In the Matter of the Complaint Against

NATIONAL HEALTH at
Los Angeles, California
(hereinafter called Respondent),

is engaged in conducting a scheme for obtaining money through
the mails in violation of 39 U.S. Code 4005

P.O.D. Docket No. 2/271;

APPEARANCES:

Arthur S. Cahn, Esq.;
Office of the General Counsel,
Post Office Department for the Complainant

Edwin M. Rosendahl. Esq.;
9777 Wilshire Boulevard,
Beverly Hills, California for the Respondent

DEPARTMENTAL DECISION

The Respondent, National Health, filed a timely appeal from the Initial Decision in which the issuance of a fraud order was recommended. The Respondent has been engaged in the sale of an exercise plan for use by women to increase their bustlines. It is concluded herein that the issuance of a fraud order is warranted.

The Complainant, the General Counsel for the Post Office Department, charged that in the conduct of its business the Respondent was engaged in a scheme of the type proscribed by Section 4005 of Title 39, U. S. Code. ^1/

In support of the appeal, Respondent excepts to all or part of Findings of Fact Numbered 3, 5, 7, 8 and 9 and to all of the Conclusions of Law set forth in the Initial Decision. Aside from the overall arguments that the Findings and Conclusions are not supported by evidence adduced at the hearing, Respondent assigns the following matters as error:

(1) The holding in the Initial Decision that the terms "breasts" on the one hand and "bustline" on the other are synonymous or equivalent; and

(2) The record is devoid of any evidence of "intent to deceive" on the part of the Respondent.

Exception Number One

It undoubtedly is true that to a physiologist, an anatomist or a physician in others of the specialties such as orthopedics or plastic surgery, the word "breasts", when thoughtfully considered in the context of this case, would mean the female mammary glands. It is also true that the word "bustline", when weighed in the same manner by medical persons, would mean, in substance, as indicated by Dr. Schumann, ^2/ "***a circumferential measurement of the torso at the level of the bust."

The advertising matter of the Respondent, however, is not directed at only those people who are technically trained and by whom these distinctions are made. The validity of this statemen tis indicated by the fact that advertisements were placed in such publications, among others, as "Screen Stories", "Confessions", and "Hair Styling" (Exhibits G-1, G-2(A) and G-5). As the Court said in G. J. Howard Company v. Cassidy, (1957) 157 Fed. Supp. 297, 299:

"Since the applicable test is the effect that the advertisement would be expected to produce on ordinary minds, meaning those of the majority of the community to whom it is addressed, it is not necessary to indulge in an acute analysis of possible meanings that might be attributed to certain somewhat obscure allusions discoverable by critical study of the plaintiff's printed solicitation."

Respondent's first exception is disallowed.

Exception Number Two

The record indicates that prior to initiating the enterprise known as National Health, Lee Rogers, the owner, consulted with Dr. Clarence B. Levine, M.D. Dr. Levine, testifying as a witness in behalf of the Respondent, said that he prepared a booklet describing certain exercises which, if followed, probably will result in some enlargement of the pectoralis major, a muscle on which the breasts rest (this booklet is Exhibit G-4).

The Complainant's medical expert, Dr. William Robert Schumann, M.D. to whom reference has heretofore been made, said that there is nothing in this booklet with which, from a medical standpoint, he would quarrel or disagree so long as the reader bears in mind the fact that the booklet's author uses the term "bustline" to mean a "circumferential parameter of the torso at the breast level." Dr. Schumann (Tr. 42) and Dr. Levine (Tr. 97) were in complete agreement that the exercises would not produce any increase in the size of the breasts (mammary glands). ^3/

In the instant proceeding the complaint was not directed at the product sold by the Respondent. The Complainant charged the Respondent with engaging in a fraud scheme on the basis of what the Respondent said about its product. The Respondent's representations are attacked and not the Respondent's merchandise. If the Respondent had clearly represented to the public that all that would be accomplished by following the exercises as directed would be the hypertrophy or enlargement of the pectoral muscles, presumably no complaint would have been lodged against the Respondent, since the testimony indicates that such enlargement will be produced. It previously has been found, however, that to the average lay reader the terms "breasts" and "bustline" have the same connotation. The Respondent in his advertising matter represents that by the use of his system women may "have a lovelier, firmer, more exciting bustline]" The doctor to whom Lee Rogers turned for advice did not write the advertisement, and the doctor testified (Tr. 98), contrary to the testimony of Lee Rogers (Tr. 125), that he was not asked to approve the advertisement.

Since the Respondent is not expert in the female anatomy and the effect of exercise on it, he owed to his prospective purchasers the duty of going to the best qualified authorities he could find on the subject and the duty of insuring that the claims made for his exercise plan did not exceed the results that could be achieved by following his exercise plan. Not to do so indicative of a disregard for what the truth in this area might be (Corliss v. U.S., 7 F.2d 455-456, 1925).

Respondent strenuously objects to the making of any reference to a discontinued enterprise known as "S. I. Research", a concern formerly operated by Lee Rogers which also employed the mails in the sale of information related to increasing the size of the female "bustline." It is not significant, insofar as the present proceeding is concerned, that Lee Rogers, in the name of "S. I. Research", executed compromise agreements on the basis of which proceedings before the Federal Trade Commission and a proceeding before this Department were settled. What is highly significant about that business undertaking is that Lee Rogers, in advertising matter used to promote the business of "S. I. Research," said, among other things:

"DON'T WASTE hard-earned money on schemes, exercises and so-called remedies that do not work."

The making of such a statement clearly bears on the question of the intent of a person who later enters the field of selling exercises represented to be effective in increasing the "bustline". The intent to deceive by one who within such a short span of time engages in mail-order business based on such diametrically opposed representations is not difficult to discern.

The second exception is disallowed.

I have reviewed the entire record of this proceeding. Based upon this review, all other exceptions assigned by the Respondent are denied and I find that the evidence supports the findings and conclusions set forth in the Initial Decision.

Proposed findings of fact and conclusions of law submitted by the parties have been considered and they are adopted to the extent herein indicated. Otherwise, such proposed findings of fact and conclusions of law are denied for reasons given herein, or because of their immateriality, or because they are contrary to the evidence.

A fraud order will issue.

William A. Duvall
Acting Judicial Officer

APPENDIX "A"

Similarity of testimony of medical experts in the Matter of Mark Eden, P.O.D. Docket No. 2/204 and in the Matter of National Health, P.O.D. Docket No. 2/271.

I. Testimony on the nearly complete absence of literature on the effect of exercise on bust development.

A. Mark Eden

1. For the Complainant

a. Ralph W. Weilerstein (Tr. 125):

"I attempted to check the medical literature on the subject to see if there was anything written that would either support or detract from the position which I felt was correct and the only reference that I was able to locate was the one which I have previously cited, which is from the Journal of the American Medical Association, of November 11, 1961, page 689."

2. For the Respondent

a. Henry James Ralston, Ph.D. (Tr. 248):

"There are no definitive studies in the scientific literature that I know of which the effect of exercise involving the pectoral muscles upon the bustline are (sic) described. I know of no definitive studies."

b. Laurence Kinsell, M.D. (Tr. 594):

"To the best of my knowledge there is no reliable meaningful information in this area as to the effect of exercising the pectoralis muscles on storage of fat in the breast ."

c. John Robert Close, M.D. (Tr. 696):

"I don't know of any medical literature on the subject of the effect on the mammary gland from exercise of the pectoralis muscles ."

B. National Health

1. For the Complainant

a. William Robert Schumann, M.D. (Tr. 39):

Q: "Doctor, do you know of any scientific or medical opinion which supports this theory of using exercise to develop breasts or busts?

A: "No, sir."

* * * * *

Q: "Do you know of any evidence, medically reliable evidence, to show that exercise can never increase the size of the female bust?

The Witness: "No. I have no such evidence."

II. Testimony in regard to the fact that the tendency toward small breasts is hereditary.

A. Mark Eden

1. For the Complainant

a. Ralph W. Weilerstein, M.D. (Tr. 100-101):

"***However, in the simplest terms, the ovarian activity from the standpoint of the ovary as a gland of internal secretion is really what determines whether or not a breast will develop and is the difference between a woman before puberty and a woman after puberty.

Q: "Is this ever an inherited trait?

A: "Yes. It is often an inherited trait. Very often the tendency toward breasts of one size or another is inherited, not only as an individual characteristic but is well known to be even a racial characteristic, and there are certain races where the women are known to generally have large breasts, and there are others where generally the breasts are smaller."

* * * * * *

Q: "What about the contour of the breasts? Is this or is this not an inherited trait?

A: "The contour of the breast is inherited within limits. That is, this can be controlled to a certain extent by diet, by the amount of fat, that a woman who will overeat may have more fat in her breasts than a woman who does not, but within the limits of the amount of fat that is present in the breasts, which is part of the general body distribution of fat, this can to some extent affect contour, but beyond this there is -- the contour is generally an inherited characteristic."

The other medical doctors who testified in the Mark Eden case are not interrogated on this point.

B. National Health

1. For the Complainant

a. William Robert Schumann, M.D. (Tr. 31):

"I would think it would probably be fair, and this is purely an estimate, to say that 95 to 98 percent of all small breasts are due to inherited genetic predisposition."

b. Clarence B. Levine, M.D. (Tr. 79):

Q: "***Do you Dr. Levine agree with Dr. Schumann's estimate that in the cases of underdeveloped breasts that 95 to 98 percent of the cases are of genetic origin?

A: "Yes."

III. Testimony to the effect that certain exercise will increase the size of the pectoral muscles but that exercise will not increase the size of the breasts.

A. Mark Eden

1. For the Complainant

a. Ralph W. Weilerstein (Tr. 112-113):

"***there is no muscle in the breasts which can be exercised by this device when used according to direction which could become enlarged by reason of exercise.

"The only parts of the body that develop through exercise are muscular parts of the body, and since there is no muscle in the breast itself except, as later pointed out by Dr. Weilerstein, for some smooth muscles in the nipple area which also would not be affected by exercise it is impossible for a breast to develop by reason of exercise of the underlying tissues."

2. For the Respondent

a. Henry James Ralston, Ph.D., Physiologist, (Tr. pages as indicated):

Q: "Would you expect to increase the bulk or mass of the pectorals?

A: "Yes. Usually, when an exercise of this type if performed, it will show up in the increase of the bulk of the muscle." (Tr. 258)

* * * * * *

Q: "Doctor, based on your research and investigation, I take it you are not in a position to testify that any exercise would make a change in the breast itself?

A: "There is no evidence, as I say, which would allow one to make a decision on this question." (Tr. 313)

* * * * * *

Q: "On the basis of observation, have you ever seen any instances where the size of a female breast has been changed as a result of the exercise of a pectoral muscle?

A: "No, sir." (Tr. 299-300).

b. John Robert Close, M.D. (Tr. 698-699):

Q: "***now, do you have an opinion as to whether or not the bust-developer and course which you have just examined would have an effect upon the bustline of a woman who followed the instructions there?"

* * * * * *

A: "I believe there would be enlargement of most of the structures concerned. I believe there would be increased diameter -- increased circumference, that is, on the bustline, and other parts of the chest.

Q: "Why do you think that?

A: "I believe that because of the hypertrophy or increase in size of muscle.

Q: "Which muscle?

A: "Muscle fibers. Several, especially the pectoral musculature, sir, which this device is ideally equipped to exercise in the isometric position or length, I should say, isometric state, and it also involves just before the isometric state is reached, an isotonic period when the muscle can change length, but it can be held in a position which requires the pectoralis muscles to be at isometric tension, and considerable tension for quite a long -- for any pre-determined period."

B. National Health

1. For the Complainant

a. William Robert Schumann, M.D. (Tr. 40-41):

Q: "Counsel stipulated that this doctor has already given his opinion that exercise will not increase the size of the female bust. Do you want to confirm that, doctor?

A: "Yes, sir."

* * * * *

Q: "Doctor, what effect, if any, would there be on a woman's bust or breast by developing her pectoralis major muscle?

A: "I know of no effect on the breast."

2. For the Respondent

a. Clarence B. Levine, M.D. (Tr. 88, 97):

Q: "And in respect to that area, I take if you are in agreement with him Dr. Schumann , that the mammary glands and the fatty tissue above the level of the fascia would not be moved in content or size by reason of the exercise; right?

A: "Yes."

* * * * *

The witness: "Well, one would certainly emphasize that what we are trying to do is increase the size of the pectoralis muscles.

Q: "And, conversely, that the breast itself would not be increased?

A: "That the exercises would do nothing to the breast tissue itself."

04/24/68

1/ The statute, 39 U.S. Code 4005, reads so far as here pertinent:

"Upon evidence satisfactory to the Postmaster General that any person is engaged in conducting a scheme or device for obtaining money *** through the mail by means of *** fraudulent *** representations ***; the Postmaster General may--

(1) direct postmaster 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' ***; 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.

2/ William Robert Schumann, M.D., an expert medical witness called by the Complainant.

3/ Numerous references have been made for one or more reasons throughout this proceeding to the Matter of Mark Eden, P.O.D. Docket No. 2/204. Because of these references and because of the fact that the Mark Eden case and the present one involve the field of bust development, it is of interest to note that on the subject of the effect of exercise on the size of the female breast, and on related subjects, the medical experts in Mark Eden were in agreement with each other, on the one hand, and with the medical experts in this case, on the other hand. The attached Appendix "A" amply serves to demonstrate this fact. Appendices B and C are, respectively, examples of (1) the advertising matter used by Mark Eden at the time of the filing of the Complaint in that case and (2) the advertising copy used by National Health at the time of the filing of the Complaint herein. In the March 1966 Mark Eden Initial Decision it was held that while "several of the Respondent's representations tend to raise doubt concerning the complete good faith of the Respondent corporation and those in control, the essential requirements for a fraud order *** have not been adequately proven and the remedy sought should be denied." (Mark Eden, Initial Decision dated March 22, 1966, p. 21, reversed by Departmental Decision dated November 4, 1966.)

In the instant proceeding the complaint was not directed at the product sold by the Respondent. The Complainant charged the Respondent with engaging in a fraud scheme on the basis of what the Respondent said about its product. The Respondent's representations are attacked and not the Respondent's merchandise. If the Respondent had clearly represented to the public that all that would be accomplished by following the exercises as directed would be the hypertrophy or enlargement of the pectoral muscles, presumably no complaint would have been lodged against the Respondent, since the testimony indicates that such enlargement will be produced. It previously has been found, however, that to the average lay reader the terms "breasts" and "bustline" have the same connotation. The Respondent in his advertising matter represents that by the use of his system women may "have a lovelier, firmer, more exciting bustline]" The doctor to whom Lee Rogers turned for advice did not write the advertisement, and the doctor testified (Tr. 98), contrary to the testimony of Lee Rogers (Tr. 125), that he was not asked to approve the advertisement.

Since the Respondent is not expert in the female anatomy and the effect of exercise on it, he owed to his prospective purchasers the duty of going to the best qualified authorities he could find on the subject and the duty of insuring that the claims made for his exercise plan did not exceed the results that could be achieved by following his exercise plan. Not to do so indicative of a disregard for what the truth in this area might be (Corliss v. U.S., 7 F.2d 455-456, 1925).

Respondent strenuously objects to the making of any reference to a discontinued enterprise known as "S. I. Research", a concern