In the Matter of the Complaint Against

ANAPAX PRODUCTS, INC.
P. O. Box 194, Ryder Station at
Brooklyn, New York 11234

P.O.D. Docket No. 3/53;

APPEARANCES:
H. Richard Hefner, Esq.
Law Department United States Postal Service
Washington, D.C. 20260 for the Complainant

Kenneth P. Keller, Esq.
Krieger, Chodash & Politan
921 Bergen Avenue
Jersey City, New Jersey 07306 for the Respondent

FINAL DECISION OF THE POSTAL SERVICE

This proceeding was initiated by the filing of a complaint by the General Counsel for the Post Office Department, (now United States Postal Service) Complainant, charging Anapax Products, Inc., New York, New York (Respondent), with conducting an enterprise in a manner proscribed by 39 U.S. Code 4005, as amended.

Respondent is engaged in advertising and selling through the mails an alleged weight reducing system called The Anapax Method. The gravamen of the complaint is that Respondent is selling and attempting to sell its product through the mails by means of false representations. ^1/ At the hearing, Complainant introduced evidence establishing the use of the mails in connection with the advertising and sale of Respondent's product, and Complainant also presented expert medical testimony by a highly qualified and experienced medical doctor who is board certified as internist. No witness was presented by Respondent.

The Hearing Examiner rendered an Initial Decision in which he found and concluded (1) that Respondent makes the representations set forth in the complaint and (2) that such representations are false.

Respondent, in an appeal from the Initial Decision of the Hearing Examiner, excepts to the Examiner's finding that Respondent makes the following representations:

"(a) That respondent represented that the Anapax Method is a scientifically sound and effective means of overcoming, treating and/or curing obesity;

(b) That the Anapax Method is a certain means of overcoming, treating and curing obesity;

(c) Tht the Anapax Method will permanently cure obesity;

(d) That the Anapax Method may be safely employed by all obese persons;

(e) That adherence to the Anapax Method will not require an obese person to restrick (sic) his caloric intake or to significantly alter his eating habits;

(f) That an obese person may increase lost weight through an increase consumption of food;

(g) That an obese person may reduce body weight at any desired rate of speed;

(h) That the method has been proven and generally accepted by the medical profession as a scientifically sound and effective means of curing obesity."

After a thorough review of the entire record of this proceeding,including the pleadings, the transcript of the testimony presented at the hearing, the exhibits received as evidence at the hearing, both briefs filed by each party, and the Initial Decision, it is apparent that Respondent's exceptions to the Hearing Examiner's Initial Decision are without both foundation and merit. Respondent's exceptions are disallowed.

Respondent's advertising material, when considered as a whole and in the light of the effect such advertising "would most probably produce on ordinary minds", does create the impressions expressed in the language used in the charges of the complaint. (Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948); Stein's v. Pilling, 256 F.Supp. 238, 243 (N.J. 1966); F.T.C. v. Sterling Drug, 317 F.2d 669, 674-5 (CA 2, 1963)).

The testimony of the medical expert is to the effect that the representations used by Respondent for the purpose of inducing persons to buy its product are materially false.

The effect of false representations persists "even where there is a promise to refund the purchase price should the article sold prove unsatisfactory." (Borg-Johnson Electronics, Inc. v. Christenberry, 169 F.Supp. 746, 751 (S.D.N.Y., 1959)).

Respondent is engaged in the conduct of an enterprise for obtaining money through the mail by means of false representations concerning overcoming, treating and curing obesity contrary to the provisions of 39 U.S. Code 4005. The findings and conclusions of the Hearing Examiner to the foregoing effect are amply supported by a preponderance of the evidence of record. There is no substantial evidence in the record to the contrary. See: U. S. Health Club v. Major, 292 F.2d 665 (CA 3, 1961); cert. den. 368 U.S. 896 (1961); Fanning v. Williams, 173 F.2d 95 (CA 9, 1949); In re Bel-Doxin, et al., P.O.D. Docket No. 3/28 (1970).

The Initial Decision of the Hearing Examiner is affirmed.

A remedial order as provided in 39 U.S. Code 4005 will issue forthwith.

05/03/71

Duvall, William A.

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1/ A copy of Respondent's advertising literature is attached hereto as Appendix A.