In the Matter of the Complaint Against

LEO DABOUB
220 Nice Lane, #209
Newport Beach, CA 92663-2603

SANDRA BROOKS
1666 Newport Blvd.
Costa Mesa, CA 92627-3717

NUTRITIONAL RESEARCH
177-F Riverside Drive
Newport Beach, CA 92663-4080

AMERICAN DIET ASSOCIATION
1666 Newport Blvd.
Costa Mesa, CA 92627-3717

VITA-HEALTH RESEARCH
369 East 17th Street
Costa Mesa, CA 92627-3717

and 1011 Brioso Drive
Costa Mesa, CA 92627-3717

and 177-F Riverside Drive
Newport Beach, CA 92663-4080

P.S. Docket No. 19/185

Finn, James D. Jr.

APPEARANCES FOR COMPLAINANT:
Hilda Rosenberg, Esq.;
James A. Harbin, Esq.;
Consumer Protection Division,
Law Department,
United States Postal Service,
Washington, DC 20260-1112

APPEARANCE FOR RESPONDENT:
Charles F. Abbott, Esq.;
2230 North University Parkway,
Suite 7-G,
Provo, UT 84604-1509

POSTAL SERVICE DECISION

Respondents have appealed from the Initial Decision of an Administrative Law Judge which holds that Respondents are engaged in conducting a scheme or device to obtain money through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

Background

The Consumer Protection Division, Law Department, United States Postal Service (Complainant), initiated this proceeding by filing a Complaint alleging that, by means of direct mail advertisements and advertisements in publications of general circulation, Respondent Leo Daboub and his fictitious business names Nutritional Research, American Diet Association and Vita-Health Research, made materially false representations concerning the products Orgi-nine, Fast-Trim (also known as the Sandra Brooks Diet Program), and Energetic Contour Creme. The same charges were made against Respondent Sandra Brooks concerning the Fast-Trim product. The specific alleged false representations for each of the products are as follows:

Complaint P8 - Orgi-nine

"a. Persons taking Orgi-nine will lose weight without restricting their accustomed caloric intake, i.e., dieting and without exercising.

b. Orgi-nine significantly contributes to effecting weight loss when it is used in conjunction with other weight loss measures.

c. Orgi-nine causes weight loss even while the user sleeps.

d. Persons taking Orgi-nine will develop firm, toned muscles without exercising.

e. Orgi-nine will noticeably increase the user's energy and stamina.

f. Orgi-nine restores to older users the firm, toned muscles and physical energy of their youth or teenage years.

g. Orgi-nine causes the user's body to burn off or eliminate fat.

h. Orgi-nine causes weight loss because:

(1) it increases the user's metabolism, and because

(2) it stimulates the production of a significant amount of growth hormone and increased levels of growth hormone cause weight loss.

i. The advertising representations alleged in paragraphs a through h above are fully supported by competent medical and scientific evidence.

j. A loss of 25 pounds of fat and a gain of 5 pounds of firm, toned muscle in 6 weeks is not an unusual occurrence for persons taking Orgi-nine.

k. The amino acids, L-Arginine and L-Ornithine, are not readily available to consumers, other than through a purchase of Orgi-nine."

Complaint P11 - Fast-Trim

"a. Persons following the Fast-Trim program will lose weight without restricting their accustomed caloric intake, i.e., dieting, and without exercising.

b. Most users of the Fast-Trim program will experience an extraordinary rate of weight loss.

c. Most users or the average user of the Fast-Trim program will lose weight at the rate of over four pounds per week.

d. Most users or the average user of the Fast-Trim program will lose 6 pounds in the first 48 hours and 12 pounds in the first week.

e. Sandra Brooks lost 277 pounds in 13 months using the Fast-Trim program.

f. The Fast-Trim diet pill causes weight loss by continuously burning off or eliminating body fat, even while the user sleeps.

g. The Fast-Trim program is a new scientific discovery in the field of weight loss."

Complaint P14 - Energetic Contour Creme

"a. The Energetic Contour Creme treatment will in 55 minutes noticeably and permanently reduce the user's waist measurement, flatten the user's stomach and slenderize the user's hips and thighs.

b. The Energetic Contour Creme treatment will permanently reduce the user's cellulite and local fat deposits.

c. The Energetic Contour Creme treatment will cause a permanent loss of inches from the user's body.

d. There is competent scientific evidence fully supporting the ability of the Energetic Contour Creme treatment to cause a permanent loss of inches from the user's body and a permanent reduction of cellulite and local fat deposits.

e. The Energetic Contour Cream treatment causes permanent inch loss from the user's body and the permanent reduction of cellulite and fat deposits by shifting the location of fat cells, reshaping them, and making them more accessible to the user's circulatory system."

In the Answer Respondent Leo Daboub admitted that he and his fictitious businesses sold the products by mail, but denied that the advertisements made the representations alleged or that the representations were materially false. Respondent Sandra Brooks denied that she sold any of the products and further denied that she had any interest or partnership with the other Respondents in a mail order business.

At a hearing before an Administrative Law Judge Complainant presented the testimony of the following witnesses: Postal Inspector Ralph Cook; Daniel Gilliland, a business associate and acquaintance of Respondent Brooks; Dr. Robert Harris, a practicing physician who emphasizes nutritional medicine and primarily treats geriatric patients with degenerative diseases (he was named in the advertisements for Orgi-nine, Tr. 22-27); and Dr. Ernest J. Drenick, Chief, General Medicine Section, Medical Intensive Care Unit and Internal Medicine Clinic at the Veterans Administration Hospital, Los Angeles, California, and professor at the University of California at Los Angeles (UCLA) School of Medicine, an expert in the field of obesity (CX-85; Tr. 285-91, 625). Respondents presented the testimony of Dr. Jorge M. Lima, who is licensed to practice medicine in Brazil, with a speciality in gastroenterology, but who is not licensed to practice in the United States (RX-A; Tr. 565-78, 595).

Following the hearing and after the parties filed proposed findings of fact and conclusions of law, the Administrative Law Judge issued an Initial Decision, in which he found that the representations alleged in paragraphs 8, 11, and 14 of the Complaint are material representations made in Respondents' advertisements; that they are false; and that the Respondents, including Sandra Brooks (as to the Fast-Trim product only), are engaged in a scheme or schemes to obtain money through the mail by means of false representations in violation of 39 U.S.C. § 3005. He recommended issuance of the orders authorized by that statute.

RESPONDENTS' EXCEPTIONS TO THE INITIAL DECISION

Respondents have filed 18 separate exceptions with arguments grouping the exceptions under 10 categories. These include challenging the determination which included Sandra Brooks as a party; challenging the findings and conclusions that the alleged representations have been made as to each of the three products and that the representations are false; burden of proof questions; objecting to the nature and scope of the recommended cease and desist order; and issues regarding the constitutionality of 39 U.S.C. § 3005 generally, and as applied in this case.

Argument 1. Inclusion of Sandra Brooks Exceptions Nos. 1, 4, 9, and 15

In exceptions 1 and 4 Respondents contend that Complainant failed to prove that Sandra Brooks is doing business in association with the American Diet Association and that she solicits remittances of money through the mail for the Fast-Trim product. In exceptions 9 and 15 they contend the Administrative Law Judge erred in concluding that Sandra Brooks is properly a Respondent and is engaged in a scheme for obtaining remittances of money through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

Respondents contend the Administrative Law Judge relied upon inadmissible hearsay testimony by Mr. Gilliland concerning Ms. Brooks' relationship with Mr. Daboub's business and her involvement in the Fast-Trim program, and that the testimony did not prove Ms. Brooks was a principal of the American Diet Association. Respondents also contend that Mr. Gilliland's testimony should not have been allowed because of inadequate pre-trial notice as to the nature of the testimony. Finally, Respondents posit that Mr. Gilliland's testimony should be disregarded since he retracted some of it during the hearing.

Respondents' contentions are without merit. The testimony by Mr. Gilliland pertaining to Ms. Brooks related either to first hand observations by Mr. Gilliland or statements made by Ms. Brooks to him. Those latter statements would be admissible under Fed. R. Evid. (801 (d)(2)) as admissions of a party opponent which is not defined as hearsay.

Respondents' next contention that Ms. Brooks was not proven to be a principal of the American Diet Association is irrelevant. Complainant proved that she was a participant in the production and marketing of Fast-Trim, and that she had a monetary interest in the success of the sale of the product. Accordingly, she was deemed a proper Respondent in the proceedings. W. G. Charles Company, P.S. Docket No. 19/104 (P.S.D. September 10, 1985.)

In regard to the pre-trial notice of the extent of Mr. Gilliland's testimony, documents attached to Respondents' Brief on Appeal as Exhibits A and B show that Respondents were aware that Mr. Gilliland would be a witness and would testify about admissions made by Ms. Brooks. The lack of further details as to the nature of the testimony in relation to Ms. Brooks' status as a party in this case does not establish subsequent error by the Judge is allowing the testimony.

The fact that Mr. Gilliland retracted and clarified part of his testimony did not render all of it unreliable. His testimony concerning Ms. Brooks' relationship with the other Respondents and the promotion of the Fast-Trim product remained unchanged and was evaluated properly by the Administrative Law Judge (I.D. pp. 17-20). Further, Mr. Gilliland's testimony pertaining to Ms. Brooks' involvement in promoting Fast-Trim is corroborated by the many exhibits showing advertisements of the product (e.g., CX-37-45, 48, 50, 52-62, 64-77, 101). Finally it is noted that Respondents did not introduce any evidence rebutting Ms. Brooks' involvement in the promotion of Fast-Trim. In fact, Ms. Brooks was not called as a witness to counter or rebut any of Complainant's evidence.

Argument 2. Orgi-nine - The alleged representations Exceptions Nos. 2, 10, and 11

By these exceptions Respondents contend the Administrative Law Judge erred in finding and concluding that Complainant met its burden of proof in showing that the representations in subparagraphs 8 (a), (f), (i), (j) and (k) n1 of the Complaint, supra, were made in Respondents' advertisements.

n1 Respondents do not challenge the Administrative Law Judge's findings that the representations contained in subparagraphs (b) through (e), (g) and (h) of the Complaint were made.

Donaldson v. Read Magazine, Inc., 333 U.S. 178, 188-89 (1948), prescribes the ordinary mind or reader standard for interpretation of advertisements in applying 39 U.S.C. § 3005. By this test an advertisement is viewed in its entirety to determine its total impact or impression upon the mind of the ordinary reader. The statute is intended to protect the ignorant, gullible, naive and less critical reader, as well as the more sophisticated, wary reader. See Fields v. Hannegan, 162 F.2d 17, 18 (D.C. Cir. 1947), cert. denied, 332 U.S. 773 (1947); M.K.S. Enterprises, Inc. v. United States Postal Service, 459 F. Supp. 1180, 1184 (E.D.N.Y. 1978); Gottlieb v. Schaffer, 141 F. Supp. 7 (S.D.N.Y. 1956).

Respondents' contentions that its advertisements do not directly or by implication make the representations charged in subparagraphs 8 (a), (f), (i), (j) and (k) have no merit. The headlines alone convey the clear message that persons using Orgi-nine will lose weight without dieting or exercise, the charge of subparagraph 8 (a). Representations that the pill can make you skinny "even if you cheat" (CX-35), that it will cause weight loss "even while you sleep" (CX-20-34), and that you can "eat as much as you want" (CX-21), strongly imply that dieting or exercise are not required. The body of the advertisements reinforce these implications by further representations (CX-20-34). No doubt exists that an ordinary reader would get the impression that, as charged in subparagraph 8 (a), use of the product without a restriction of calories will cause weight loss. Contentions of Respondents that an ordinary reader would interpret the advertisements as including some form of caloric reduction or diet are not persuasive.

The charge in subparagraph 8 (f) that Respondents' advertisements claim Orgi-nine restores the firm, toned muscles and energy of youth is implied from the representations made. Although, as Respondents assert, the advertisements disclaim that a person will look 16 years old again, the tenor of the advertisements (see, e.g., CX-20, 23-34) suggests that along with the weight loss caused by the product an adult will have muscle tone, firmness, and energy, similar to teenagers.

Subparagraph 8 (i) of the Complaint alleges that Respondents' advertisements in the prior subparagraphs 8 (a)-(h) of the Complaint represent to the reader that they are supported by competent medical and scientific evidence. Respondents contend that the advertisements make no such statement, not even by implication, and the reference therein to "Medical References" does not imply that each claim in the advertisements will be supported by the few articles listed in the advertisements. In addition to specific articles cited in the advertisements, however, there are references in the advertisements to a medical doctor or research scientists, thus implying medical or scientific endorsement (e.g., CX-20-34). The entire tenor of the advertisements indicates medical or scientific support exists for the product.

With respect to charge 8 (j), Respondents contend the experience by one individual referred to in some advertisements (see CX-20, 21) of losing 25 pounds of fat and gaining five pounds of muscle in six weeks does not establish that the weight loss and muscle gain is a usual occurrence. Therefore, the argument continues, the representation is not made as charged. As Respondents assert, the subject's experience implies that the substances may also work for the reader, but does not specifically represent that the experience would be usual or unusual. Although there is no express statement to that effect, there is an implication that others can achieve the same results. Therefore, the basis of the charge that the advertisement represents a result that "is not an unusual occurrence" is made.

In charge 8 (k), it is alleged that Respondents represent that the amino acids, L-Arginine and L-Ornithine, are not readily available except by purchasing the product Orgi-nine. This charge is supported by the references in the advertisements to statements by a Mr. Pearson and Ms. Shaw, two individuals in the advertisements described as research scientists (CX-23-34).

Argument 3. Orgi-nine - Alleged falsity of the representations Exceptions Nos. 3, 12, 14, and 15

Respondents contend in these exceptions and argument that the Administrative Law Judge erred in finding and concluding that Complainant met its burden of proof in showing that the alleged representations charged in paragraph 8 of the Complaint are materially false.

The product Orgi-nine contains two non-essential amino acids, L-Arginine and L-Ornithine. If used as directed Orgi-nine adds 800 mgs. and 1600 mgs. of those acids, respectively, to the daily diet (CX-9). Respondents contend the combination of these acids will stimulate the production and release of a person's growth hormone which in turn will cause fat mobilization, an increase in the user's metabolism, with a resulting weight loss regardless of the extent of diet or exercise by the user. In support of their position Respondents rely in large part upon the opinions of their witness, Dr. Lima, and his interpretation of certain medical and scientific journals and articles. The Administrative Law Judge evaluated Dr. Lima's qualifications and his testimony and found his testimony generally unpersuasive and unreliable (I.D. pp. 11-17).

While in practice Dr. Lima specialized in gastroenterology, an area of medicine which relates primarily to the functions and disorders of the stomach. The treatment of obesity was not a usual part of his practice. He has not treated patients on a regular basis for 10 years. He does not attend professional meetings where developments in obesity are discussed. He does not regularly follow literature in the field of obesity. He has never published any scientific paper in the area of obesity. His testimony contained several weaknesses and inconsistencies, as described by the Administrative Law Judge on pages 15-17 of the Initial Decision.

Similarly, the Administrative Law Judge evaluated the credentials and testimony of Complainant's expert, Dr. Drenick (I.D. pp. 8-11), and found them most impressive and persuasive. Dr. Drenick is a recognized authority and expert on obesity. He has authored or co-authored 78 scientific and medical papers, 39 abstracts in medical journals and 15 shorter reports and letters on the subject of obesity. He is an active medical practitioner, specializing in the area of obesity, and keeps well informed of medical developments in that area. He has performed and reported on research, tests and studies involving amino acids, the ingredients of Orgi-nine.

In making his findings on the falsity of the representations (I.D. pp. 36-45), the Administrative Law Judge relied on Dr. Drenick's testimony and discounted Dr. Lima's. A review of the entire record supports the Administrative Law Judge's evaluation and the weight which he gave to the testimony of these doctors.

Respondents have not demonstrated any reversible errors in the findings on the falsity issues. Respondents refer to reports of studies which they contend support their position or demonstrate error in Dr. Drenick's testimony. However, the interpretation of these reports and determinations as to whether they reflect the informed scientific and medical consensus rests upon the testimony of Dr. Lima. That testimony was properly discounted. There were no studies which, standing alone, would support the claims made by Respondents. Quantities and combinations of substances different from Orgi-nine were used, and the results could not be extrapolated to show their effect on obese adults. At most, Respondents have shown that Dr. Drenick was not aware of one study which might have affected his view on one matter. However, this is not sufficient to discredit his testimony. His testimony was authoritative and reflected the informed scientific and medical consensus of the effect human ingestion of amino acids would have upon weight loss. Therefore, Respondents' contentions on the falsity of the representations concerning weight loss are rejected.

Argument 4. Fase Trim - The alleged representations Exceptions Nos. 5, 10, and 11

By these exceptions and argument, Respondents contend the Administrative Law Judge erred in finding and concluding that Complainant met its burden of proof to show that Respondents made the representations alleged in subparagraphs 11 (a)-(e) and (g) n2 of the Complaint, supra.

n2 Respondents do not challenge the Administrative Law Judge's finding that the representation contained in subparagraph (f) of the Complaint was made.

With regard to subparagraph 11 (a) of the Complaint, Respondents contend the advertisements do not state there will be weight loss without a restriction of accustomed caloric intake, namely, by dieting and with exercise. Respondents cite three references in their advertisements to diets and to reducing caloric intake. However, viewing the language of the advertisements in its entire context, an ordinary reader would receive the impression that the representation charged in subparagraph 11 (a) of the Complaint was made. The advertisements advise the readers that they will "Never miss a meal," and that a user of the product will "Never starve yourself." In regard to exercise the advertisements state "Never torture yourself with exercise." (CX-37-45) The full import of these representations is that reduced caloric intake will result from the use of Fast-Trim without the need for dieting or exercising. Nowhere do the advertisements state that Fast-Trim involves following a diet or eating less. In determining the effect of representations, such as the above quoted on ordinary readers, reasonable implications of advertisements are to be given weight as well as express statements. Spiegel, Inc. v. F.T.C., 411 F.2d 481 (7th Cir. 1969); Baslee Products Corp. v. United States Postal Service, 356 F. Supp. 841 (D.N.J. 1973); Nutritional Research, P.S. Docket No. 17/117 (P.S.D. December 14, 1984); cf. The New Body Boutique, Inc., P.S. Docket No. 11/95 (P.S.D. July 30, 1982).

With regard to subparagraphs 11 (b)-(d), Respondents contend the advertisements do not state there will be an "extraordinary" rate of weight loss, or most users will lose weight at the rate of over four pounds per week or will lose six pounds in the first 48 hours and twelve pounds in the first week, as alleged. Although the word "extraordinary" is not used in the advertisements, that word is a fair characterization of the import of the representations concerning weight loss. The advertisements state the product will burn off body fat "Hour by Hour," "even while you sleep." (CX-37-45) Another version of the advertisements refers to the product as a "Powerful Fat Fighting Weapon" that "Dissolves Stubborn Fat Deposits Every 12 Hours." Readers are advised they can lose "10, 20 or even 50 pounds in record time." (CX-63) Such language, as well as testimonials of persons claiming weight loss of significant amounts in short periods of time, supports the charge. n3

n3 It is established that testimonials may constitute representations. Porter & Dietsch, Inc. v. F.T.C., 605 F.2d 294, 303 (7th Cir. 1979); Kingsbridge Media & Marketing, Inc., P.S. Docket No. 20/17 (P.S.D. June 13, 1986).

Likewise, although the advertisements state, as Respondents allege, "nobody can say for sure how much a person will lose", the implication from the advertisements is that someone using the product and program will lose weight at a rate of over four pounds per week. Respondents also contend that the same disclaimer neutralizes a representation contained in the money-back quarantee to the effect that a user will lose six pounds the first 48 hours and twelve pounds in the first week. The inconspicuous disclaimer is not sufficient to dispel the effect of these bold representations. See World Communications, Inc., P.S. Docket No. 19/33 (P.S.D. August 23, 1985).

In subparagraph 11 (e) it is alleged Respondents represent that Sandra Brooks lost 277 pounds in 13 months using the Fast-Trim program. Respondents contend the Fast-Trim advertisements clearly show their program consists of four features, a diet pill, a diuretic pill, Sandra Brooks' program, and a diet, and that she stated that she lost the weight without the benefit of a pill to help her. Therefore, they argue the charged representation that she lost the weight by using the Fast-Trim program was not made. However, an integral part of the advertisements is the representation of Ms. Brooks' astounding weight loss. The impression from the representations is that she achieved her weight loss by a program similar to the Fast-Trim program. If such were not the case there would have been no purpose for the inclusion of her weight loss history in the advertisements. The record thus supports the finding that the representation was made as charged.

In subparagraph 11 (g), it is charged that the Fast-Trim program is a new scientific discovery in the field of weight loss. Respondents emphasize that the advertisements do not say anything about the program being a new "scientific" discovery in the field of weight loss. The advertisements emphasize that Fast-Trim is a new diet discovery. As Respondents note, they refer to it as a "unique system and two amazing tablets that, when used together, make up a program, that, quite simply, works like crazy]" (CX-37-45) This language, together with other language in the advertisement emphasizing the newness of the discovery, raises the implication that the program has new scientific importance in dealing with weight loss. Accordingly, the representation as charged was impliedly made.

Argument 5. Fast-Trim - Alleged Falsity of Representations Exceptions Nos. 6, 14, and 15

By these exceptions and argument Respondents contend the Administrative Law Judge erred in finding and concluding that the alleged representations in subparagraphs 11 (a) through (g) of the Complaint, supra, were materially false and that Complainant met its burden of proof.

With regard to Complaint subparagraph 11 (a), that Respondent misrepresented that the Fast-Trim program will cause a weight loss without dieting, Respondents argue that its "expert" testified that the average user of Fast-Trim would lose weight without dieting because one of the program's pills contained phenylpropanolamine hydrochloride (PPA), an appetite suppressant, which according to the witness will cause a 1/2 to 1 pound weight loss per week. The witness who presented testimony was Dr. Lima, whose testimony was found to be unpersuasive and unreliable (I.D. 11-17). The Administrative Law Judge adopted Dr. Drenick's testimony and a Food and Drug Administration report to conclude that Fast-Trim will not cause weight loss without the user dieting (I.D. 46-53).

Respondents also rely on the testimony of Dr. Lima to support their contentions that the representations in subparagraphs 11 (b)-(d), that Fast-Trim users experience extraordinary weight loss at the rate of over four pounds per week, averaging six pounds in the first 48 hours and 12 pounds in the first week, are not false. Again in the weighing of opinions, the Administrative Law Judge properly relied on the opinions of Dr. Drenick rather than those of Dr. Lima. The amount and rate of weight loss represented in the advertisements were significantly more than the normal range for most persons on a 1200 calorie diet, such as included in the Fast-Trim program (Tr. 371-78; I.D. 51).

Respondents contend a ruling by the Administrative Law Judge during the hearing at Tr. 838-45, was reversible error because it precluded Respondents from presenting additional evidence to support their position on rate of weight loss. Dr. Lima had testified about results achieved by other programs where fasting or lower calorie diets had been used. After hearing some testimony, the Administrative Law Judge sustained an objection on grounds of relevancy. Although Respondents assert they had more evidence to present, they did not make a credible offer of proof of additional evidence that should have been allowed. Therefore, their argument cannot be accepted. In any event, they have not shown that the other diets and programs were comparable to Fast-Trim and that the same type of weight loss could be expected. The Administrative Law Judge sustained a similar-type of objection when Complainant attempted to elicit evidence concerning yet another diet (Tr. 877). Both actions were appropriate.

The representation in Complaint subparagraph 11 (e) concerns Ms. Brooks' weight loss. Complainant concedes it has not proved that she did not lose the weight stated. At issue is the implication that her loss resulted from use of the Fast-Trim program. The evidence is clear, and Respondents admit, that she did not use the pills included in the Fast-Trim program and that her diet was different. The Administrative Law Judge properly found that the overall impression created by the advertisements is false.

With respect to Complaint subparagraph 11 (f), that Respondents falsely represent the Fast-Trim diet pill causes weight loss even while the user sleeps, Respondents contend that the product will cause weight loss by burning off or eliminating body fat. Persuasive evidence in support of this contention was not presented however. The only persuasive evidence on the issue was presented by Complainant. It supports the finding that PPA, which is primarily used in products as a decongestant (see I.D. 46), will not cause weight loss while the user sleeps or at other times (Tr. 341, 497-501). See Porter & Dietsch, Inc. v. F.T.C., 605 F.2d 294 (7th Cir. 1979), also involving a weight-loss product with PPA.

The representation alleged in subparagraph 11 (g) pertains to the product being a new scientific discovery in the field of weight loss. Respondents contend the behavioral modification program which is included as part of the product package is different from other behavioral programs used for weight loss. The behavioral modification, the use of the mild diuretic, and the alleged new and unique diet, Respondents contend, make the program a new scientific discovery, especially the combination of those elements along with the use of PPA. Analysis of the evidence does not support these claims. Again Respondents rely upon the unreliable testimony of Dr. Lima. Complainant established by a preponderance of the evidence, however, that the components of the Fast-Trim plan had been used for years, and that only the 1200 caloric diet component had any effect on weight reduction. (Drenick Testimony, Tr. 339-53, 369-75.)

All of Respondents' contentions concerning the falsity of the representations are rejected as unsupported and without merit.

Argument 6. Energetic Contour Creme Exceptions Nos. 7, 8, 10, 11, and 15

Respondents contend the Administrative Law Judge erred in finding and concluding that the representations alleged in subparagraphs 14 (a)-(e), supra, were made and were materially false. Respondents further contend they did not have to present a case on the falsity question because their advertisements do not make the representation alleged in each subparagraph that the effect of the product on the user will be permanent. n4

n4 Respondents presented no evidence on this issue at the hearing on this matter. Counsel represented that the product had been discontinued and thus there would be no defense to the false representation charge (Tr. 854).

The advertisements do not expressly represent a permanent effect (CX-17-19). However, permanence is implied from language that use of the product will "Slenderize Your Hips Plus Trim Down Your Thighs Plus Reduce Your Waist Measurement," together with language that this "is not just another of those 'sweat it off' or 'water loss' gimmicks where you put the inches back on the first time you take a drink of water." The impression is reinforced by words describing the product's effect as actually shifting the location of fat cells, reshaping them, and making them more accessible to the circulatory system. The absence of any language which would suggest the effect may be temporary also reinforces the implication that the effect may be permanent. Cf., Sterling Drug, Inc. v. F.T.C., 741 F.2d 1146, 1154 (9th Cir. 1984), cert. denied, 105 S.Ct. 1843 (1985). Respondents' arguments to the contrary are not persuasive.

Argument 7. Evidentiary Rulings Exception No. 13

In exception 13 Respondents contend the Administrative Law Judge erred in concluding Complainant had established its case by a preponderance of the competent, reliable, and probative evidence of record. Respondents argue that Complainant failed to meet its burden of proof in this case and that the Administrative Law Judge made errors in evidentiary rulings causing him to consider inadmissible evidence and to exclude admissible and relevant evidence.

The only example referred to, however, concerns the testimony of Dr. Robert Harris. In advertisements for the Orgi-nine product, Dr. Harris was expressly referred to and allegedly quoted (e.g., CX-20 and 21). His testimony was elicited by Complainant for the purpose of demonstrating that he had not authorized use of his name in the advertisements and that he had not made the remarks attributed to him. The questions were proper and relevant to the issues raised in the Complaint, especially to subparagraph 8 (i). Respondents also contend the Administrative Law Judge failed to mention testimony elicited on cross-examination in which Dr. Harris allegedly admitted the quotations in the advertisements attributed to him may have been essentially correct (Tr. 56-58). However, the cited testimony does not demonstrate this contention. Instead, it supports the position that Dr. Harris was misquoted and, at most, suggests there may be ways of utilizing ornithine and arginine to stimulate growth hormone. This is far removed from the statements attributed to him in the advertisements.

Respondents have failed to point out any error in rulings made at the hearing by the Administrative Law Judge which show that his ultimate findings and conclusions are not supported by competent, reliable, and probative evidence. Therefore, this exception and argument is without merit.

Arguments 8, 9, and 10. Objections to Nature and Scope of Cease and Desist Order - Constitutionality - Alleged Lack of Findings and Conclusions Exceptions Nos. 16, 17, and 18

In exception 16 Respondents contend the Administrative Law Judge erred by applying 39 U.S.C. § 3005 in a manner which violated their First Amendment Constitutional rights. Their argument (No. 8) relates primarily to Part I of the cease and desist order, although it includes other parts of the order as well. In argument 9 and exception 17, Respondents contend the Administrative Law Judge erred by failing to make appropriate Findings of Fact and Conclusions of Law to support Part I of the order. In argument 10 and exception 18, Respondents contend he erred in approving paragraph A of Part I of the order.

Part I of the cease and desist order directs Respondent Leo Daboub, his agents, representatives and employees under any name, including but not limited to the other named Respondents herein, to cease and desist from representing in advertisements for any products which are supposed to reduce weight and/or fat that:

A. The product will cause the user to lose weight and/or fat without dieting and exercise.

B. Any appetite suppressant will cause the user to lose weight and/or fat without dieting.

C. The product will aid in the reduction of weight and/or fat unless competent and reliable scientific evidence supports the claims.

D. E. and F. Rates or amounts of weight and/or fat loss will be achieved unless competent and reliable scientific evidence supports the claims.

G. The product will cause the user to lose weight and/or fat when sleeping.

H. The product "burns" or "melts" fat.

Parts II - IV of the order pertain to the three specific products, Orgi-nine, Fast-Trim and Energetic Contour Creme, and order the Respondents to cease and desist from aming the representations alleged in Paragraphs 8, 11, and 14 of the Complaint in this matter.

Respondents initially state that they are not contending 39 U.S.C. § 3005, the statute under which this action was brought, is unconstitutional per se. Nevertheless, they argue subsequently at great length that the authorization in § 3005 for the cease and desist order, and also § 3012 authorizing civil penalties for violation of § 3005 orders, are unconstitutional. Respondents thereafter shift their constitutional arguments to focus on the contents of the cease and desist order, contending the broad scope of Part I is an infringement of their First Amendment rights. In regard to the issue of the constitutionality of 39 U.S.C. § 3005 and 3012 the Administrative Law Judge correctly held that issues involving the constitutionality of statutes and the validity of Postal Service regulations may not be decided by Administrative Law Judges, 39 C.F.R. § 224.1(c)(4)(iv)(B). The Judicial Officer is likewise prohibited from making such constitutional determinations, 39 C.F.R. § 224.1(c)(4)(iii).

Respondents' contentions are stated in generalities and hypotheticals. They contend generally that the issuance of the cease and desist order imposes a present "chilling effect" upon Respondents and other advertisers. They further contend First Amendment free speech rights will be violated because of the threat of civil penalties under § 3012 and that there exists an ambiguous standard used to determine false advertising. Respondents additionally argue that the cease and desist order is overbroad and that no basis exists for the issuance of Part I of the order.

In support of their contentions Respondents rely on various legal precedents which deal with First Amendment freedom of speech issues. These include such cases as Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980); Consolidated Edison Company of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530 (1980); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Bigelow v. Virginia, 421 U.S. 809 (1975); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980). While these cases consider instances of the infringement of First Amendment rights they are inapposite to the instant case, as it is established that false commercial advertising, such as employed by Respondents, has no constitutional protection. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72 (1976); Konigsberg v. State Bar, 366 U.S. 36, 49 (1961); United States Postal Service Co. Athena Products, Ltd., 654 F.2d 362 (5th Cir. 1981) cert. denied 456 U.S. 915 (1982).

Turning to the question of the legal basis for Part I of the recommended cease and desist order, such broad orders have been upheld by the courts consistently. See e.g., Federal Trade Commission v. Mandel Brothers, Inc., 359 U.S. 385, 392-93 (1959); Federal Trade Commission v. Rubberoid Co., 343 U.S. 470, 473 (1952); Federal Trade Commission v. Nat'l Lead Co., 352 U.S. 419, 431 (1957); see also National Labor Relations Board v. Express Publishing Company, 312 U.S. 426, 435-37 (1941). Provisions in cease and desist orders which are not limited to the precise violation committed and which cover future violations of a related nature are called "fencing-in" provisions. Orders containing such provisions may be issued (1) when they are reasonably related to the unlawful act found to exist, Jacob Siegel Co. v. F.T.C., 327 U.S. 608, 611-14 (1945) and (2) where there is a likelihood, based on the violator's past conduct, that he will perpetrate additional violations, American Home Products Corp. v. F.T.C., 695 F.2d 681, 705-09 (3d Cir. 1982). Both criteria are satisfied here.

Respondents' representations as to their weight and/or fat reduction products have been found to be materially false. Part I of the proposed order covers future representations of other similar weight and/or fat reduction products. A reasonable relationship between the unlawful act and the prohibited action thus exists. Respondents' past conduct strongly indicates the probability of recurring violations, absent the order. Evidence received in this matter shows that Respondent, Mr. Daboub, has a history of dealing in and offering to the public weight and/or fat reduction products. Mr. Daboub likewise has shown a propensity for committing repetitive breaches of agreements in which he agreed to refrain from making certain representations about weight reduction products, which representations were similar to those considered in this case (CX-78 and 79). Mr. Daboub has exhibited the "blatant and utter disregard" for the law, which amply supports and justifies the issuance of a broad fencing-in cease and desist order. Sears, Roebuck and Co. v. F.T.C., 676 F.2d 385, 394 (9th Cir. 1982).

Respondents' argument 9 (exception 17) relates to its perceived prerequisites for the issuance of the fencing-in portion of the cease and desist order. As Respondents have asserted, Complainant made certain assertions giving justification for the fencing-in provisions (Pre-trial memorandum filed December 4, 1984). In its Proposed Findings of Fact and Conclusions of Law, Complainant also gave reasons to support those provisions (pp. 106-14 and findings refered to therein). Respondents argue that the Administrative Law Judge failed to make the findings and conclusions which Complainant had stated were necessary before such an order can be issued. Thus, reasons Respondent, there is no basis in the decision which supports the fencing-in provision.

Although the Administrative Law Judge did not set forth separate findings and conclusions regarding justification for the fencing-in order, he did discuss the criteria, supra, for issuing such an order. He also discussed evidence relating to the criteria and recommended issuance of the order. Thus, albeit in a conclusory fashion, he found the requisites supporting such an order to be present. Nevertheless, in the future, the Administrative Law Judges in ruling on a proposed fencing-in provision should make specific identifiable findings of fact and conclusions of law as to the basis for the issuance or denial of such an order. However, there is no reversible error present due to the lack of such specificity.

Respondents contend the Administrative Law Judge erred in the admission of certain evidence which supported the issuance of Part I of the proposed order. They refer to the admission in evidence of a final order on a breach of consent agreement relating to the Willpower diet, a prior diet product of Mr. Daboub (CX-78), the post-hearing ruling allowing in evidence a final order on a breach of consent agreement relating to the Mannan-Trim product, another Daboub product (CX-79), and the ruling that the Administrative Law Judge would not examine the circumstances giving rise to the issuance of those orders. The receipt of the exhibits was proper as they showed a pattern of prior conduct by Mr. Daboub. On the latter ruling, the Administrative Law Judge rejected Respondents' offer of proof relating to circumstances of two unidentified breaches of consent agreements. This ruling was made in the context of a general statement by Respondents attorney that it would be necessary to look into the conduct that caused the alleged breaches, all the surrounding circumstances, and "have to try those cases." (Tr. 180). The Administrative Law Judge's ruling that he would not go beyond the final orders was correct.

Respondents' final argument (No. 10) and exception (No. 18) contend that the language of Paragraph A of Part I of the order is erroneous because it requires that future advertisements state that exercise is necessary for weight loss. That paragraph of the recommended order prohibits representations:

"that the product will cause or aid in the reduction of weight and/or fat without restriction of the user's accustomed caloric intake, i.e., dieting, and without exercise."

Complainant contends Respondents misinterpret this provision. According to Complainant a representation in future advertisements that both dieting and exercise are required to lose weight is not mandatory as Respondent alleges. Instead, the language merely prohibits a representation that a person can lose weight without either dieting or exercising.

Paragraph A is susceptible to both interpretations and, therefore, requires clarification. It is reworded by changing the word "and" on the last line to "or". As clarified, the language is appropriate and is supported by the testimony of Complainant's expert, Dr. Drenick (e.g., Tr. 294, 438-39). Similar changes are being made to Parts II and III of the order.

CONCLUSION

After consideration of the entire record and Respondents' exceptions to the Initial Decision, it is concluded that the Respondents are engaged in schemes to obtain money through the mail by means of materially false representations. Accordingly, Respondents' appeal is denied and the orders authorized by 39 U.S.C. § 3005 are issued herewith.