In the Matter of the Complaint Against

SAUNA BELT, INC., and
P. O. Box 3984 at
San Francisco, California 94119

P.O.D. Docket No. 3/43

January 20, 1971

William A. Duvall Chief Hearing Examiner

APPEARANCES:
H. Richard Hefner, Esq.
Thomas A. Ziebarth, Esq.
Daniel S. Greenberg, Esq.
Office of the General Counsel
Post Office Department
Washington, D. C. 20260
for the Complainant

John F. Banker, Esq.
John F. Wells, Esq.
Nathan G. Gray, Esq.
Stark, Stewart, Simon &
Sparrowe Oakland, California 94612

Timothy J. May, Esq.
Patton, Blow, Verrill, Brand &
Boggs Washington,
D.C. 20036 for the Respondent

INITIAL DECISION OF HEARING EXAMINER

Biophysical Research and Development Corporation, San Francisco, California, doing business as Sauna Belt, Inc. (Respondent), is a California corporation owned and controlled by Mr. and Mrs. Jack Feather. The business of Respondent consists in the advertisement and sale through the mail of a device known as the Sauna Belt for use in conjunction with certain exercises to produce a reduction in the girth of the waistline and abdomen.

The General Counsel for the Post Office Department (Complainant) charges that the Respondent, in engaging in business as aforesaid, is conducting a scheme or device for obtaining money or property through the mails by means of false representations, an activity proscribed by the provisions of 39 U. S. Code 4005.^1/The complaint against the Respondent, in the form in which it was filed,

The pertinent portion of the statute under which this proceeding is brought reads as follows:

"(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 representations, *** the Postmaster General may issue an order which--

(1) directs any postmaster at an office at which registered or certified letters or other letters or mail arrive, addressed to such a person or to his representative, to return such letters or mail to the sender appropriately marked as in violation of this section, *** and;

(2) forbids 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 sum named in the money order or postal note." including Exhibits A and B thereto, is attached hereto as Attachment 1 to this decision.

At the hearing, on motion by Respondent's Counsel, and over objection of Complainant's Counsel, certain of the charges in the complaint were stricken because of their dubious materiality or because Respondent does not make the alleged representations. (Tr. 691-710) This ruling is reaffirmed. The remaining representations charged in the complaint as being false are, in substance, as follows (numbered as the charges are designated in paragraph 3 of the complaint):

(b) That the Sauna Belt, when used in conjunction with the exercises recommended by Respondent, will enable a person to achieve the following results:

(i) a loss of up to 3 inches from the user's waistline within 3 days;

(ii) a loss of 2 inches from the user's waistline and 1 1/2 inches from the tummy when worn "for about 30 minutes one afternoon";

(iii) a loss of "nearly 5 full inches" in the waistline when worn for a two-week period;

(iv) a loss from the waistline of as many inches as the user desires;

* * * * * * *

(g) That the attained desired girth may be retained merely "by using the belt about twice a month";

(h) That the Sauna Belt represents a "really new idea in slenderizing";

(i) That the "two magic waistline reducing exercises" to be used in conjunction with the Sauna Belt

(i) are new;

* * * * * *

(iii) are easily performed by any user, regard- less of his age, health, or physical condition;

(iv) may be safely performed by any user re- gardless of his age, health, or physical condition.

(j) That the Seated Toe Touch exercise of Respond- ent's Program A is safe for those with lower back problems.

In the Answer to the complaint, Respondent denies the making of the representations in the language and with the meaning stated in the complaint. Respondent denies the making of the representations in the language and with the meaning stated in the complaint. Respondent affirmatively alleges that (1) the following of its plan, as directed, and subject to individual variations, such as varying metabolic rates, can produce, and has produced, reductions in girth as represented in its advertisements and (2) it has no knowledge of any evidence or medical opinion that the use of the belt as directed creates any medically unacceptable risk.

It is the conclusion of the Hearing Examiner that there is insufficient evidence in the record to support the issuance of a remedial order under 39 U. S. Code 4005.

THE ISSUES

Broadly stated, the issues to be resolved are:

1. Does the Respondent make the representations attributed to it as set forth in the complaint?

2. If Respondent does make the representations as alleged in the complaint, are these representations false?

Based upon the entire record, consisting of the pleadings, the testimony of the witnesses, the exhibits and the post-hearing briefs and reply briefs submitted on behalf of both parties, I make the following --

FINDINGS OF FACT

A. Respondent's Plan^2/

1. The device sold by Respondent (Ex. C-3) consists of an inflatable plastic belt which the user fastens around his waist and inflates by blowing air into it through a valve at the end of a plastic tube. When the desired pressure is achieved, the user closes the valve to keep the air in the belt. There is one size belt (about 7 1/4" wide) to be worn by women and another, somewhat larger, size to be worn by men.

2. After the belt has been applied as indicated, the user begins the exercises. The first exercise is accomplished by learning forward to grasp the arms or back of a chair placed a foot or so in front of the user. As the person leans forward, he exhales as much air as possible from his lungs and, without inhaling, pulls in his abdomen as far as he can and then forces it out as far as he can. This is done five times without inhaling, after which the person stands erect and inhales. After several deep breaths, the foregoing process is repeated. The remaining exercises are more or less conventional exercises involving bending either forward or to the sides in efforts to touch the toes. One variation calls for the person to sit on a low seat and stretch forward toward the toes. Another exercise calls for the person to begin by lying on his back with his feet on a low seat. While in this position, the hips are raised from the floor so that the body forms a straight line from the heels to the shoulders, with only the shoulders, arms and hands touching the floor. The hips are lowered to the floor and the exercise is repeated as directed. The exercises and the manner in which one engages in them are described in detail in Exhibit B to Attachment 1 to this decision.

B. Respondent's Representations

3. Comparing the charges remaining in the complaint with the advertising material on which these charges are based,^3/it is found that Respondent does make all of these representations except the following:

3(b)(iv) -- that use of the belt and exercises as directed will produce "a loss from the waistline of as many inches as the user desires"; .

3(i)(iii) -- that the exercises to be used in

Respondent's plan "are easily performed by any user, regardless of his age, health or physical condition"; .

3(i)(iv) -- that the two magic waistline reducing exercises, used with the belt, may be safely performed by any user regardless of his age, health or physical condition.

4. In regard to the representation stated in 3(b)(iv), the advertising circular which is Exhibit A to the complaint explicitly states that the amount of girth a person loses "depends on your goals - how many inches you want to lose from your waistline and the rate at which your body responds. Each person's body make-up is different, therefore the degree of loss will vary with individuals." (Emphasis supplied) It is only after this rather elaborate preface that the statement is made, immediately following in the same paragraph - "It is recommended that you use the belt for a few minutes each day for 3 days in a row when you first get the belt and then about 2 or 3 times a week until you have lost as many inches as you desire." (Emphasis supplied) It strains credulity to insist that the average person would interpret these sentences, when read in context, to mean anything other than that repeated use of the belt as directed will produce any desired reduction in waistline within the limitations of one's own physical characteristics. Accordingly, it is found that the charged representation is not made by Respondent.

5. The representation alleged in 3(i)(iii) of the complaint is said (Tr. 707) to be based upon use in the advertising material of the word "magic" to describe the exercises and upon the statement that the exercises can be performed in "just a few minutes." Not only does the alleged representation not flow from these quotations, but, as an additional factor, the advertisement specifically states that "This inflated belt is specially designed to provide resistance to the movements ***." Furthermore, the very necessity of doing exercises, which is made clear in Respondent's advertising, is an indication to persons with debilitating diseases or conditions of which they are aware that (1) the performing of the exercises will require the exertion of varying degrees of effort, and (2) some of the activity required of them may test or exceed their capacities. The foregoing statement is particularly true when the great breadth of the charge is recognized, namely, that any person, regardless of his age, health, and physical condition, will find this plan easy to follow. This charge includes within its sweep terminal cancer patients lying in hospital beds, octogenarians sitting out their days in convalescent homes, football players in casts as a result of injuries received in last season's games. These are extreme illustrations, but the language of the complaint is extreme. It may be that the Respondent represents that the following of its plan will not present any undue difficulty for the average person who wants to decrease the girth of his waistline, but, the Respondent's advertisement does not contain the all-encompassing representation set forth in the language of the complaint.

6. The remarks made above in regard to the charge concerning the ease of following Respondent's plan are applicable to a considerable degree to the charge regarding the safety of following Respondent's plan. On the safety feature, also, it might be fair to interpret Respondent's advertising matter as representing that for the average individual, no undue health hazard will be undertaken by following the plan. This interpretation, however, is far short of the interpretation embodied in charge 3(i)(iv), and that representation as stated in the complaint is not made.

7. In regard to the other representations previously listed as remaining in the complaint, except as noted below in connection with representation 3(j), when the statements in the advertising material on which the complaint is based are reasonably construed, those statements do lead to the understanding expressed in the charges set forth in the complaint. Most of these representations which remain charged as being false are taken verbatim from the language in Appendix A to the complaint. These representations fall into one of three categories, namely:

a. the newness of Respondent's plan (representations 3(h) and 3(i)(i));

b. the safety with which the average individual may follow Respondent's plan, including the narrower representations suggested above in Findings of Fact numbers 5 and 6, and the representation alleged in paragraph 3(j) of the complaint which will be discussed in more detail in Finding of Fact number 8, below; and

c. the efficacy of Respondent's plan (representations 3(b)(i) - (iii) and 3(g)).

8. The representation alleged in charged 3(j) is unusual in that it is based on the following statement in the sheet of instructions (Exhibit B to Attachment 1) telling users how to follow Program B of Respondent's plan:

"If you have any lower back problems or experience any difficulty doing the Regular Toe Touch, you can substitute the Seated Toe Touch of Program A for it, doing 2 groups of 100 Seated Toe Touches in place of the 2 groups of 50 Regular Toe Touches."

At the outset, it should be noted that this statement appears in literature received after the product has been ordered and received, so there is a serious doubt as to whether it can be said to be an inducement to make the purchase. It is a suggestion for use of that which has been purchased. If, however, one disregards this substantial question, the quoted statement about the substitution of the Seated Toe Touches for the Regular Toe Touches may be construed to mean that persons with certain types of lower back conditions may be more comfortable and safe doing the Seated Toe Touches than they are while doing the Regular Toe Touches.

C. The Truth or Falsity of Respondent's Representations The Newness of Respondent's Plan

9. There is no need to spend a great deal of time discussing the representations regarding the newness of Respondent's plan. The sauna principle has long been known in Europe and in parts of this country, and the exercises advocated are likewise not new. However, the employment of the sauna principle in the form of Respondent's belt and the combining of this belt with the exercises do comprise a new application of these ideas. Therefore, assuming, without deciding, that the representations stated in charges 3(h) and 3(i)(i) of the complaint are material, these representations are true. (Tr. 735-752)

The Safety Question

10. Complainant called two witnesses to testify concerning the health risks involved in following Respondent's plan. One witness was Ralph W. Weilerstein, M.D., a medical officer of the Bureau of Drugs of the Food and Drug Administration, an Associate Clinical Professor of Medicine at the University of California Medical School in San Francisco in the Department of Internal Medicine, and a practitioner in the field of internal medicine.

11. Dr. Weilerstein's expert opinions as revealed by his testimony may be summarized as follows. There are several conditions in which the following of Respondent's plan is contra- indicated because of the risk of injury to the user. These conditions include: intervertebral ruptured disc; spondylolisthesis (a forward displacement of one vertebrae upon another in the lower spine); pelvic inflammatory disease; tubal pregnancy; ovarian carcinoma; myocardial insufficiency (insufficiency or breakdown of the heart muscle); arrhythmia (variation from normal heart beat); hypertension; venous insufficiency (an edematous condition of the lower extremities due to stasis of the venous blood flow (Tr. 222); any inflammatory condition within the abdominal area such as colitis, diverticulitis, appendicitis and any inflammation that would affect any organ in the abdominal area; and hernia. Persons could have any of the foregoing abnormalities or diseases without being aware of their presence. If such a person engages in the Respondent's plan, he could injure himself to the extent that there would be increased symptoms or disability which might require surgical intervention, bed rest or medical care, or, presumably, all of them. (Tr. 207-224) Except for arrhythmia, which could be caused by participation in the plan, the conditions enumerated and described would not be brought on or caused by Respondent's plan. However, these conditions, if present, could be aggravated by various parts, or all, of the plan. (Tr. 267, 270)

12. The Complainant also produced Dr. Sedgwick Mead, who is certified by the Board of Physical Medicine and Rehabilitation and is an Associate Clinical Professor of Physical Medicine and Rehabilitation at the University of California, at Davis, California. Except as to the frequency with which certain types of injuries might occur, Dr. Mead concurred to a very large extent with Dr. Weilerstein's testimony. (Tr. 410)

13. The following witnesses were called by Respondent to give expert medical testimony in regard to the safety question: Henry James Ralston, Ph.D., Professor of Physiology in the University of the Pacific and a research physiologist in the Biomechanics Laboratory at the University of California; John Robert Close, M.D., Diplomate of the American Board of Orthopedic Surgery and Director of Medical Research at Orthopedic Hospital, Los Angeles; Charles A. Webster, M.D., Diplomate of the American Board of Internal Medicine certified in the sub-specialty of cardiology, private practitioner, teacher at Highland Alemany County Hospital and at the University of California; and John A Linfoot, M.D., an internist with sub-specialty in endocrine and metabolic disease, director of the Donner Laboratory, the Radiation Laboratory at the University of California, and director of the Bay Reference (diagnostic) Laboratory, Lafayette, California.

14. In regard to the strenuousness of Respondent's plan, Dr. Ralston, the research physiologist, administered certain tests developed during a study done for the Vocational Rehabilitation Administration, an agency of the United States Government, to determine the amount of effort involved in a particular kind of physical activity or exercise by measuring the oxygen consumption of the individual. (Tr. 15-20) By this test the energy expended in performing the more strenuous part of Respondent's plan, a combination of Programs B and C, (Tr. 43, 49) was found to be approximately 3.3 calories per 65 kilos of weight per minute for males and about 3.3 calories per 55 kilos per minute for females. (Tr. 41, 42) In more familiar terms, this expenditures of energy is the approximate equivalent of the energy expended by a man walking at a normal rate of speed, which is about 2.6 miles per hour. (Tr. 35) From this test, and from other factors such as the heart-beat rate of persons taking the exercises, their rates of respiration, and other observations, Dr. Ralston deduced that persons following Respondent's plan are not subjected to any unusual or unacceptable risks.

15. Dr. Close, the orthopedic surgeon, would discourage persons with certain acute problems such as intervertebral rupture, acute sprains of the lumbo-sacral spine or post-operative conditions from engaging in Respondent's plan. (Tr. 90-91) Otherwise, Respondent's plan is "quite safe." (Tr. 88) While, in the case of a person with severe arthritis, Respondent's plan might aggravate the symptoms, it would not adversely affect the course of the disease. In fact, arthritis often are given exercises of the type found in Respondent's plan. (Tr. 104) The belt acts somewhat as a back brace (Tr. 88) and the exercises cause very little more strain than various everyday activities such as bending down to pick up things off the floor or walking. (Tr. 122) Based upon these factors Dr. Close does not consider the following of Respondent's plan to be unsafe for the general public (Tr. 121), including persons with problems of the spine and lower back.

16. The cardiologist, Dr. Webster, delineated the degrees of myocardial insufficiency. Those most severely affected (Grade 4) are seriously ill and are, or may be, under consideration for heart transplant. Grade 3's, generally, are (1) under medical care, (2) have some symptoms, and (3) are distinctly limited in their activity. Grade 3's would not necessarily be endangered by such activities as briskly walking, jogging or playing golf, but their symptoms would limit the amount of such activity they could undertake. The aim of treatment in cases of persons having Grade 3 myocardial insufficiency is to bring them up a grade, at which time appropriate activity is prescribed. The exercise in Program A of Respondent's plan is in the same general class of exertion as playing golf. The amount of caloric expenditure and oxygen consumption, which is the standard method for determining the burden or demand placed on the heart, would be in the same general range for a person either playing golf or engaging in Program A. having in mind such conditions as myocardial insufficiency, hypertension and arteriosclerosis, there is no medically unacceptable risk or danger involved in recommending the exercises in Respondent's plan to the general public. (Tr. 281-288) In professional meetings and elsewhere, cardiologists are being told that exercise is to be encouraged because it is thought, although without complete substantiation, that exercise improves coronary circulation. (Tr. 293) On the other hand, some persons might have these conditions and not be aware of the fact. Such persons might be injured by following Respondent's plan (Tr. 296), but it has never been scientifically established that persons with heart disease are harmed or helped by exercise. (Tr. 334) There are as many deaths from coronary conditions that occur to people in the middle of the night in their beds as there are from coronary incidents that occur to people doing such strenuous work as loading a truck. (Tr. 335)

17. Dr. Linfoot, the endocrinologist, was asked whether a plan such as Respondent's should not be accompanied by a warning that persons having certain conditions should not engage in the plan without consulting with their physician. In reply, Dr. Linfoot, while doubting his qualifications to answer the question, said that, generally, it is common practice for a physician to advise patients to exercise as a part of a general health program, but that the specific kind of exercise may not be spelled out by the physician. Dr. Linfoot did characterize the exercises in Respondent's plan as being only slightly strenuous. (Tr. 805)

18. Very significant evidence on the question of the safety or the lack of safety involved in the indiscriminate sale of Respondent's plan was given by Mr. Jack Feather, co-owner of Respondent, when he testified that as of June 16, 1970, sales of the product were "Something in excess of 600,000" and that not a single complaint had been received concerning any injury, illness or death of a user of the Sauna Belt reducer. (Tr. 756) Mrs. Eileen Feather, the other co-owner of Respondent, later testified on the basis of company records that as of the end of May, 1970, 535,800 Sauna Belts had been sold and she concurred that no complaints of injury, illness, or death of a user of Respondent's plan had been received. (Tr. 1330, 1359)

19. Closely related to the foregoing testimony of Mr. and Mrs. Feather is the testimony of Dr. Mead, who had stated that of the possible casualties listed by Dr. Weilerstein, the one most likely to be precipitated or aggravated is cardiac disease, and that, taking together all the conditions mentioned by Dr. Weilerstein, there might be one untoward event per thousand individuals using Respondent's plan. Dr. Mead was then asked:

"If a hundred thousand people use the Sauna Belt as directed and none of them had a heart attack would you change your opinion?"

Dr. Mead replied:

"If this were established as an actual fact, I would change my mind." (Tr. 511-513)

20. From all of the foregoing matters bearing upon the question of the risk to which a user of Respondent's plan would be subjected, it is apparent that there is a wide divergence of opinion among qualified scientists. There is, also, the showing by the owner of the Respondent that no claims based on personal injury have been received from users, although the absence of personal injury claims does not conclusively negate the possibility of actual injury.

The Efficacy Question

21. Both parties had tests conducted to determine the general question of the efficacy of the Respondent's plan. Each type of test will be described.

22. Dr. Weilerstein conducted tests at Complainant's request. The same measuring procedures were used with each of Dr. Weilerstein's 20 subjects. At the beginning, each person was asked to pull in his abdomen to the maximum possible extent. When this had been done, a measurement was taken of the person's girth at the level of the umbilicus, and indelible ink was used to mark the line at which the measurement was taken. The measuring device was a Chatillon scale, similar to a hand-scale used for measuring the weight of fish. Sufficient tension was put on the tape affixed to the scale to exert one pound of pull. When this had been done, the measurement of the subject's girth was read off the marked tape and recorded. Some of the subjects followed Program A of Respondent's plan, some followed Program B, some followed Program C and some engaged in combinations of the various programs. After the exercises had been completed, the subject kept the belt in place for an additional 20 minutes, after which time additional measurements were made and recorded in the manner above described. (Tr. 544-552) The procedures were repeated, except for certain persons who dropped out of the test, for 3 days and final measurements were taken on the fourth day. Based on these tests, Dr. Weilerstein found that no subject had a loss of from one to three inches in girth; that the variations in girth of less than one-eighth of an inch that occurred were due to normal variations which might occur without regard to the following of Respondent's plan; that there were more increases than decreases in girth during the study as a whole; and that the following of Respondent's plan produces no significant results in terms of the girth of the user. (Tr. 557)

23. Drs. Ralston and Close tested Respondent's plan at Respondent's request, and they employed uniform measuring procedures for each of the subjects tested by them. At the outset, the subjects were told to stand in a normal upright position. Then, a strip of 1/2 inch, unmarked adhesive tape was affixed at the level of the waistline and this level was marked with ink to assure accurate placement of subsequent tapes. The exercises performed were those prescribed in Program B of Respondent's plan. Following exercise, the subjects continued to wear the belt while relaxing for periods of from 20 to 60 minutes. After this period of time, measurements were taken again as indicated above. There were 19 subjects who participated in the test. Between the first day and the termination of the last measurement on the third day, all 19 subjects showed some reduction in girth. Three subjects lost less than 1 inch; the remainder showed reductions in girth of from 1 inch to 3.87 inches; and the average change was a reduction in girth of 1.81 inches. Based upon their study, Drs. Ralston and Close found that performance of Program B, while wearing the Sauna Belt, can produce significant reductions in waist girth over a three-day period. They further found, based on other studies, that the reduction does not appear to result solely from the exercise nor from the use of the belt alone, but from following the two parts of the plan as directed in the instructions. (Ex. R-16)

24. Dr. Mark Eudey, a statistician who has a Ph.D. in mathematical statistics from the University of California, at which institution he later taught statistics with the full rank of Professor, was called by Respondent to evaluate the studies made at the request of both parties. In a general way, Dr. Eudey stated that both studies left something to be desired in terms of "blindness" (absence of bias) and reproducibility (incidence of variability in measurements), but that, on the whole, the results obtained in Respondent's tests are less subject to objection from the standpoint of reproducibility than are the results obtained by Complainant's tests. (Tr. 1373-1399)

25. A number of purchasers and users of Respondent's plan testified as to their success in loss of girth as determined by self- measurement. The Respondent offered to produce numerous other witnesses whose testimony would be to the same effect as the testimony of those persons who reported satisfactory results with the use of Respondent's plan. This offer was rejected. The testimony of lay witnesses on this subject is of doubtful competency, particularly when consideration is given to such factors as blindness and reproducibility which the expert statistician, Dr. Eudey, stated are so indispensable in achieving valid results.

26. Mrs. Eileen Feather, co-owner of Respondent and co-owner of a chain of reducing salons, produced records of 531 female patrons of her salons who, during the period April 28 to June 4, 1970, performed the Respondent's plan one time as a part of such other treatment as they received in the reducing salons. Measurements taken by personnel of the salons developed the following results:

                                                           Waist                   Abdomen
Loss of less than 1 in.                           55                          92
Loss of 1 in. to less than
      2 inches                                         396                         252
Loss of 2 inches to less
      than 3 inches                                   75                         155
Loss of 2 inches and over                      5                          34
                                                         (Tr. 1328-1329, 1351; Ex. R-29)

These statistics appear to be impressive, but whether the methods by which they were produced meet the criteria of blindness and reprodu- cibility described by the statistical expert, Dr. Eudey, is open to serious question.

SUMMARY OF FINDINGS OF FACT

1. The Respondent, Sauna Belt, Inc., is the name under which Biophysical Research and Development Corporation, a California corporation, is doing business, and it is owned and controlled by Mr. and Mrs. Jack Feather.

2. Respondent is engaged in the business of advertising and selling through the mails a belt for use in conjunction with certain exercises (together called the "plan") as a means by which users may reduce the girth of their waistlines.

3. During and prior to the month of March, 1970, Respondent advertised the plan to the public on the basis of Exhibit A to Attachment 1 to this decision.

4. In its advertising material, referred to above, Respondent makes the representations contained therein, including the following (numbered, where appropriate, as they appear in Attachment 1 hereto):

3(b) That the Sauna Belt, when used in conjunction with the exercises recommended by Respondent, will enable a person to achieve the following results:

(i) a loss of up to 3 inches from the user's waistline within 3 days;

(ii) a loss of 2 inches from the user's waistline and 1 1/2 inches from the tummy when worn "for about 30 minutes one afternoon";

(iii) a loss of "nearly 5 full inches" in the waistline when worn for a two-week period; .

3(g) That the attained desired girth may be retained merely "by using the belt about twice a month"; .

3(h) That the Sauna Belt represents a "really new idea in slenderizing"; .

3(i) That the "two magic waistline reducing exercises" to be used in conjunction with the Sauna Belt (i) are new.

5. In post sale literature containing an order blank which was in use during and prior to June, 1970, Respondent makes the represen- tation that for those with lower back problems, the Seated Toe Touches are less difficult and more safe than the Regular Toe Touches.

6. The Respondent represents that for the average person who wants to reduce the girth of his waistline the following of Respondent's plan presents neither any undue difficulty nor any undue chance of injury or adverse effect on his health.

7. There was wide divergence in the medical testimony in regard to the risk involved in engaging in Respondent's plan and in regard to the efficacy of the plan to enable the user to achieve the results represented by Respondent in its aforesaid advertising.

8. There was substantial and persuasive evidence that the oxygeny consumption and calorie expenditure involved in following Respondent's plan are comparable to those phenomena involved in walking at an average rate of speed of approximately 2.6 miles per hour.

CONCLUSIONS OF LAW

1. It is not within the province of the Hearing Examiner to determine which among the divergent, but equally persuasive, opinions of qualified physicians and scientists are correct. (Reilly v. Pinkus, 338 U.S. 269 (1949); Atlanta Corporation v. Olesen, 124 F. Supp. 482 (D.C.S.D. Cal., 1954)

2. Complainant has the burden of proving the falsity of the representations found to have been made by Respondent.

3. Complainant has failed to carry its burden of proof.

4. Complainant has failed to establish by a preponderance of the evidence that Respondent is engaged in obtaining money or property through the mail by means of false representations.

5. The evidence presented by Complainant provides no sufficient or adequate basis for the issuance of an order under 39 U. S. Code 4005.

6. The complaint should be, and in the absence of timely appeal hereby is, dismissed.

Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered. Those proposed findings of fact and conclusions of law are adopted to the extent herein indicated. Otherwise, such proposed findings of fact and conclusions of law are rejected because they are immaterial, irrelevant or contrary to the weight of the evidence.

COMMENT

The complaint in this case is predicated on advertising material used by Respondent during and prior to March, 1970. This decision is concerned with the adequacy of the proof of the truth or falsity of the representations made in that advertising matter. Respondent has adopted different advertising literature. Without expressing an opinion in regard to the truth or falsity of the representations made in that advertising matter. Respondent has adopted different advertising literature. Without expressing an opinion in regard to the truth or falsity of statements in current advertisements, it is noted that clarifying language has been adopted in regard to, among other things, (1) the maximum potential loss by each individual, (2) the frequency and duration of continued use, and (3) the claim that the exercises have been "adapted" rather than "designed" for use with the belt. In addition, there is now no order blank on the sheet containing instructions for engaging in the various programs of Respondent's plan, and Respondent has adopted the practice of inserting with each Sauna Belt sold a cautionary notice, captioned "Special Attention," in which it is suggested that it is an excellent idea for every person to have a medical check-up before beginning the conditioning program.

These matters are pointed out to indicate that, under careful and competent guidance of counsel, Respondent is voluntarily taking steps intended to eliminate sources of possible misunderstanding on the part of those to whom the advertising is directed.

____________________

1/ The pertinent portion of the statute under which this proceeding is brought reads as follows:

"(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 representations, *** the Postmaster General may issue an order which--

(1) directs any postmaster at an office at which registered or certified letters or other letters or mail arrive, addressed to such a person or to his representative, to return such letters or mail to the sender appropriately marked as violation of this section, *** and;
(2) forbids 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 sum named in the money order or postal note."

2/The joint use of the Respondent's device and exercises will sometimes be referred to as the Respondent's "plan."

3/More will be said later in this decision about the advertising material used by Respondent.