In the Matter of the Complaint Against

BREWSTER PRODUCTS at
P. O. Box 908,
Madison Square Station
New York, New York 10010 and
20 Branford Place
Newark, New Jersey 07102

P.S. Docket No. 3/79;

APPEARANCES:

H. Richard Hefner, Esq.
Thomas A. Ziebarth, Esq.
Law Department
United States Postal Service
Washington, D.C. 20260
for the Complainant

Robert Ullman, Esq.
Bass & Ullman
342 Madison Avenue
New York, New York 10017
for the Respondent

POSTAL SERVICE DECISION

This proceeding was initiated by the filing of a complaint by the General Counsel charging the above-named Respondent with conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of 39 U.S. Code 4005, now section 3005. In brief, the complaint charges Respondent with having made false representations concerning the nature of its product Formula 11 and the ability of that product to cause obese persons to lose weight. Following hearing and briefing, the Hearing

Examiner upheld the allegations of the complaint and in his Initial Decision recommended the issuance of an order as authorized by 39 U.S. Code 3005.

The Initial Decision found that, in connection with the mail order sale of the Formula 11, Respondent made the representations charged in the complaint and that those representations are false. He concluded, therefore, that Respondent was engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of 39 U.S. Code 3005 and recommended the issuance of an appropriate order under that law.

On appeal Respondent does not deny that it has made the representations charged, but objects to the Hearing Examiner's findings that they are false. Its three exceptions to the Initial Decision essentially go to the credibility and the weight to be given the testimony of the Complainant's medical expert, Dr. Lawrence E. Putnam.

As a physician certified as a specialist in internal medicine with fifteen years' work in clinical pharmacology and fifteen years of full-time practice of medicine including a substantial practice in treating obesity, and having been lately a professor of clinical medicine, Dr. Putnam was, as the Hearing Examiner found, highly qualified to testify as Complainant's product and its value in a weight-reduction program.

The active ingredients of the tablets are various vitamins and minerals, benzocaine, sodium carboxy methyl cellulose and methyle cellulose. The latter two substances are substantially identical.

Dr. Putnam testified the vitamins and minerals in the tablets do not assist in weight reduction but would tend to offset vitamin and mineral deficiencies a very restricted diet might otherwise entail. Dr. Putnam testified that weight reduction could be accomplished only by restricting intake of calories to an amount less than the body uses. The Respondent apparently does not question these general statements. It does, however, object to a conclusion that Formula 11 does not assist substantially in controlling calorie intake.

As he did before the Hearing Examiner, Respondent attacks Dr. Putnam's testimony on the basis of the inquiries during cross-examination concerning several reports or studies which might show that Dr. Putnam's views do not represent the universality of medical opinion. Nevertheless, the Hearing Examiner fully credited Dr. Putnam's testimony that the constituents of Formula 11 capsules could have only a fleeting effect on the desire for food and, therefore, could not aid materially in a weight-reduction program.

Cross-examination revealed the existence of studies using one or more of the ingredients of the Formula 11 tablets along with dietary regimens in which subjects apparently lost weight. Insofar as indicated in the record of this case, these studies, which were not put in evidence, either did not indicate the extent of weight loss or that the weight loss was of extremely modest proportions. ^1/ Further, Respondent's Exhibit 1 establishes that methylcellulose has been used for weight-reduction purposes, but contains no assessment of its value. Complainant's medical witness generally deprecated the studies and the ability of benzocaine and methylcellulose to aid in weight-reduction programs, but did not cite specific formal studies showing the substances to have no value. But cross-examination did not touch on matters directly involving the truth or falsity of the advertising representations.

In order to place this proceeding in proper perspective it should be noted that the complaint does not charge either that no weight loss will occur through the combined effect of the prescribed dietary restrictions and the tablets or that the tablets cannot make a contribution in such a program. Rather the charges in the complaint relate to representations in the advertising concerning large weight losses rapidly obtainable through Formula 11 and the representations of uniqueness of Formula 11.

Cross-examination did not impair the credibility of the medical expert's testimony as to the valuelessness of the Formula 11 tablets to assist in achieving the results claimed, although such examination did raise the possibility that medical opinions might differ as to the value of some of their ingredients in achieving substantially lesser results.

Respondent contends that the Hearing Examiner shifted the burden of proof to the Respondent. This is not the case. The Complainant carried the burden of proof, if Dr. Putnam's testimony regarding the falsity of the claims is accepted. Obviously, in considering the weight to be given a witness' testimony, its consistency or inconsistency with other evidence of record must be determined. It was not error for the Hearing Examiner to take into account the lack of credible contrary medical evidence in assessing the weight to be given Dr. Putnam's testimony.

The Hearing Examiner, who observed the witness, found him to be reliable and credible. I find no reason to overturn the Hearing Examiner's finding.

The Complainant carried the burden of proof as to falsity through Dr. Putnam's testimony. That testimony, as the Hearing Examiner observed, was not rebutted by Respondent. ^2/

Conclusion

After a review of the entire record including consideration of the arguments presented on appeal, I find the Initial Decision to be supported by the evidence of record.

Accordingly, the Initial Decision is affirmed and a remedial order as provided in 39 U.S. Code 3005 will be issued.

Following the filing of the complaint in this proceeding, Respondent brought suit to obtain a judicial determination that the governing statute is unconstitutional. A decision of a three-judge court (Vincent Lynch, d/b/a Brewster Products v. Blount, D.C. S.D. NY, 71 Civ. 1564) on August 16, 1971, in that suit upheld the constitutionality of the statute. The record of this proceeding does not indicate whether Respondent is taking an appeal to the United States Supreme Court. In view of the foregoing, the usual practice of issuing a remedial order on the same date the Postal Service Decision is filed will not be followed. Rather the Order will be issued 10 days from the date of this decision, unless good cause is shown why a different action should be taken.

12/13/71

Wenchel, Adam G.

____________________

1/ 46 grams and 75 grams a day (Tr. pp. 82, 108).

2/ cf. Koch v. Federal Trade Commission, 206 F.2d 311, 319, C.A. 6 1953