useful to a diabetic, it has no effect on weight loss (Tr. 33, 34, 36). In addition, glucomannan and other fibers have been shown to lower blood cholesterol levels, but this will not cause weight loss (Tr. 36-38, 119).
Fiber may bind with small quantities of fats which are bound to the gel and will be excreted. As a result 40 to 60 fewer calories of such fats a day will be digested. This has an insignificant effect on weight loss and is offset by the transformation of a portion of the glucomannan into fatty acids which are absorbed by the lower colon (Tr. 32).
Dr. Stern conducted a double-blind study on glucomannan for a glucomannan manufacturer, the Hi-Mannan Foods Corporation, to determine the effect of glucomannan on hunger and weight loss. Both the test group and the control group were told that the study was to determine the possible effects of two dietary supplements on hunger and weight loss (Tr. 115, 116). The test group was instructed to take one gram of glucomannan before eating, three or four grams a day depending on whether one had a snack. The control group was given a placebo (lactate) and both groups were placed on a behavior modification program designed for weight loss (Tr. 116-117). Analysis of the results of the five-week study showed no significant differences in weight loss and hunger, although both groups lost weight and experienced less hunger (CX-3; Tr. 116, 119, 121-123). Dr. Stern found no hint in the results of the study that glucomannan had any effect on hunger and weight loss (Tr. 124).
c. diuretic
None of the ingredients listed on the label of Super Grapefruit Pills alone or in combination is a diuretic (Tr. 20, 82, 153, 154). In any case, a diuretic would not cause a sustained weight loss in excess of one or two pounds which would be lost in the first two days of use. Continued use of a diuretic does not produce a continuing cumulative loss of weight (Tr. 104-105).
Damiana has no proven physiological activity as a diuretic or otherwise (Tr. 102-B, 103, 153, 156; RX-6).
d. General
Ingestion of Respondents' product as directed will not cause a reduction of hunger, consumption of less food, or loss of weight (Tr. 49-54, 135-138).
8. The representations found in paragraph 5 above are materially false in fact.
a. The Representation Alleged in 6(f)
Paragraph 6(f) of the Complaint alleges that Respondents represents that the glucomannan in the Super Grapefruit Pills, when taken as directed, expands to the full capacity of the stomach. I do not find such a representation in either the advertisement or the reorder form. With respect to fullness and satiety, while they do stress that glucomannan will expand in the stomach and thereby cause a feeling of fullness and satisfaction they do not promise that users will feel so full and satisfied that they will experience no hunger.
b. The Expert Witnesses and Their Testimony
Drs. Drenick and Stern were outstandingly qualified to testify in this matter. Respondents' Dr. Solomonson acknowledged that Dr. Drenick is a recognized authority in the field of obesity. With all due respect to Dr. Solomonson, his credentials to testify on the falsity issue were sufficiently less than those of Drs. Drenick and Stern that I have accorded his opinions little weight insofar as they contradicted the opinions of those experts. I also note that Dr. Solomonson in expressing opinions favorable to Respondents' case did not purport to state a consensus of any segment of the scientific or medical communities. He merely referred to articles or studies not relevant or not shown to have scientific validity, including one in the Consumer Guide. Although he stated that he uses glucomannan in treatment of obesity (along with diet and exercise) he did not attribute to that substance any direct contribution to successful results achieved. He testified that it would take an enormous amount of glucomannan to distend the stomach so as to affect appetite (Tr. 183) and that it was merely "conceivable, based upon anticipation placebo effect , if they also ideally responded to the ingredients of the Super Grapefruit pill and were sensitive to the glucomannan" that users might lose a pound of weight a day (Tr. 187). Dr. Solomonson attached importance to the placebo effect in stating that opinion (Tr. 186, 192-193). Dr. Solomonson stressed the point that psychological factors would play a significant part in any apparent successful operation of the pill (Tr. 192, 193).
c. Respondents' brief argues that I erred in refusing to allow Dr. Drenick to answer its counsel's question whether there are any pills that will cause a reduction in calorie consumption. The ground of the asserted error is that the answer should have been allowed because the logic of Dr. Drenick's testimony was that because no pill could cause a reduction of calorie intake, then the Super Grapefruit pill could not cause such a reduction. Clearly that was not the logic of Dr. Drenick's opinion that Respondents' product would not cause a reduction in calorie intake (See, par. 7 above). Therefore, the question was irrelevant.
d. Although I received in evidence, as Respondents' Exhibits 1 and 4, two U. S. Patent applications making weight loss and other claims for human ingestion of konjac mannan, I attach no weight to such claims, based on Dr. Drenick's testimony that the medical profession would not consider patent applications authoritative proof of efficacy (Tr. 49).
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. Shaffer, 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 from an advertisement. Vibra-Brush Corp. v. Shaffer, supra; Aronberg v. Federal Trade Commission, 132 F.2d 165 (7th Cir. 1942).
The foregoing principles were applied in finding that Respondents' advertising makes the representations alleged in subparagraphs a through d, g and h of paragraph 6 of the Complaint.
2. The ordinary person who reads Respondents' solicitation materials would interpret them substantially as characterized in those portions of the Complaint.
3. Based upon findings of fact numbered 7, supra, such representations are false in fact.
4. The fact that a product may have placebo effect does not support the efficacy of the product or vitiate the falseness of the representations. Original Cosmetics Products, Inc. v. Strachan, 459 F. Supp. 496, 506 (S.D.N.Y. 1978), aff'd, 603 F.2d 214
(2d Cir. 1979), cert. denied, 444 U. S. 915 (1975); Standard Research Labs, P.S. Docket Nos. 9/63, 64, P.S.D. at 13, 14 (1981). See also, Stauffer Laboratories v. F.T.C., 343 F.2d 75, 83 (9th Cir. 1965).
5. Complainant has proved its case by a preponderance of the reliable and probative evidence of record.
6. Eric Lucky Linder as the sole proprietor of Citrus Industries is a person conducting a scheme within the meaning of 39 U.S.C. § 3005 (a)(3). He is directly responsible for the advertising of Citrus Industries. The cease and desist order should run against him individually, as well as Citrus Industries.
7. Respondents are engaged in the conduct of a scheme for obtaining money or property through the mails by means of materially false representations in violation of 39 U.S.C. § 3005. Accordingly, a mail stop order and a cease and desist order in the forms attached should be issued against the Respondents.