In the Matter of the Complaint That                         )
                                                                               )
BIJOU and                                                              )
BIJOU HOLLYWOOD STUDIOS                              )
                                                                               )
at                                                                            )
                                                                               )
Hollywood, California                                             ) P.O.D. Docket No. 2/241
                                                                               )
(hereinafter called Respondent), is                       )
engaged in conducting a scheme for                    )
obtaining money through the mails in                     )
violation of 39 U.S. Code 4005.                              )

APPEARANCES:
                                                                               H. Richard Hefner, Esq.
                                                                               Office of the General Counsel
                                                                               Post Office Department
                                                                               for the Complainant

                                                                               Daniel J. Culliton, Esq.
                                                                               Clark M. Hunter, Esq.
                                                                               548 South Spring Street
                                                                               Los Angeles, California
                                                                               for the Respondent

Bosone, Reva Beck

DEPARTMENTAL DECISION

The Respondent, Bijou and Bijou Hollywood Studios at Hollywood, California, has been charged with conducting a fraudulent scheme in violation of 39 U.S. Code 4005 ^1/ by obtaining remittances of money through the mails by means of false and fraudulent pretenses, representations, and promises. The Complainant alleges

(1) That public attention is attracted to said scheme by means of advertising matter distributed to the public and which is calculated and intended to induce readers thereof to remit money through the mails to Respondent. and further alleges under paragraph (3)

(3) That by means of the advertising matter mentioned in paragraph (2) and in similar matter, the Respondent represents to the public in substance and effect:

a. That the "Blitz Diet" is an effective method for overcoming, treating and/or curing obesity;

b. That the "Blitz Diet" will enable any obese person to lose 5 pounds of body weight "overnight";

c. That the "Blitz Diet" is the result of scientific research and is based upon scientifically sound and proven principles and

(4) That said representations are false and fraudulent.

The Respondent's request for the hearing of the matter to take place in Los Angeles, California, was granted by the Hearing Examiner who set the date for November 29, 1966. Counsel for the Respondent wrote a letter to the Counsel for the Post Office Department in which he said he would be involved in trials through March of 1967. On November 22, 1966, Counsel for the Respondent wrote another letter to Counsel for the Post Office Department in which he said that the hearing would conflict with his attendance at a court trial. On November 23, 1966, the Hearing Examiner sent a telegram to Counsel for Respondent saying the case "would be called for hearing at 10:00 a.m., Tuesday, November 29, 1966." Mr. Clark M. Hunter appeared at the hearing and substituted for Counsel for the Respondent and asked that the case be continued since the attorney of record, Mr. Daniel J. Culliton, was in court trying a case. The Hearing Examiner denied the motion. The Respondent charges in his brief that the Hearing Examiner was arbitrary, capricious, etc.

Surely an implied request for the hearing to be set after March of 1967 was an unreasonable one. The Respondent had 22 days' notice of the hearing. Mr. Hunter did an excellent job in the absence of Mr. Culliton who was at the hearing for the afternoon session. Reviewing the record and the transcript it cannot be said that the Hearing Examiner in not granting a delay was arbitrary and prevent Respondent from having a fair trial.

In Respondent's answer to the Complaint he admits "he has advertised his Blitz Diet as exemplied by the exhibits" attached to the Complaint. Falsity of the representations in the ads and intent to falsify are denied.

The law is well established, and Counsel for the Respondent and Counsel for the Post Office Department have cited it, that "an ad is interpreted to mean what the average reader thinks it means--what the average person understands when reading the ad or the circular as a whole"--that the "arrangement of the words may create an appearance which is false and deceptive." "The ultimate impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied." "The law is not made for experts but to protect the public--that vast multitude which includes the ignorant, the unthinking and the credulous, who, in making purchases, do not stop to analyze but too often are governed by the appearance and general impressions."--Jeffries v. Olesen, 121 F.Supp. 463 (1954); Linden v. U.S., 254 F.2d 560 (1958); Aronberg v. Federal Trade Commission, 132 F.2d 165 (1942).

Since both expert witnesses, Dr. Ernst John Drenick for the Complainant, and Dr. Donald Cass for the Respondent, agreed that 5 pounds could be lost overnight, the Hearing Examiner dismissed paragraph (3) b of the complaint and sustained the other allegations.

Dr. Drenick who testified for the Complainant is pre-eminently qualified in his field as an expert. He stated that the 5-pound loss of weight overnight is a loss of water and not a loss of fat. Counsel for the Respondent maintains that this is all that the pre-sale literature advertises--a loss of 5 pounds of weight overnight. But I believe the average reader would understand the pre-sale literature to mean a loss of fat and a reading of the pre-sale literature proves this. Dr. Drenick maintained that a diet of two steaks and a pound of Swiss cheese is not a fat free diet that "The diet described in this pamphlet contains a very sizable amount of fat. Therefore, the protein contained in it would not cause any kind of metabolism of body fat if an adequate caloric supply exists. I might add that these findings are universally agreed upon in every textbook in every country. There is nothing new about it. The experiments are uniformly the same regardless of in what country the experiments have been carried out."--Tr. 33. Mr. Hunter made a motion to strike the foregoing testimony but withdrew it later.--Tr. 35. Dr. Drenick referred to textbooks but said he had not read all of the articles published on diet.

Dr. Donald Cass, a general practitioner, was called by the Respondent to testify. He is an excellent doctor but not a specialist in the field in which this case is involved. The testimony of Dr. Cass--Tr. 90--seems to agree with Dr. Drenick that it is the number of calories ingested that are significant in whether a person loses or gains weight. Dr. Cass said he thought the diet was a good one but he went on to say, "I would say that if you stayed on that diet very long it wouldn't be good, because the fat would not be completely oxidized, and you would get an oxidosis, but on the other hand, the use of it for one day wouldn't do any harm."--Tr. 84-85.

The other witnesses for the Respondent were E. J. Bernauer, the owner of the subject matter, his daughter, and Felicitas Wall, a friend of his. Mr. Bernauer, who testified that he gained his information from "sports people"--not scientists or doctors--, prepared all the literature that was used in the sale of his product. His testimony showed he knew just what his product would do, yet his pre-sale literature conveys and represents a diet that far exceeds what he knew it would do. Hyperbole is to be expected but when that hyperbole becomes a complete misrepresentation, then the Respondent has the intent to misrepresent. Stone v. U.S., 113 F.2d 70 (1940); Darnell v. Darnell, 200 F.2d 747 (1952).

In reading Respondent's pre-sale advertisement I believe the average reader would understand that the weight loss would be a 5-pound loss of fat. It is unlikely he would think of anything like a water loss. With all the advice of doctors against obesity and all the appeals to reducing one's weight, I am sure the concern is with fat and that this pre-sale literature would mean that to the average reader.

It seems to me it is not unreasonable for the average reader to interpret the pre-sale advertisement of the Blitz Diet as a diet that is capable of "overcoming, treating and/or curing obesity"--Complaint (3) a; for example, the third paragraph of the pre-sale advertisement reads "...until you have reduced your weight to the level of your choice." True, the word "obese" is not used in this advertisement but it is in the mind of the reader as it was in the minds of Counsel for the Complainant and Counsel for the Respondent as they both used it frequently in the hearing.

The pre-sale advertisement (paragraph 3) definitely gives the idea that one can attain the weight he wishes in a short time yet the testimony shows that he should not repeat the overnight diet more than every 3 or 4 weeks. According to Respondent's witness, Dr. Cass, it would not be good to stay very long on this diet. Respondent's Counsel argues in Exception V that this number of weeks is a "relatively short interval." The title of the diet is "Blitz." I believe that one can take judicial notice of the meaning of "Blitz"--that it means a suddenness--a disaster. The connotation certainly is not that of slowness but of high speed and I do not believe that "3 or 4 weeks" is a relatively short interval considering such a descriptive word as "Blitz."

The testimony shows there is no basis for the statement made in paragraph 8 of Respondent's pre-sale advertisement where it says, "Based on knowledge gained in the course of biological research and science's probing into nature's own ingenious way of disposing of body fats, your blitz-diet goes to work on your overweight immediately and finishes the job after you have retired for the night and are fast asleep." The advertisement refers to "body fats" so the natural interpretation of the ad is that what weight is lost is fat and this according to the testimony does not happen with the "Blitz Diet."

The statement that if there is dissatisfaction with the advertised product a refund will be made may be a proper matter for consideration, but where the advertisement taken as a whole misrepresents the seller's product, the refund offer does not change the falsity.

The weight of the evidence in this case shows that the representations as alleged are false and to such an extent as to constitute fraud. Reilly v. Pinkus, 338 U.S. 269.

The Respondent's Exceptions are denied and the decision of the Hearing Examiner is affirmed. A fraud order is hereby issued.

1/ Sec. 4005. Fraudulent and lottery matter

(a) Upon evidence satisfactory to the Postmaster General that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false or fraudulent pretenses, representations, or promises; or engaged in conducting a lottery, gift enterprise, or scheme for the distribution of money or of real or personal property by lottery, chance, or drawing of any kind; the Postmaster General may--

    (1) direct postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representative, to return the registered letters or other letters or mail to the sender marked "fraudulent" or "lottery mail"; and

    (2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes.

(b) The public advertisement by a person engaged in activities covered by subsection (a) of this section, that remittances may be made by mail to a person named in the advertisement, is prima facie evidence that the latter is the agent or representative of the advertiser for the receipt of remittances on behalf of the advertiser. The Postmaster General is not precluded from ascertaining the existence of the agency in any other legal way satisfactory to him.

(c) As used in this section and section 4006 of this title the term "representative" includes an agent or representative acting as an individual or as a firm, bank, corporation, or association of any kind.