In the Matter of the Complaint That

THE ALVIN CO.,
at
New York, New York,

Is engaged in conducting a scheme for Obtaining money through the mails in Violation of 39 U. S. Code 259 and 732.

P.S. Docket No. 1/42

ORAL INITIAL DECISION OF HEARING EXAMINER

            The following is my oral initial decision as permitted by Rule 201.28 (a).

            The complaint duly served upon the respondent and answered, charges that the respondent, The Alvin Company, is violating 39 U. S. Code259 and 732 by obtaining sums of money through the mails by means of false and fraudulent representations in that respondent through advertising matter represents to the public "That any woman who has too much tummy and uses the said Magic Button as directed will see the inches disappear instantly," that the said Magic Button is a device which reduces the waist line and erases unbecoming inches from the abdomen, midriff, and hips, that is to say eliminates the excess inches and that any woman who has too much tummy and unbecoming inches on her abdomen, midriff, and hips will secure a decrease in the size and improvement in the contours of her body to the extent depicted in the picture appearing in respondent's advertisement.  Respondent has denied making these representations, and the hearing was held this date in which testimony was adduced by the production by the complainant of a medical expert, Dr. Campbell, and the advertisement received in evidence by stipulation.

            The respondent offered no proof.  The burden, of course, is upon the complainant.

            The following are my findings of fact:

            In determining the meaning of the representations  made by the respondent in his advertisement, which is in evidence as Department Exhibit --

            MR. AGUE:    1-A.

            EXAMINER CARLICK: May I ask that I have no interruptions or the record will be in bad shape.  If I make some misstatement of some sort that will have to be handled properly.

            -- as Department Exhibit 1-A, which is an advertisement that appeared in a periodical called "Glamour," April, 1958, issue.  This determination is made, as I stated, by examining the advertisement and it is settled that this issue is determined by the effect it will most probably produce on ordinary minds.  Donaldson v. Read Magazine, 333 U. S. 178, "Representations made expressly, or gathered from the whole tenor or partially so, from the entire language used, and may consist of implications reasonably derived by the reader therefrom" Stunz v. U. S., 27 Fed.(2d) 575, Barnhill v. U. S., 95 Fed.(2d) 116, and "Advertisements as a whole may be completely misleading although every sentence separately considered is literally true.  This may be because things are omitted that should be said or because advertisements are composed or purposefully printed in such way as to mislead."

            And again I would also like to cite the Florence Manufacturing Company v. J. C. Dowd & Company case reported in 178 Fed.(2d) 73, at page 75, "The law is not made for the protection of experts but for the public, the vast bulk of which includes the ignorant, unthinking, and the credulous who in making purchases do not stop to analyze but are governed by appearances and general impressions."

            Applying these guides, I make the ultimate determination and finding that respondent is representing and making the claims charged in the complaint.  It appears clear that the ordinary person, that is, the reader who is interested in this device, that is the woman, the obese woman, in reading this advertisement would come to the conclusion that this device, when used as directed, will eliminate excess inches from various portions of her body.  The manner in which the advertisement is worded, the emphasis placed on the various statements, and it is noted that the Magic Button is emphasized.  It states clearly that inches will disappear instantly, and that within 10 days a person, that is a woman, will obtain what is known today as a glamorous figure.

            As to the falsity of the representations, from the evidence in this case it is clear hat the representations are entirely false, and in the Reilly v. Pinkus case, 338 U. S. 269, it was held that testimony as given here by the medical expert may be relied upon as substantial evidence.  The doctor testified in substance that this device, which is merely an elastic band of about two inches in width to encircle the waist of the user, and which has on it in the center a fluffy ornament, so to speak, for descriptive purposes, will not be effective whatsoever when used as directed in the directions as understood from the testimony of the doctor, and as I have examined the booklet sets forth exercises called first day posture exercises, and likewise for the various other days, various positions to be used and taken by the user, and this device merely will improve psychologically, to that extent, the posture of the user.  Otherwise, it is entirely ineffective for the purposes for which this device is sold.

            I further find as required in this kind of case that the representations were made with intent to deceive.  My finding is based on the fact that the testimony shows that it is the universality of scientific belief that the advertising representations are wholly unsupportable, and I cite in support of that the Reilly v. Pinkus case, supra.

            I therefore recommend as required by the rules that the usual order and customary order used by the Department be issued against the respondent denying the use of the mails in the manner prescribed in the order, and as provided by statute.

            I will furnish to the parties a copy of the fraud order which I will recommend after this hearing is closed.  The order will show of itself but for the purpose of this decision it is in blank to the extent that only the respondent's name be inserted and address, of course.

            That is my initial decision.

            As taken from pages 25-A-29 of the Official Transcript of Proceedings.

                                                                        Edward Carlick
                                                                        Hearing Examiner