In the Matter of the Complaint That

LADY AMPLE, INC.,

at

Houston, Texas

(hereinafter called Respondent), is engaged in conducting a scheme for obtaining money through the mails in violation of 39 U.S. Code 259 and 732.

P.O.D. Docket No. 1/37

INITIAL DECISION OF HEARING EXAMINER

            The acting Assistant General Counsel, Richard S. Farr, for the General Counsel, hereinafter referred to as the Complainant, by complaint filed July 31, 1958, charges Respondent with violating 39 U.S. Code 259 and 732, in the conducting of an enterprise for the sale of a breast developer device through the mails by means of certain false and fraudulent representations.  Answer was duly filed together with authorization of representation by certain named counsel and an application for transfer of the entire hearing to Houston, Texas.  In this application there was set forth the names of several persons Respondent intended to present as his witnesses and who would offer relevant and material testimony.  By reply dated September 9, 1958, the Complainant did not oppose this application for transfer of hearing.  By order filed September 2, 1958, the application was granted and the hearing scheduled for October 1, 1958.  Immediately prior to the hearing the authorized attorney filed on September 29, 1958, his withdrawal as counsel and advised that he was attempting to obtain another attorney.  The case was duly heard in Houston, Texas, on the scheduled date of October 1, 1958 the Respondent being represented by counsel, namely, John D. Richardson, Esq., and the Complainant by the said Richard S. Farr, Esq.  By agreement between counsel made at the conclusion of the hearing proposed findings of fact, conclusions of law and supporting reasons were to be filed not later than ten days after counsel for Respondent received the transcript, an expedited delivery of same having been ordered by the undersigned.  Counsel for Respondent having received the transcript on October 8, 1958, said documents were to be filed not later than Monday, October 20, 1958.  Counsel for Complainant filed on October 9, 1958, his proposed findings of fact, conclusions of law and supporting reasons.  There was duly filed by counsel for Respondent on October 20, 1958, for submission to the undersigned, “Findings of Fact and Conclusions of Law.”  Thereupon the case was completed for this decision.

            It is alleged in the complaint that the Respondent is making the following false and fraudulent representations:

            a.  That by the use of the “Lady Ample” instrument, women of all ages (“Young Ladies, Wives, Mothers and Grandmothers”) will be able to “ATTAIN BUSTLINE BEAUTY!”; i.e., that any woman with under-developed or unsightly breasts will develop “* * * classic feminine loveliness, well shaped, firm, fully developed bust[s] that men admire and women envy.  A naturally developed bustline”;

            b.  That the “LADY AMPLE instrument” “* * * is a method using a completely new approach to the enhancement of the bust”; i.e., that the principles of respondent’s device have not heretofore been employed by or made available to the public for such purposes;

            c.  That by the use of the “LADY AMPLE instrument” “* * *every normal, healthy woman, regardless of age, can become a Lady Ample” (i.e., have “A bust that is well shaped, firm and fully developed* * *”);

            d.  That it is the concensus of informed scientific and medical knowledge and opinion “* * *that female breasts develop naturally only when the tissues are adequately fed with the nourishment carried by the circulatory system.  Such feeding builds the breasts to nature’s intended firmness and fullness”; i.e., that stimulation of the blood circulation in the breasts aids in the development, rejuvenation and/or beautification thereof;

            e.  That respondent’s device was scientifically designed and “developed exclusively to promote tissue feeding circulation in the breasts by safe, passive massage” which “* * * causes an increase in the flow of life giving blood to its tissues.  In this way the breast is given food so it can grow to its natural, attractive shape”; i.e., that women with underdeveloped, malformed or unsightly breasts will be able to develop natural, well-shaped, firm, fully developed, beautiful breasts through the use of said instrument;

            f.  That for any woman, “The Lady Ample Instrument” is absolutely safe to use;

            g.  That “* * *it is advisable to use the Lady Ample once every several weeks to retain the natural fullness you have developed”; i.e., that by the use of said device once every several weeks any well-endowed woman will be able to retain the youthful contour and shape of her breast and will be able to prevent flabbiness, sagging, or a receding to less than normal size;

            h.  That any user of the “Lady Ample instrument” may expect results in development similar in size and shapeliness to that indicated by the illustrated silhouettes incorporated in respondent’s advertisements.

            In its answer Respondent admitted the allegations of paragraph (1) of the complaint which are as follows:

            (1)  That public attention is attracted to said scheme by means of advertising matter widely distributed to the public and which is calculated and intended to induce readers thereof to remit money through the mails to Respondent:

            It is also admitted in the answer that the exhibits attached to the complaint represent copies of advertising matter mentioned above.  However, Respondent denies in substance that the alleged representations concerning the efficacy of the device in question are being made and that it is conducting a fraudulent scheme in violation of the invoked statutes.

            At the hearing the Complainant presented the investigating inspector, Charles e. Dunbar and two medical doctors, one of whom is in private practice in Houston, Texas, and the other currently associated with the Austin State Hospital and who for 24 years was a medical advisor for the Food and Drug administration.  Counsel for Respondent presented only one witness, [1] namely, a lay user and it was stipulated between counsel that two or three other lay users would give substantially the same testimony (Tr. 183).  Counsel for Respondent thereupon chose to rest although his attention was directed to the several named persons including officers of the Respondent corporation and a medical doctor who were listed in the said application for transfer of hearing (Tr. 171, 172) and who were present during a substantial part of the hearing (Tr. 196).

FINDINGS OF FACT

a.  Preliminary Findings and Representations

            Respondent having made the aforesaid admissions I find as proposed by Complainant that “Respondent is obtaining and attempting to obtain remittances of money through the mails at Houston, Texas for a device or instrument called the ‘Lady Ample’” and “That public attention is attracted to said scheme by means of advertising matter widely distributed to the public and which is calculated and intended to induce readers thereof to remit money through the mails to Respondent.”  (See Rule 201.8(c)).  For some documentary proof supporting these findings reference is made to the two test correspondence cases made by the inspector and during the course of which the Respondent solicited the sales price of $44.50 for the device which amount the inspector in one of the test cases remitted and received the device in question (Dept. Exhibit B-8-A with sub-exhibits).

            Applying the tests for determining the meaning of advertisements as given in the cases of Donaldson v. Read Magazine, 333 U.S. 178; Charles of the Ritz Dist. v. F.T.C., 143 F.2d 681, and Vibra Brush Corp. v. Schaffer, 152 F. Supp. 461, I find from an examination of the circular material used by Respondent that it is making the alleged false and fraudulent representations above stated.  In essence the test is the impression made on the person to whom the advertisements are directed.  In this case it is the average adult female person.  Suffice it is to say that the alleged representations are in the main quotations from the circular and it is clear that to said average person the Respondent is claiming in substance that any female user of the advertised device would obtain fully developed breasts.  It is noted that Counsel for Respondent merely makes in his proposed findings the bare assertion that the alleged representations are not being made, that they are “merely phrases taken out of contest” and “are not reasonable deductions. . .”  No specific proposal or argument is made in this regard.  Also counsel for Respondent in his proposed findings regarding the falsity of the representations merely asserts that “Respondent has made no false or fraudulent statements in its advertising.”[2]

            Description of the device and instructions:  In the main the device consists of a plastic cup to which there is attached a hose.  The end of the hose is to be connected to a water tap.  When used the cup is placed over the breast and the water tap turned on.  A vacuum is created which causes a suction action which is controlled by placing a finger over a small opening in the stem of the cup.  The user is instructed to so “exercise” the device by applying and releasing the vacuum, for “5 minutes a day for the first week, 10 minutes a day the second week, 15 minutes a day the third week and 20 minutes a day from there on.  Alternate from one breast to the other every 5 minutes.”  (Dept. Exhibit B-8-B)

b.  Falsity of the Representation and Fraudulent Intent

            The only competent evidence to prove the efficacy of the device in question is the testimony of experts giving their opinions.  In other words, a fact finding tribunal is to rely upon informed medical judgment which constitutes reliable, probative and substantial evidence.  Reilly v. Pinkus, 338 U.S. 269; Moxie Nerve Food Co. v. Holland, 141 F. 202; Shaw v. Duncan, 194 F.(2d) 779; Charles of the Ritz Dist. v. F.T.C., supra.  It is well settled that testimony of lay users though there is no doubt that they sincerely and honestly believe that they receive benefits from the use of the device as the lay users herein so testified, it is considered only of slight or trifling value.  This is so because “the nature of the simplest disease is so obscure to a layman that his conclusions touching what will benefit it and what will not benefit it mean little.”  United States v. 50 3/4 Dozen Bottles, etc., 54 Fed. supp. 759, 762.

            Since the testimony of the doctors, who are well qualified to give expert testimony regarding the issues in this proceeding, that is, their testimony represents informed medical opinion, is clear, and, of course, uncontradicted standing unchallenged in this record and nowhere is there any appearance of contradictions despite intense cross-examination, lengthy discussion of the various medical facts applicable to this case, are totally unnecessary.

            One of the two doctors had become familiar during his association with the Food and Drug Administration, with a  number of similar devices operating on the same principles and advocated for the same use, several of which he had tested (Tr. 131, 132, 163, 167).  His testimony clearly shows that the device is worthless for the purpose for which it is sold.  The testimony of the other medical witness also shows that it is absolutely of no value for such purpose.  By using the device there would result merely a temporary swelling of the breast for not more than a few hours because of increased blood circulation through the tissues (Tr. 39, 40, 42, 51).  the medical testimony also shows that the use of the device could be dangerous in regard to incipient cancer in the breast where too much pressure is applied or where it is used too long, and that such a disease cannot be diagnosed by the lay person but can be detected only through certain laboratory tests.  Such a cancer, if present, would be increased by the use of this device in the manner stated (Tr. 55-60).

            Therefore, measured by the medical testimony in this record I find that the device is worthless for producing the claimed results and is unsafe for use by any female user.  Accordingly, I find not only that the representations made by the Respondent as above stated, are false but that they are fraudulent misrepresentations.  Obviously they are material representations, that is, those upon which women eager to obtain the promised results are entitled to rely.

            I further find that these representations were made with intent to deceive, an essential element for the enforcement of the invoked statutes.  Intent to deceive, an essential element for the enforcement of the invoked statutes.  Intent to deceive may be inferred “from the universality of scientific belief that advertising representations are wholly unsupportable.”  Reilly v. Pinkus, supra:

CONCLUSION OF LAW

            In view of the above findings of fact I conclude as supported by the above cited cases, that the Respondent in the sale of the device “Lady Ample”, through the mails, is conducting a scheme in violation of the invoked statutes as charged in the complaint.  Accordingly, there is attached hereto the appropriate order for execution by the Judicial Officer to suppress the fraudulent enterprise herein found.

Hearing Examiner

[1]   Upon request of the Hearing Examiner counsel for the Respondent was sworn as a witness for the giving of certain testimony (Tr. 125, 126).

[2] The Rules of Practice require that proposed findings must contain much more than such mere assertions.  See Rule 201.27(b).  Obviously counsel for Respondent’s proposed findings and conclusions fail to meet with the requirements of the Rules.