In the Matter of the Complaint Against

SARA MICHAELS
Post Office Box 15607
Post Office Box 33002 at
St. Petersburg, Florida 33733

P.S. Docket No. 5/95

06/29/79

Cowden, Joseph M.

APPEARANCE FOR COMPLAINANT:
Thomas A. Ziebarth, Esq.
Consumer Protection Division,
Law Department, U. S. Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
Jack Paller, Esq.
Katz, Paller and Land, Suite #1633,
400 Colony Square,
Atlanta, GA 30361

OPINION ON ALLEGED BREACH OF CONSENT AGREEMENT

Complainant, the United States Postal Service, alleges that respondent has breached a Consent Agreement entered into by the parties by continuing to make false representations which, under the terms of the Agreement, it agreed to discontinue.

FINDING OF FACTS; Background

Respondent markets a diet supplement "Sara Michaels Protein for the Bust" which is to be used in conjunction with an exercise program. In an Initial Decision of August 23, 1977, with regard to this product, it was found that respondent made the following false representations in its advertisements:

"SARA MICHAELS PROTIEN FOR THE BUSTLINE (hereinafter referred to as SMP) contains a unique combination of amino acids not readily available in an ordinary balanced diet;

SMP, when used in conjunction with daily, one-minute exercise program, will cause the female user's bustline measurements to increase from 3 to 4 inches in 2 to 3 weeks;

SMP, when used in conjunction with daily, one-minute exercise program, will cause the female user's breast to become larger, firmer and fuller.

SMP is an integral and essential part of the SARA MICHAELS regimen and makes a material and substantial contribution to the claimed benefits".

On appeal to the Judicial Officer, the Initial Decision was affirmed by Postal Service Decision dated February 2, 1978. Subsequent thereto Order No. 78-7, which directed the Postmaster at St. Petersburg, Florida to detain respondent's mail and to take other related actions, was issued.

On March 6, 1978 the parties entered into a Consent Agreement which, in part, provided that the respondent would permanently discontinue the promotional activities which had been found to be false. The Agreement also provided that if it was breached by the respondent or any party in privity with respondent, issuance of an order pursuant to 39 U.S.C. § 3005 would be appropriate.

By Order of March 16, 1978, in consideration of the Consent Agreement entered into by the parties, Postal Service Order No. 78-7 was revoked.

On February 1, 1979, complainant filed a petition alleging breach of the Consent Agreement. It is complainant's position that respondent's use of before and after photographs and the language in respondent's present advertising constitute misrepsentations essentially the same as those found to be false in the Initial Decision. From respondent's advertisements complainant specifically quotes the following:

"In the last year over 200,000 women have ordered Sara Michaels Protein for the Bust and I've received thousands of letters telling me of the fantastic results that have been achieved.

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With the Protein and exercise, however, they were actually increasing the size of the breast themselves.

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The Sara Michaels Protein is designed to give results in the bust, not the bustline.

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Even from the first day I mixed the Protein formula with milk and started using it with the two minute exercise, I felt results. After just even days, I felt very dramatic results. Then two weeks later, I felt my breast becoming firmer, fuller and they had more lift. Even though my inches didn't change in my bra size, my bust did and, one of the really neat parts is, even though I usually wear a bra I don't have to. I look just as good without one. My husband really noticed the difference too. He said that I look bigger in my bust now than I ever did, even when I was pregnant ....."

Accompanying "before" and "after" photos:

In less than 15 days I went from tragic to terrific using the fantastic Sara Michaels Protein for the Bust."

The "before" photograph to which complainant refers is a small photograph showing a female, the pose and detail not revealing any particular information regarding her bosom. The "after" photograph is much larger and apparently shows the same lady clad in a blouse with an open neckline which reveals an exceptionally large bosom. A similar photograph (after) is on the label of respondent's product.

In summary, complainant claims that the language and photographs used by respondent in its present advertisements are materially and essentially the same as those previously found to be false.

On February 6, 1979, the Judicial Officer issued an order directing the Postmaster at St. Petersburg, Florida to detain respondent's mail subject to conditions set forth in the order and Consent Agreement.

By letter of February 21, 1979, respondent forwarded a motion requesting release of the detained mail. By Order of March 9, 1979, the Judicial Officer denied respondent's motion.

Respondent subsequently filed a request for limitation of scope of any § 3005 orders; a request for reconsideration of the order denying the motion to release detained mail and a request for hearing. Pursuant to the latter request, a hearing was held in Atlanta, Georgia on April 4, 1979.

ADDITIONAL FINDINGS OF FACT BASED ON EVIDENCE SUBMITTED BY THE PARTIES AT THE HEARING OF APRIL 4, 1979.

At the hearing the parties stipulated that Exhibit 1 to complainant's petition was a true copy of an advertisement used prior to the Consent Agreement, Exhibit 2 a copy of an advertisement used subsequent to the Consent Agreement and Exhibit 3 a copy of the label from the product used subsequent to the Consent Agreement (Tr. 7, 8). The parties also stipulated that the record would include the prior Initial Decision, the Postal Service Decision and the Consent Agreement (Tr. 9).

Complainant rested its case on the basis of the documentation entered into the record by stipulation (Tr. 8).

In support of its position that it is not in violation of the terms of the Consent Agreement respondent presented the testimony of Mr. Haraka, a consultant in marketing and research (Tr. 15). n1 Mr. Haraka holds degrees in Business Administration and has held marketing positions with several commerical organizaton. He has never conducted a study on women's attitudes toward their bustlines or advertising pertaining to women's bustlines (Tr. 25). He claimed that his general knowledge of the field, coupled with personal experience, conversations with other members of the marketing profession and articles published in trade magazines gave him special insight. He was unable to identify any documents, studies or any specific item or event upon which his testimony was based (Tr. 27).

n1 Transcript citations pertaining to Mr. Haraka's experience, studies and surveys are to the transcript in a related case Sean Michaels, P.S. 5/16. By agreement of the parties this testimony was incorporated into the record of this appeal. (Tr. 13, 26).

Mr. Haraka was familiar with the provisions of the Consent Agreement and considered that respondent's present advertising was drafted in response to the terms of that Consent Agreement (Tr. 20). Apparently because of his belief as to what was necessary for respondent to comlpy with the terms of the Consent Agreement, his testimony was slanted to such an extent that, notwithstanding his background in marketing, it was nonpersuasive. For example:

JUDGE COWDEN: Just one final question. Petitioner's Exhibit No. 2, the ad that's now in use, is that ad -- or rather, could that ad, in your opinion, be reasonably interpreted by an average reader to mean that if this product is used, the bust, the breasts, will become larger?

THE WITNESS: No.

JUDGE COWDEN: Why not?

THE WITNESS: Primarily because they cannot state that, and, therefore, for a prospect to derive that would not be related to the advertisement. You're speaking of Exhibit 2, aren't you?

JUDGE COWDEN: Yes. All right, So, bust builders -- the use of the term bust builders, in your opinion, would not be interpreted by any -- I'm not saying all, now -- but any average reader as meaning that you would have a larger bust if you used this product?

THE WITNESS: You see, when we talk about any, it's very difficult to be very specific about any, but, in general, I do not believe that prospects would come away with the impression that by using this product they would increase the size of their bust by any material amount.

JUDGE COWDEN: All right. Would you have the same answer on the basis of the photographs, the before and after photographs, that a reasonable, average individual would not interpret those photographs to mean that if this product was used their bust would, in fact, become larger?

THE WITNESS: No. A reasonable, ordinary person would think that their bust would have been improved.

JUDGE COWDEN: How?

THE WITNESS: By utilizing the product, by it becoming rounder, firmer, fuller, more shapely.

JUDGE COWDEN: How can you say it would convey these particular characteristics and not larger, also? How do you exclude larger?

THE WITNESS: There is no mention of larger in the advertisement." (Tr. 27).

Respondent also called Dr. James E. Cooper, a physician with extensive experience in aesthetic medicine, (i.e taking someone who is not satisfied with their appearance and changing it to something that is satisfactory) and bariatric medicine, the study of weight control (Tr. 36). Dr. Cooper's testimony established that the size of the breast could be increased by increasing the fatty deposits within the breast themselves (Tr. 42). He further testified that studies have shown that of all weight gained, approzimately 1/16 goes to the breast (Tr. 43).

The Doctor's computations indicated that over a 30 day period the consumption of the Sara Michaels Protien Product would equal the consumption of 5,400 calories. On the basis of 3,600 calories equalling a pound, he concluded that approximately three quarters of an ounce would be added to each breast (Tr. 48). He further advised that a typical small breast constituted 200 hundred grams of mass and that three quarters of an ounce equals approximately 23 gramsor roughly a 10% increase in the weight of a 200 gram breast (Tr. 49). As a rough yardstick, the Doctor considered that a 200 gram breast would approximate the size of a half tangerine or small orange (Tr. 49).

The Doctor belived that over a 30 day period exercises of the the type included in the Sara Michaels Program would produce approximately the same results as the increased caloric intake (Tr. 70).

Nothing unique is contained in the Sara Michaels Product and the benefits realized by the consumption of the product can readily be realized through the consumption of the common foods e.g meats, fish, eggs, and cheese (Tr. 66, 67). Nothing in the Sara Michaels Product results in greater fatty deposits in the breast than would be realized through the consumption of any source of protein (Tr. 67). The only difference between the Sara Michaels Product and common food of similar content is the form of packaging and presentation (Tr. 67).

In the treatment of his patients, Dr. Cooper supplements a program of diet and exercise with counseling and guidance in other areas (Tr. 63). The Doctor considered that most small busted women would be quite pleased with an increase of an inch to an inch and a half to their bustline plus an increase of firmness and fullness of the breast (Tr. 73). Simple mathematical calculations, based on the Doctor's testimony show that adherence to the Sara Michaels Program, both through consumption of the product and faithful performance of the exercises, over a thirty day period would result in an increase in the radius of the breast of only 1/10 of an inch. n2 Only 60 to 70 percent of this increase would be achieved in the "less than 15 days" represented in the advertising (Tr. 71).

Assume a 200 gram breast with a diameter of 3", a 10% weight increase because of diet and a 10% increase because of exercise.

DECISION

The Initial Decision, as affirmed by the Postal Service Decision, held that respondent had falsely represented that its product was a unique product which, when used in conjunction with a brief exercise program, would result in substantial improvement in the female users breasts and bustline in a relatively short period of time, i.e. two to three weeks.

The testimony presented by Dr. Cooper at the hearing confirmed that there is nothing unique about respondent's product. It also confirmed that the product will not enable a small breasted woman to go from "tragic to terrific" in less than 15 days.

Under the terms of the Consent Agreement respondent agreed that it would discontinue use of the representations which had been found to be false. Notwithstanding changes in wording such as the elimination of representations with regard to specific inch gains, respondent's advertising still conveys the same basic false representations. Respondent's present advertising represents that respondent's product is a "fantastic" specially designed product which, when used in conjunction with a brief exercise program, will provide substantial, i.e. "terrific", results in less than 15 days.

Respondent has not discontinued the use of the promotional activities and representations which were found to be false. Therefore, respondent is in violation of the terms of the Consent Agreement.

RESPONDENT'S MOTIONS

At the hearing on this matter counsel for respondent moved for a verdict on behalf of respondent on the grounds that the exhibits attached to complainant's petition were the totality of evidence of the complainant and that they did not prove a breach of the Consent Agreement (Tr. 11). A ruling on the motion was deferred. On the basis of the conclusion reached above, i.e. that respondent's current advertising is a continuation of the misrepresentations previously made, respondent's motion is denied.

Respondent's request for reconsideration of our Order of March 9, 1979 presented nothing warranting modification of that Order. It is affirmed.

Respondent also filed a "Request for Limitation of Scope of Proposed § 3005 Orders". In view of the United States District Court for the District of Columbia decision in Civil Action No. 79-690 of April 3, 1979 which denied respondent's motions, this request is moot.

SUMMARY

Respondent has not discontinued the use of the promotional activities and representations which were found to be false by the Initial and Postal Service Decisions. Therefore, respondent is in violation of the Consent Agreement entered into between it and the United States Postal Service. Accordingly, pursuant to the provisions of the Consent Agreement, the attached Order is being issued to the Postmaster of St. Petersburg, Florida.