P.S. Docket No. 2/122
February 12, 1974
In the Matter of the Complaint Against
SHARON WOODMAN ASSOCIATES
13619 Moorpark at
Sherman Oaks, California 91403
P.S. Docket No. 2/122;
APPEARANCES:
Daniel S. Greenberg, Esq.
Law Department
United States Postal Service
Washington, D.C. 20260
for Complainant
Robert Sarno, Esq.
Fleishman, McDaniel, Brown & Weston
6922 Hollywood Boulevard
Hollywood, California 90028
for Respondent
POSTAL SERVICE DECISION
The above-captioned matter is before the Judicial Officer on Respondent's appeal from an Initial Decision adverse to it in a proceeding brought under 39 U.S.C. 3005 and Part 952 of the Rules of Practice. 1/ Respondent was found to be engaged in a scheme or device for obtaining remittances of money through the mails by means of false representations with respect to its tonic to be used for weight reduction purposes.
The record shows that Respondent places advertisements in publications under the heading "WANT TO LOSE WEIGHT?". Those advertisements extol the virtues of its "MY SECRET" as a weight reducing agent. The order blank 2/ states:
"Yes, I want to lose weight and keep it off. Send to me your book containing the directions for making and using 'MY SECRET' -- the safest, fastest, most effective fat destroyer in the world. I must start losing weight within the first 24 hours and continue to lose it and keep it off as long as I use this tonic -- or my money back]"
A person who uses the order blank and forwards his remittance receives a booklet directing him to make a tonic of apple juice, grape juice and mashed banana. The earlier version of the booklet advised that the tonic should be the user's sole diet. A later version directed taking the tonic before meals.
Respondent makes five arguments for overturning the Initial Decision. The first four dealing essentially with constitutional matters are as follows:
"I. The booklet, 'My Secret' is expression entitled to the protection of the free speech and press provisions of the first amendment to the United States Constitution. As such, the Postal Service has no power to censor the booklet on the basis of the ideas and information contained therein, and it has no greater power to censor indirectly the content of the booklet by challenging the truthfulness of claims made in the advertisement which are substantially the same as those made in the booklet itself.
"II. In determining whether any substantial or material variance exists between the claims made in the advertisement and those made in the booklet itself, the applicable legal standard by which any alleged variance must be judged is the effect of the advertisement upon the average person in the relevant audience. First amendment principles will not tolerate a standard that judges an advertisement for a book by its effect upon the most susceptible or gullible reader because such standard would reduce the sale of books through the mail to the level of the most ignorant person. The uncontradicted evidence establishes that the average reader in the audience for diet books is skeptical of advertising claims.
"III. 39 USC 3005, on its face and as construed and applied to Respondent herein, is unconstitutional because it lacks the procedural safeguards necessary to prevent the suppression of speech and press required by the first amendment to the United States Constitution as authoritatively interpreted in Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423.
"IV. 39 USC 3005, on its face and as construed and applied to Respondent, is unconstitutional because it eliminates any requirement of scienter, contrary to the requirements of the first amendment."
The enterprise involved here is substantially similar to Respondent's enterprise involved in Lydia Feldman, P.S. Docket No. 1/202 and U.S. v. Outpost Development Corp., D.C.C.D., Calif., Civil No. 73-16-FW. In the Postal Service Decisions in Lydia Feldman and in Brentwood Research, P.S. Docket No. 1/173, a similar enterprise, the Judicial Officer considered the same arguments presented here and found them to have no validity. More significant, however, is the fact that the three judge court in Outpost considered and overruled those arguments. That was a suit commenced by the Government asking for an order under 39 U.S.C. 3007 to authorize the Postmaster to detain defendant's mail pending the completion of administrative proceedings in Lydia Feldman. Defendant filed a cross complaint contending both 39 U.S.C. 3005 and 3007 were unconstitutional. The court held for the Government and its decision was affirmed by the Supreme Court, 42 Law Week 3361.
In its Memorandum of Decision filed August 28, 1973, the
District Court described the operation and discussed the issues concerning the application of 39 U.S.C. 3005 to the activity as follows:
"This Court finds that the advertising utilized by defendant advertises a product, i.e., a tonic, even though the customer responding to defendant's solicitation receives in return for his money the booklet entitled 'My Secret'. The advertising material of defendant was mailed through the United States mail.
"We shall first consider defendant's contentions respecting Section 3005. Section 3005 is not unconstitutional when, as here, defendant has made false representations concerning a product. Defendant's contention that the advertising advertises a booklet is without merit, for a fair reading of the advertising is to the contrary. It is already established that the First Amendment does not protect such a scheme to defraud. Lynch v. Blount, 330 F.Supp. 689, (S.D.N.Y. 1971), aff'd 404 U.S. 1007 (1972); United States Postal Service v. Beamish, 466 F.2d 804 (3d Cir. 1973). Defendant's contention that Section 3005 violates the First Amendment in that it doe not provide for a prior judicial adjudication and does not require the United States to take the initiative promptly in such a proceeding in which the Government has the burden of proof is also without merit. Lynch V. Blount, supra. Thus, defendant and cross-complainant is not entitled to an injunction enjoining the holding of the Section 3005 proceeding." (Page 3, line 16 through page 4, line 7).
"We next proceed to the question as to whether plaintiffs have made a showing that there is probable cause to believe that defendant is violation the provisions of 39 U.S.C. § 3005. It is our opinion that such a showing has been made.
"A reading of the advertising when considered along with the other evidence before the Court shows probable cause to believe that the advertising does contain false representations.
"The record before the Court establishes that when an order is placed with defendant for 'My Secret' by the use of the order form which is a part of defendant's advertising, a copy of the booklet before-mentioned is mailed to the person placing the order.
"There is probable cause to believe that defendant's scheme for obtaining money through the mail is a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension. There is probable cause shown that the language of the advertising here was reasonably calculated to cause persons of ordinary prudence and comprehension to think that if the tonic mentioned in defendant's advertising was used that the person so using could eat at meal time, snack time, and without regret, and that meal time, snack time, and party time eating would no longer be the cause of more fat because of the protection of the body of the person using the tonic by such tonic. There is also shown probable cause that a person of ordinary prudence and comprehension would understand the advertising to mean there would be no necessity to diet to lose weight if defendant's tonic should be used and that the mere use of the tonic would cause pounds and inches to vanish from sight and vanish forever. Also there is probable cause shown that the advertising would lead a person of ordinary prudence and comprehension to believe that the use of the tonic would cause a person to lose weight regardless of the cause of the user's excess weight. The booklet of defendant, 'My Secret', on the other hand, states inter alia that care should be taken with any program of weight loss and if a person is in doubt he should consult his doctor and that body metabolism is different with each individual. It also states that the person is to eat nothing between meals and that 'those extra pounds won't vanish overnight.'
The law is well established that it is only necessary to prove that a scheme is reasonably calculated to deceive persons of ordinary prudence and comprehension. United States v. Baren, 305 F.2d 527, 533 (2d Cir. 1962); Linden v. United States, 254 F.2d 560, 566 (4th Cir. 1958). In the instant case there is probable cause that the advertising is deceptive and misleading as against defendant's contention that what is advertised by defendant's advertising is a book. It is noted that in no place in the advertising is it stated that 'My Secret' is a booklet. The advertising circular states 'this amazing tonic which I call "My Secret"', and the order form state '"My Secret" -- the safest, fastest most effective fat destroyer in the world'. It can hardly be said that the printed word is a fat destroyer." (Page 6, line 6 through page 7, line 30).
For the reasons given by the Court in Outpost and by the Judicial Officer in Lydia Feldman and Brentwood Research, Respondent's exceptions contained in Arguments I - IV are denied.
Argument V consists of two parts.
Respondent asserts that the complaint was based on a booklet that was changed after the complaint was filed, and that since the original form of the booklet was discontinued Respondent cannot be found to be making the false representations charged in the compliant. In this connection Respondent contends the recent form of the booklet is beyond the scope of the proceeding. There are several flaws in that argument.
The Chief Administrative Law Judge did not find that the alleged original version 3/ had been discontinued. Counsel represented that one version had been discontinued and the other substituted for it after the proceeding had commenced. The only evidence to support that representation is that one of the booklets in evidence had been mailed and received before the complaint was filed and the other after. There is no evidence, however, that Respondent has exhausted the supply of CX-7, or has disposed of any remaining copies and may not resume mailing them even if it is not doing so now.
In any event, the complaint does not charge Respondent with respect to any particular version of a booklet. None is mentioned in the complaint. Rather the complaint charges Respondent with obtaining remittances by means of false representations as to its tonic "My Secret". If Respondent substituted CX-10 for CX-7, that action did not close out the enterprise described in the complaint. Accordingly, the Chief Administrative Law Judge properly considered both exhibits in rendering the Initial Decision. His findings carefully show separately the respects in which Respondent's representations as charged in the complaint are false when the directions in CX-7 are followed and are false when the directions in CX-10 are followed. Respondent continues to be engaged in the activities which are the subject of the complaint.
The other portion of Argument V in effect takes exception to each of the specific findings in the Initial Decision adverse to Respondent. The findings are clear and are amply supported by the record. The appeal brief introduces no matter not considered in the Initial Decision and appropriately determined. With two exceptions no further discussion is required concerning those findings.
On the question of whether Respondent represents with respect to CX-7 as charged in paragraph 2(e) that the weight loss will be permanent, Respondent cites language in the mailing coupon that the loss will be maintained as long as the tonic is used. On the other hand, the antepenultimate paragraph of the main body of the advertisement represents the extra weight will "vanish forever". Certainly, taken as a whole the advertisement represents a substantial permanency, not a period lasting only one or two weeks. 4/ Respondent contends it does not as charged in paragraph 2(h) of the complaint represent "that the tonic alters the body's metabolic processes causing it to convert all calories into energy, rather than permitting the formation of fat." It is true that the word metabolic does not appear in the advertisement. However, even a casual reading of the advertisement reveals that it is replete with references to converting calories into energy. The advertisement clearly conveys the meaning that the tonic will alter metabolism. It is disingenuous to argue, as Respondent does, that the advertisement should be construed as saying that less calories should be consumed to achieve weight loss.
Conclusion
Respondent's exceptions, including those not specifically mentioned, have been considered and are disallowed. As Respondent is engaged in conducting a scheme or device for obtaining money through the mail by means of false representations, a remedial order is being issued contemporaneously with this decision.
02/12/74
Wenchel, Adam G.
____________________
1/ The Rules of Practice are found in Title 39 C.F.R. as Part 952.
3/ In evidence as Exhibit CX-7. The other version is in evidence as CX-10.
4/ Elsewhere (Appeal Brief, p. 28) Respondent stresses "a person would not stay on the diet for longer than one to two weeks without abandoning it out of boredom".