In the Matter of the Complaint Against

THE NEW BODY BOUTIQUE, INC. also doing business as
THE NEW BODY BOUTIQUE and as
SHRINK-WRAP, et al.
at 2105 Lakeland Avenue
Ronkonkoma, NY 11779-7411, et al.

P.S. Docket No. 11/95;

POSTAL SERVICE DECISION ON 06/20/83
Dicus, Carroll C. Jr.

APPEARANCE FOR COMPLAINANT:
                                                             HildaRosenberg, Esq.
                                                             Consumer Protection Division Law Department
                                                             United States Postal Service
                                                             Washington, DC 20260-1100

APPEARANCE FOR RESPONDENT:
                                                             Lee H. Harter, Esq.
                                                             2256 Van Ness Avenue
                                                             San Francisco, CA 94019-2513

PETITION FOR SUPPLEMENTAL ORDER

AND REQUEST FOR HEARING

Prior proceedings in this matter led to the issuance of False Representation Order No. 82-110 dated July 30, 1982, False Representation Order No. 82-125 dated September 8, 1982, and False Representation Order No. 83-14 dated January 12, 1983, with respect to the sale of the product "Shrink-Wrap" and "Shrink Wrap System."

On April 14, 1983, Complainant filed a Petition for Supplemental Order with attachments alleging Respondent is evading or attempting to evade the provisions of False Representation Orders No. 82-110 dated July 30, 1982, and 83-14 dated January 12, 1983, by conducting a similar enterprise at two new addresses. The Petition requests the issuance of a Supplemental Order against: The New Body Boutique, Inc., P.O. Box 1046, Scarsdale, NY 10583 and The New Body Boutique, Inc., P.O. Box 4228, Springdale, CT 06907.

Respondent filed a response to the Petition in which it denied that it is evading or attempting to evade the provisions of the False Representation Orders. It also requested that a hearing be held if Complainant's Petition is not denied outright, a request that Complainant opposes. Respondent also filed a Supplemental Response to Petition for Supplemental Order in which a second advertisement at the Scarsdale, NY address, which had not been a subject of Complainant's Petition, was submitted. Respondent contends that the advertisement contains no misrepresentations, and requests that, if a False Representation Order is issued, the return portion be stayed for 20 days to allow the parties to develop procedures for segregating incoming mail. Complainant, in its reply to the Supplemental Response, argues that the new advertisement continues to misrepresent, and, alternatively, seeks to amend the Complaint. Respondent opposes the amendment, seeks an amendment of its own, and requests that the Judicial Officer issue an order to show cause intended to obtain information on the number of consumer complaints against Shrink Wrap System.

I. THE PRODUCT

In order for a Supplemental Order to issue, the promoter must be the same, the product must be the same or similar, and the representations must be continuing. Respondent admits that it is the same promoter, but denies that the product or the representations in the new advertisements are the same. With regard to the product, Respondent contends that it is now promoting the "Shrink Wrap System," which includes a belt, a diet, an exercise program and a behavior modification program. In a prior decision, on an earlier Petition for Supplemental Order, The New Body Boutique, Inc., P.S. Docket No. 11/95 (P.S.D. Nov. 30, 1982), this issue was presented. It was concluded that Respondent's references to the "Shrink Wrap System" did not change the representation that the garment was the product which would produce the results represented. That finding was subsequently affirmed and issuance of the Supplemental Order upheld by the United States District Court for the District of Columbia. The New Body Boutique, Inc. v United States Postal Service, Civ. Action No. 83-0197 (D.D.C. April 21, 1983). The present advertisements have not been changed substantially in this regard. The belt is still the focal point of both the text and the graphics in the advertisement. Accordingly, it is concluded that the product is the same. As there are no factual matters to be determined regarding whether the product has changed and, in any event, Respondent has not indicated what evidence it would present at such a hearing, its request for a hearing is denied.

II. REPRESENTATIONS

Complainant alleges, and Respondent denies, that the representations made in Respondent's current advertising are substantially the same as those which were the subject of the prior proceedings. The representations alleged in the Complaint which Complainant contends are continued in Respondent's current advertising are:

"(a) Within 24 hours the Shrink-Wrap will cause a net loss of 2 to 3 inches from the user's waist and 2 to 3 inches from the user's hips.

. . .

(c) In accomplishing the loss described in (a) and (b) the Shrink-Wrap does not merely shift or compress unwanted weight but actually rids the body of it.

(d) The weight loss through use of the Shrink-Wrap will not be regained within several hours.

. . .

(g) The Shrink-Wrap is an effective means of reducing obesity without diet or extensive exercise."

Respondent employs three advertising formats at the new addresses. Complainant alleges that one of the formats makes all of the above representations, and the remaining two make, respectively, (d) and (g), and (g). Respondent denies that its new advertisements make any of the above representations.

Advertisements Alleged To Make Representations (a), (c), (d), and (g):

Complainant argues that representations (a), (c), (d) and (g) are made in Respondent's advertisements identified as Complainant's Exhibits a and a-1 and Postal Service Exhibit 2. Complainant alleges that the only difference between those advertisements and advertisements previously found to make the representations is a statement on the response coupon which provides:

"Please rush me the entire Shrink Wrap System - including the Super Action Shrink Wrap belt, easy exercise program, lo-cal eating plans, and methods to modify eating patterns . . ."

While Complainant argues that statement changes nothing, Respondent argues that the statement fully discloses the makeup of the Shrink Wrap System to the consumer and removes any ambiguity about the product.

The narrative portions in the body of the advertisements in question are identical to those previously found to make the representations in Complaint paragraphs (a), (c), (d) and (g) and which Respondent admitted, in the prior proceedings, made the representations in Complaint Paragraphs (c) and (d).^*/The New Body Boutique, Inc., P.S. Docket No. 11/95 (P.S.D. Nov. 30, 1982); The New Body Boutique, Inc. v. United States Postal Service, supra. Respondent argues that the quoted language in the coupon tells the consumer he is buying an exercise program, lo-cal eating plan and behavior modification methods in addition to the garment. After reading the coupon statement, Respondent contends "there is no possibility that the person of the ordinary mind would mistake the (sic) he/she was going to receive." Respondent's Response, at 4. According to Respondent, this is enhanced by placing the statement on the coupon, referred to as the "Point of Purchase" in an affidavit, attached to Respondent's Response, from David Wittels, an experienced direct marketing executive. Mr. Wittels, in addition to characterizing the coupon as a singularly effective point for display of information, states that the language on the coupon would make customers "fully cognizant of what they were receiving" (Wittels affidavit, p. 2).

The advertisements contain pictures of trim models wearing the belts and emphasize inch loss where the belts are worn. In one of the advertisements, the belt is compared to a wet suit and wet suits are represented as causing weight loss in skin divers. Moreover, references to exercise, diet and behavior modification are presented as enhancements to weight loss, and not as essential to the consumer's success in shedding pounds and inches. In short, the graphics and verbiage which were previously held to continue the representations alleged in Complaint paragraphs (a), (c), (d) and (g) remain. Cf., The New Body Boutique, supra. An additional reference to the "system" and its elements in the coupon does not cure Respondent's failure to use a clearly worded description of a process which includes exercise, diet and behavior modification not as enhancements to weight loss, but as the essential means the consumer must employ to lose the pounds and inches represented in the advertisements. The ordinary reader would continue to conclude that while use of the Shrink-Wrap garment is more effective with diet, exercise and behavior modifications, it is also effective without those elements.

Complainant argues that even the name - Shrink-Wrap - conveys the impression of a reducing garment. Respondent argues that Complainant should be estopped from so arguing, as it has not done so in prior proceedings. However, before a party may be estopped from asserting a position, it must knowingly have taken an inconsistent position previously. In re Johnson, 518 F.2d 246

(10th Cir.) cert. denied 423 U.S. 893 (1975). The position taken by Complainant is not inconsistent with its prior position that the overall impression of Respondent's advertising is that the belt will cause weight loss without diet and exercise. Respondent's argument is rejected.

Accordingly, it is concluded that Respondent continues to make representations (a), (c), (d) and (g) in the advertisements identified as Complainant's Exhibit a and a-1 and Postal Service Exhibit 2.

Advertisements Alleged to Make Representations (d) and (g):

(d) The weight lost through use of the Shrink-Wrap will not be regained within several hours.

(g) Shrink-Wrap is an effective means of reducing obesity without diet or extensive exercise.

Complainant argues that representations (d) and (g) are made in advertisements identified as Postal Service Exhibits 1 and 3 through 8. Respondent contends that it has added language that clarifies the role of diet and exercise in its system, and that Complainant has taken certain phrases out of context.

The advertisements contain such statements as:

"Use the Shrink Wrap System to reduce your waist, hips . . . everywhere . . ."

"Lose 4-6 Inches Fast, Scientifically . . . The original Shrink Wrap waist trimmer is no cheap cloth . . .

"Girdles also may squeeze it in, but the Shrink Wrap System takes it off . . . fast]

". . . after you drop a few inches, it easily adjusts to help you lose more]"

Further, the layout and graphics of the advertisements, with slim models wearing the belt, contribute to the representation of the belt as an effective means of achieving weight loss. The testimonials which make no mention of diet or exercise and emphasize losses in body size where the belt is worn, add to the overall impression of effective weight loss through use of the belt.

Respondent argues that its copy is clarified by addition of the following:

"We know our quality materials and scientifically designed program works. It has worked for years for athletes who concentrate the isometric effect on flabby muscle areas like stomach and hips. And, many entertainers and others who have to trim down fast rely on our easy exercise and diet program to use more calories than they take in, too."

The foregoing paragraph once again refers to diet and exercise as enhancements to success, while maintaining the impression that the belt alone will accomplish the basic task of reducing. Nor is there substance to Respondent's argument that Complainant has quoted phrases out of context. To the contrary, the impression conveyed by the advertisement is that use of the belt is an effective means of losing weight. The advertisement does not explain that any inch loss sustained through use of the belt is transient, and that diet and exercise by the consumer, and not the belt, are the essential ingredients to sustained weight loss through the "Shrink Wrap System."

Accordingly, it is concluded that Respondent continues to make representations (d) and (g) in advertisements identified as Postal Service Exhibits 1 and 3 through 8.

Advertisements Alleged To Make Representation (g):

"(g) The Shrink-Wrap is an effective means of reducing obesity without diet or extensive exercise.

Respondent has placed a third advertising format at issue, identified as Respondent's Exhibit A. Although otherwise identical to other advertisements (cf., P.S. Ex. 4), it contains the following in a box above the coupon:

"IMPORTANT NOTICE

The Shrink Wrap waist belt works instantaneously as a figure trimmer and continually as an isometric muscle toner. The entire Shrink Wrap System is an extremely fast and effective way to lose excess weight and reduce spare inches by lowering caloric intake and increasing caloric expenditure so essential to a medically sound weight loss plan. Of course, these results cannot be achieved solely through the use of the belt. You must use the entire Shrink Wrap System to slim down quickly and permanently."

Respondent argues that the notice "eliminates entirely any of the alleged misrepresentations as stated by Complainant." Complainant argues that the notice is insufficient to make the reader aware that the belt alone is not an effective means of reducing obesity, as charged in representation (g).

The body of the advertisement transmits the impression that the belt alone is an effective means of weight reduction. The text and testimonials emphasize weight loss in the area where the belt is worn, and the graphics show the belt on slim models. Further, the notice continues to refer to the belt as a "waist trimmer," an ambiguous reference to the belt's function, and one distinguished in the notice from its effect as "an isometric muscle toner." As Complainant notes, the notice also refrains from using clear terms, such as "diet and exercise," preferring the more obfuscatory reference to "lowering caloric intake and increasing caloric expenditure." The advertisement is ambiguous as to the function of the belt, and one of the interpretations possible is that the belt alone is an effective means of reducing obesity. Where an advertisement is capable of two meanings, it is still misleading. Rhodes Pharmacal Co. v. FTC, 208 F.2d 382, 387 (7th Cir. 1953); The New Body Boutique, supra. Thus, it is concluded that Respondent continues to make representation (g) in the advertisement identified as Respondent's Exhibit A.

Complainant seeks to amend the Complaint to include a new paragraph (h), alleging that the belt contributes to the reduction of obesity. While the Rules of Practice at 39 C.F.R. § 952.12 permit amendments to conform to the proof, the issue must be reasonably within the scope of the pleadings and must have been tried by express or implied consent of the parties. Complainant's broad characterization that since the issue was "necessarily explained," it was "obviously . . . tried by consent . . ." is not persuasive. At this late stage, it would be prejudicial to Respondent to permit the amendment. The issue tried, while related, imposed a different standard. Respondent may have been able to submit evidence of a lesser capability on the part of the belt which, while useful to show a contribution toward weight reduction, was useless to establish its capability to meet the issue at hand - i.e., its ability as an independent reducing agent. See Sales Unlimited, P.S. Docket No. 12/147 (P.S.D. Oct. 26, 1982). Accordingly, Complainant's Motion To Amend is denied.

Respondent has filed its own Motion To Amend Pleadings To Conform To Proof, again attempting to resurrect Complaint paragraph (e), which was dismissed without prejudice. This matter has been addressed previously and Respondent has raised no additional arguments which establish that the prior dismissal was erroneous. The Motion is denied. See New Body Boutique, Inc., P.S. Docket No. 11/95 (P.S.D. July 30, 1982).

Respondent has also filed an Application For An Order To Show Cause, requesting an order to compel Complainant to produce the consumer complaints against Respondent. However, consumer complaints, or the lack of them, are not at issue here, as the existence of dissatisfied customers need not be established to find a violation of 39 U.S.C. § 3005. Farley V. Heininger, 105 F.2d 79 (D.C. Cir.), cert. denied 308 U.S. 587 (1939); Oriental Nurseries, Inc., P.S. Docket No. 9/116 (P.S.D. May 19, 1981). Respondent's Application For An Order To Show Cause is denied.

Finally, Respondent has requested that the return portion of any False Representation Order issued in this proceeding be stayed for twenty days to permit the parties to develop a system for segregating mail. As the advertisement precipitating the request was found to make representation (g), and is therefore in violation of 39 U.S.C. § 3005, it is subject to the False Representation Order. Respondent's request for a stay is denied.

CONCLUSION

For the foregoing reasons, a Supplemental False Representation Order is being issued against Respondent with this decision.

*/ The advertisements contain such statements as "Don't Hold Fat In - Lose It" (Complainant's Ex. Comp. Ex. a and a-1) and a comparison of the belt to a skin diver's wet suit which makes skin divers weight "many pounds less." (Postal Service Exhibit PS Ex. 2).