In the Matter of the Complaint Against

THE NEW BODY BOUTIQUE, INC. also doing business as
THE NEW BODY BOUTIQUE
P. O. Box 2481
Grand Central Station
New York, NY 10163
and at P. O. Box 2521
Grand Central Station
New York, NY 10163
and at 2105 Lakeland Avenue
Ronkonkoma, NY 11779
and at 37 Eleventh Avenue
Huntington Station, NY 11746

P.S. Docket No. 10/169;

07/07/82

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
Hilda Rose C L U Wnberg, Esq.
Consumer Protection Division
Law Department United States Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
L 2 S ee H. Harter, Jr.
256 Van Ness Avenue
San Francisco, CA 94109

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of an Administrative Law Judge which holds that, with regard to the sale of the product "Second Skin," Respondent is engaged in a scheme for obtaining money through the mail by means of false representations in violation of 39 U.S.C. § 3005.

BACKGROUND

On March 20, 1981, the Consumer Protection Division, Law Department, U.S. Postal Service, filed a Complaint, amended by order of June 2, 1981, which alleges that Respondent falsely represents that:

"(a) Second Skin will cause you to lose 5 pounds in 5 minutes and 5 inches in 5 hours.

(b) Second Skin will cause a loss of inches and pounds lasting for more than a temporary period.

(c) Second Skin is an effective reducing method for persons who are overweight.

(d) Second Skin is an effective treatment for the accumulation of excess body fluids, and will rid you of such fluids.

(e) Second Skin will make you lose weight, without your having to diet or exercise.

(f) Second Skin will cause you to lose inches while you sleep."

In its Answer Respondent denied all the allegations of the Complaint. At a hearing before an Administrative Law Judge, Complainant presented the testimony of Postal Inspector Gilbert L. Barta, and William R. Ayers, M.D. Respondent presented the testimony of Marc L. Sommer, a chiropractic physician. On the basis of the testimony presented and the exhibits in the record, the Administrative Law Judge concluded that Respondent makes the representations alleged in paragraph 3 of the Complaint and that these representations are materially false in violation of 39 U.S.C. § 3005.

RESPONDENT'S EXCEPTIONS TO THE INITIAL DECISION

Respondent has stated three exceptions to the Initial Decision, each of which is hereafter addressed.

THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING

THAT THE AVERAGE OVERWEIGHT PERSON READING THE

ADVERTISEMENTS WOULD INTERPRET THEM SUBSTANTIALLY

AS CHARACTERIZED BY COMPLAINANT. (Conclusion of

Law number 3.)

In the Initial Decision the Administrative Law Judge found that the advertisements introduced into evidence made the representations alleged in the Complaint. Respondent contends that not all of the advertisements make the alleged representations. Respondent points out that 48 advertisements were introduced into evidence, 47 of which are in a "relatively 'large' format" and one in a "small" format. According to Respondent, none of the advertisements viewed by a "person with the 'ordinary mind,'" Donaldson v. Read Magazine, 333 U.S. 178 (1948) and not parcelled into isolated phrases, M.K.S. Enterprises, Inc. v. U.S.P.S., 459 F.Supp. 1180 (S.D.N.Y. 1978) makes the representations alleged in the Complaint. Respondent breaks down its arguments into two categories, based on the "large" and "small" format advertisements.

The Small Advertisement

The small advertisement (CX-4) was received as an insert to the product as part of a test purchase made by Complainant (Tr. 14-15). It is the only advertisement soliciting remittances to Respondent at the P.O. Box 2481 address. Inspector Barta testified that he has only observed the advertisement being distributed with purchases of Second Skin (Tr. 26-27). Thus, Respondent argues that only satisfied purchasers or their friends would make purchases from the P.O. Box 2481 address. Respondent's argument is not persuasive.

While the distribution of the advertisement has only been shown to be to purchasers of Second Skin, this does not establish that the purchasers understand the way the product functions, that they were satisfied, or that they would not transmit the advertisement to a wide range of potential consumers. The record in this case is inadequate to support Respondent's argument that "anyone responding to P.O. Box 2481 is well aware of the nature of the product they will receive." (Resp. Brief, p. 3.)

Respondent argues that it is concluded in the Initial Decision that its advertisement makes the representations alleged in the Complaint but in the findings of fact portion of the decision language from the small advertisement was cited only with respect to the representations contained in paragraphs (b) and (c) of the Complaint. Apparently, Respondent argues, therefore, that the remainder of the representations alleged in the Complaint are not made in its small advertisement. It also argues it does not make the representation alleged in paragraphs (b) and (c).

A review of the record supports the Administrative Law Judge's findings regarding paragraphs (b) and (c). The advertisement as a whole, would lead a person of ordinary mind to conclude that Second Skin will cause a loss of inches and pounds for more than a temporary period, (Comp. para. (b)) and that it is an effective reducing method for persons who are overweight (Comp. para. (c)). While specific citation is not made to the small advertisement in the findings relating to the allegation of paragraph 3 (c), some reference is made to the language of the advertisement in connection with this allegation and it is concluded the advertisement makes this representation. Specifically, the advertisement states:

"Drop pounds and inches any time with SECOND SKIN. ... Exercising or lounging around, this suit will drop inches and pounds like magic from your waist, hips, thighs ... all over."

The foregoing language, the absence of any reference to the transitory nature of any losses, the failure of the advertisement to advise consumers they must diet or exercise to lose weight would lead the ordinary reader to conclude that weight will be lost without diet or exercise (Comp. para. (e)).

Respondent argues that the ordinary reader would understand that exercise is required because the advertisement contains two photographs of models wearing the product, one of whom is clearly exercising. In addition, it argues that the reference in the advertisement to a 64-page training manual "connotes exercise." The specific language of the advertisement, however, does not advise the purchaser that the exercises in the manual or any exercise regimen is to be used with Second Skin. It simply states that "our 64-page training manual will get you in shape and give you valuable glamour tips, too." (CX 4) The ordinary purchaser would not expect the results represented for Second Skin would be dependent upon whatever regimen is included in the training manual. Moreover, the photographs of the model in an exercise position would not alert the ordinary reader to the necessity of exercise. While one model appears to be exercising the other is not, thus indicating that the suit will cause weight loss whether or not exercising. Furthermore, the language previously quoted from the advertisement would lead the ordinary reader to the conclusion exercise is not required.

Accordingly, a person of ordinary mind viewing the advertisement in its totality would conclude that the representations in paragraphs (b), (c) and (e) are made in Respondent's "small" advertisement. Donaldson v. Read Magazine, supra.

The Large Advertisements

As Respondent argues, the large advertisements contain similar, though not identical copy. Respondent's arguments attempt to refute the allegations in the Complaint in some instances by distinguishing between the advertisements. Each Complaint allegation is addressed and considered in relation to the large advertisements.

"(a) Second Skin will cause you to lose 5 pounds in 5 minutes and 5 inches in 5 hours."

Respondent correctly states that no every advertisement explicitly makes the representation that Second Skin will cause the user to lose up to five pounds in five minutes and five inches in five hours. However, certain of the advertisements at both the Lakeland Avenue and P. O. Box 2521 addresses make this specific representation (CX 5 & 6). Advertisements seeking remittances at the Huntington Station address make the representations lose "up to 5 pounds in 15 minutes - 5 inches in 5 hours." (CX-1B.) Thus, the "5 inches in 5 hours" representation is expressly made at each address. The representation "up to 5 pounds in 15 minutes" is sufficiently close to "5 pounds in 5 minutes" to fall within the purview of the language of paragraph (a) of the Complaint. Furthermore, other variations in the language of the advertisements such as "you will lose pounds and inches in minutes" in substance and effect make this representation (e.g. CX 8c). The "inches and minutes" language is sufficiently similar in substance and impact to be equivalent to "5 inches in 5 hours." Additionally, all of the advertisements state that the product erases extra pounds and unsightly inches "instantly." Thus, while the large advertisements may not make both representations explicitly in every case, the reader of ordinary mind would find them implicit in all. Accordingly, Respondent's advertisements make the representation alleged in paragraph (a) of the Complaint.

"(b) Second Skin will cause a loss of inches and pounds lasting for more than a temporary period."

Respondent argues that the term "temporary" is vague and should be construed strictly against the Complainant. It also argues that the advertisements do not expressly or by implication represent that the loss of inches and pounds will be permanent. From a review of the nature of the product which is illustrated in the advertisements and the various references to steam/sauna rooms, Respondent further argues that it is "most unlikely that the person with the ordinary mind would find such an implied representation."

The Administrative Law Judge equated the term "temporary" with the bodily process by which weight is regained by drinking "one or more glasses of water" (I.D., p. 6). The process described is of a short duration (Tr. 74-75) and comports with the normal definition of the term "temporary." The Administrative Law Judge then proceeded to analyze the language used by Respondent in the advertisements. Citing such terms as "lose," "shed," "slenderizing," "keep trimmer," "erasing your extra pounds and unsightly inches," "drop pounds and inches anytime" and considered in their totality he found the representations of the advertisements to connote permanence of loss of inches and pounds. Combined with the complete and material omission of any mention that the weight loss caused by Respondent's product would be temporary, the Administrative Law Judge found the representation to be made.

The record supports the Administrative Law Judge's finding. Respondent's arguments to the contrary based on the nature of the product and the references to steam/sauna rooms are not persuasive that the ordinary reader would regard the advertisements as representing temporary loss of inches and pounds. Accordingly, Respondent's exception is without merit.

"(c) Second Skin is an effective reducing method for persons who are overweight."

Respondent concedes that it offers for sale a weight-inch loss product. However, it argues that the use of the term "effective" requires a comparison with other known weight-inch loss products. The Administrative Law Judge relied on specific and explicit language in the advertisements to reach his conclusion that the representation is made. A review of the advertisements supports this finding. Respondent's arguments that the advertisements do not represent that Second Skin is "effective" because of some vagueness arising from the use of that word is not persuasive. The Administrative Law Judge's finding is supported by the record.

"(d) Second Skin is an effective treatment for the accumulation of excess body fluids, and will rid you of such fluids."

Respondent, while arguing that the advertisements do not represent that Second Skin is an effective treatment for ridding the body of excess fluids, concedes that the advertisements do "suggest that some of the excess fluids in a persons' body will be lost while wearing the product as directed." The Administrative Law Judge cited specific language in the advertisements in concluding that this representation is made (I.D., p. 7). The language relied on by the Administrative Law Judge is explicit, and the total impression of the advertisements conveys to the reader a representation that Second Skin will rid the body of excess fluid. The finding of the Administrative Law Judge is supported by the record.

"(e) Second Skin will make you lose weight, without your having to diet or exercise."

Respondent argues that the testimony of Dr. Ayers establishes that obese persons know they must diet or exercise to lose weight (Tr. 112) and therefore would not read the advertisements as representing otherwise. It claims that the words "no hunger" and "you can wear it while jogging, doing housework, gardening, exercising or just lounging around" cannot be taken as a representation that the product does not require diet or exercise.

The Administrative Law Judge found that the words of Respondent's advertisements "just lounging around", "No pills," "No hunger" and "LOSE INCHES WHILE YOU SLEEP" imply that Second Skin will cause weight loss without diet or exercise. Coupled with the omission of any mention of a need for exercise or diet, he found the impression conveyed to the ordinary reader was that diet or exercise was not required. The language of the advertisements relied on by the Administrative Law Judge is that Second Skin will cause loss of weight and inches without diet or exercise. This impression is in no way dispelled by the illustration in the advertisements or the language cited by Respondent. The fact that it is common knowledge among obese persons that weight cannot be lost without diet or exercise will not deter such persons from concluding otherwise based on the representations of the advertisements. See Specialty Sales Co., P.S. Docket No. 11/79 at p. 7 (P.S.D. April 5, 1982). Accordingly, the finding of the Administrative Law Judge that this representation is made in Respondent's advertisements is supported by the record.

"(f) Second Skin will cause you to lose inches while you sleep."

Respondent argues that since the instructions accompanying the product direct the user to exercise, this somehow negates the express statement in the advertisements that users will "lose inches while you sleep." Respondent's argument is not persuasive. The Administrative Law Judge properly relied on the explicit language of the advertisements which makes this representation (I.D., p. 7-8). The later received instructions do not alter the representation which induced the purchase of the product (See discussion, infra.) Accordingly, Respondent's argument is without merit.

THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING

THAT THE INSTRUCTIONS ACCOMPANYING THE PRODUCT

WERE NOT TO BE CONSIDERED IN ANALYZING THE

EFFECTIVENESS OF THE PRODUCT. (Conclusion of Law 5,

INITIAL DECISION at 13-14)

Respondent argues that the truth or falsity of the representation could not properly be determined without considering the intended and expected uses of the product as outlined in instructions furnished with the product. Respondent's argument is not persuasive. The Administrative Law Judge held that the advertisements represent that the Second Skin garment is the sole cause of weight reduction and that the truthfulness of the representations must be determined according to the effectiveness of the product alone. (I.D., pp. 13-14). The Administrative Law Judge was correct in reaching this conclusion.

The fallacy of Respondent's argument is that the purchaser has already paid for and received the product when the instructions are received. Therefore, the instructions can have no effect on the truth or falsity of the representations in the advertisements, as they are not available to the consumer for information and comparison at the point when the consumer is induced to purchase. The instructions simply come too late to dispel the effect of the representations in the advertisements. Complimentary Vacation Club, P.S. Docket No. 10/175 at pp. 12-13 (P.S.D. March 9, 1982). Accordingly, Respondent's argument is without merit.

"THE ADMINISTRATIVE LAW JUDGE ERRED IN

CONCLUDING THAT THE ALLEGED REPRESENTATIONS

WERE MATERIALLY FALSE. (Conclusion of

Law no. 8, Findings of Fact pp. 8-12)."

Respondent takes exception to the Administrative Law Judge's conclusion that the representations alleged in the Complaint are false. Respondent's arguments address each of the alleged misrepresentations in the order in which they appear in the Complaint.

"(a) Second Skin will cause you to lose 5 pounds in 5 minutes and 5 inches in 5 hours."

For the purposes of this appeal Respondent concedes that the product will not cause a person to lose five pounds in five minutes (Resp. Brief, p. 12). However, it argues that Complainant's evidence does not address any other representation of pound loss over time such as "5 pounds in 15 minutes". Further it argues that with regard to the representation that five inches will be lost in five hours, the Administrative Law Judge erred in relying on the testimony of Dr. Ayers because it was unspecific, dealt with pathologically sick individuals, and did not address the amount of inches to be lost over the entire body.

The Administrative Law Judge found the representation with respect to loss of both inches and pounds to be false. For the most part he relied on the testimony of Dr. Ayers, but also he cited the testimony of Respondent's expert, Dr. Sommer, that "it is hard to quantify how many pounds, how many inches somebody can lose in a certain amount of time." (I.D., p. 9)

The testimony relied on by the Administrative Law Judge, as well as other evidence in the record, supports the finding that the representation of loss of pounds and inches as alleged in the Complaint is false. The evidence establishes that not only will five pounds not be lost in five minutes, but under normal conditions five pounds of fat or fluid will not be lost in an hour (I.D., pp. 8-9 citing Tr. pp. 71, 73 & 149; Tr. 81-88). The testimony regarding loss of inches relates to the condition described in Respondent's advertisements and establishes that five inches will not be lost in five hours (Tr. 82-88). Accordingly, Respondent's contention is without merit.

"(b) Second Skin will cause a loss of inches and pounds lasting for more than a temporary period."

Respondent argues, in effect, that there is a difference between the term "permanent" and the phrase used in the Complaint allegation "more than a temporary period." Respondent also ______ that its product is Second Skin plus an exercise program, and the Administrative Law Judge erred in not treating it as such.

Respondent's argument relating to the use of the word "temporary" in this allegation has been previously addressed. While the word may lack some precision, nonetheless the record supports the finding that any fluid loss which does occur as the result of the use of the product will be short lived and will not result in the loss of inches and pounds which is represented in Respondent's advertisements. This is true even if the product is considered to be a combination of the garment and an exercise program. As

Respondent's exercise program states, permanent loss of inches and pounds requires dieting (CX 9b). Furthermore, the product advertised is the garment alone not the garment and the exercise program.

The Administrative Law Judge also relied on the testimony of Dr. Ayers to support his conclusion that the representation is false. Respondent contends that such reliance was misplaced. Respondent argues that the testimony of Dr. Ayers establishes that only a portion of the weight loss due to sweating would be regained and the Administrative Law Judge's conclusion that full replenishment will occur is in error. Respondent's argument ignores the testimony relied on by the Administrative Law Judge about the body's physiological mechanisms which maintain a status quo or homeostasis of body fluid (I.D., p. 9). Dr. Ayers testified that fluid lost through sweating would be replenished as a part of the normal body response within minutes to hours (Tr. 74-75). Furthermore, Respondent's argument that Dr. Ayers testified that the product would cause the loss of a couple of pounds over a month which would be more than temporary is in the context of the use of the product with an exercise program. The testimony establishes that only 90 calories would be lost over a period of a month as the result of the use of the garment alone (Tr. 113-115, 150).

Respondent asserts that the Administrative Law Judge erred in finding that the 90 calorie loss over a 30-day period would result from both exercise and use of Second Skin. While the Initial Decision does appear to have misconstrued the testimony, it does not alter the fact that the record establishes a loss of only 90 calories for use of Second Skin alone. As noted previously, the exercise program is not part of the product. Accordingly, the record supports the finding of the Administrative Law Judge. Respondent's contention is without merit.

(c) Second Skin is an effective reducing method for persons who are overweight.

Respondent argues that its product would cause a loss of two to three pounds a month used in conjunction with its exercise program. It also argues that the psychological benefits of being physically active are enhanced because of the increased sweat production caused by Second Skin. Additionally, Respondent asserts that its expert, Dr. Sommer, testified that use of Second Skin will increase the metabolic rate.

The Administrative Law Judge found that the product only causes fluid loss which would be quickly replenished by normal bodily functions. Respondent's assertions with respect to this finding are once again based on the premise that its product consists of a garment and an exercise program. As previously found, the advertisements represent that the garment alone will produce the results. Dr. Sommer's testimony was also based on the use of Second Skin while exercising. Dr. Sommer admitted that Second Skin used alone, without diet or exercise, was not an adequate treatment for obesity (Tr. 184).

The record establishes that an effective reducing program requires the elimination of fat, and that Second Skin only causes loss of fluid, which would be quickly replaced by the body's natural processes. Accordingly, Respondent's argument is without merit.

"(d) Second Skin is an effective treatment for the accumulation of excess body fluids, and will rid you of such fluids."

Respondent argues there is no misrepresentation because testimony in the record establishes that Second Skin will cause a person to temporarily lose body fluids which is what the advertisement represents. It also contends that persons who are suffering from a patological condition of excess body fluid would know that Second Skin should not be used for treatment of this condition.

The Administrative Law Judge found that most overweight people do not suffer from the excess accumulation of fluids, but those who do need to be treated by means other than increased perspiration (I.D., p. 11). The Administrative Law Judge also found, and this decision has affirmed, that the representation as to treatment of the accumulation of excess body fluids is made by the advertisements. The disclaimer referred to by Respondent which states "Note: as with any weight-loss product, follow directions and consult physician if you have any lasting ailment," does not negate that representation. Disclaimers advising consultation with a physician are ineffective in light of the overall effect of an advertisement. Uxbridge Products Company/Uxbridge Health Products Company, P.S. Docket No. 2/199 (P.S.D. Dec. 24, 1974), aff'd Kurzon v. United States Postal Service, 539 F.2d 788 (1st Cir. 1976). Furthermore, Respondent's arguments with regard to ridding the body of excess fluids concede that the fluids are lost only temporarily. As previously discussed the impression created by the advertisements is one of permanent loss. Thus, the falsity of the representation of permanent loss is affirmed. Additionally, the record supports the finding of the Administrative Law Judge that an increase in perspiration is not an effective treatment for accumulation of excess body fluids (I.D., p. 11). Accordingly, Respondent's argument is without merit.

(e) Second Skin will make you lose weight, without your having to diet or exercise.

Respondent argues, in effect, that the Administrative Law Judge misconstrued the evidence in finding that this representation is false. The Administrative Law Judge found that both experts testified that Respondent's product will not cause a user to lose weight without diet or exercise (I.D., p. 11). The testimony relied upon by the Administrative Law Judge supports his finding. Additional testimony in the record likewise supports the finding (e.g. Tr. 71-73, 97-98). Accordingly, Respondent's argument is without merit.

"(f) Second Skin will cause you to lose inches while you sleep."

Respondent once again belabors the point that the product must be considered in conjunction with the instructions provided for its use. The Administrative Law Judge found that testimony in the record establishes that Second Skin would not cause weight loss while sleeping (I.D., p. 12). Even if the exercise program were considered to be part of the product, Respondent's arguments do not address how one is to exercise while sleeping. Further, such instructions or disclaimers received after the initial contact are insufficient to dispel the impression created by the advertisement. Kurzon v. United States Postal Service, supra, 795 n. 8 citing Exposition Press, Inc. v. Federal Trade Commission, 259 F.2d 869, 873 (2nd Cir. 1961) and Carter Products, Inc. v. Federal Trade Commission, 186 F.2d 821, 824 (7th Cir. 1951); Complimentary Vacation Club, P.S. Docket No. 10/175 (P.S.D. March 9, 1982). Insofar as the falsity of the representation is concerned, the Administrative Law Judge's finding is supported by the unrebutted evidence in the record.

Respondent also argues that the Administrative Law Judge made no finding as to whether or not Second Skin would cause a loss of inches during sleep. The record is persuasive that a loss of inches requires a loss of weight, and that even the loss of several pounds would not translate into a change in inches (Tr. 113). Inasmuch as the record establishes that no weight would be lost, it establishes that the prerequisite for loss of inches would not occur. Therefore, there would be no loss of inches. Accordingly, Respondent's contention is without merit.

CONCLUSION

After consideration of the entire record and Respondent's exceptions, it is concluded that Respondent is engaged in a scheme to obtain money through the mail by means of materially false representations. Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued with this decision. The remedial order will be implemented in accordance with the joint motion of the parties.