In the Matter of the Complaint Against

BASLEE PRODUCTS CORP.
618 Broadway and P.O. Box 288 at
Bayonne, New Jersey 07002

P.S. Docket No. 1/108;

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

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

POSTAL SERVICE DECISION

Background

This proceeding was initiated on June 8, 1972, by the filing of a complaint by the General Counsel, United States Postal Service, charging the 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.C. 3005. In essence the false representations made in marketing Respondent's "Marvex Plan" and the efficacy of that plan as a weight reduction program for overweight persons.

On June 22, 1972, Respondent moved in accordance with the applicable Rules of Procedure for an expedited hearing before the Judicial Officer and requested that the hearing be scheduled for June 29, 1972. Respondent's motion was granted and a hearing was held on June 29 and June 30, 1972. Following the hearing, the parties were authorized to file briefs and such briefs have now been received.

Respondent's answer admits the use of the mails in marketing the Marvex Plan and that it uses the advertisement in evidence (CX-1) ^1/ to solicit mail orders for its Marvex Plan. The Marvex Plan consists of a single sheet of dietary instructions (CX-4) together with a supply of Marvex Capsules (CX-3), whose active ingredients are various vitamins, or on some occasions Marvex Tablets (RX-1) whose active ingredients are various vitamins and minerals.

It is, therefore, established that Respondent is engaged in a program (charged to be a scheme or device) for obtaining money through the mail by means of the representations in the advertisement attached to the complaint and in evidence. Two issues remain to be decided; namely, whether Respondent has made the representations charged in the complaint and, if so, are those representations false representations within the meaning of 39 U.S.C. 3005.

The Representations Charged

The advertisement, of course, must be looked at as a whole rather than just individual statements to determine whether the representations charged were, in fact, made by Respondent. This has been done in reaching the conclusion in this decision. Nevertheless, in order to provide an orderly discussion of the charges and the foundation for them, I have quoted each charge and some language in the advertisement relevant to each of them.

The complaint specified nine representations which it alleges are made in Respondent's advertising and it further charges those representations are false. The specifications are lettered from a.-j. in paragraph 3 of the complaint and are referred to under these letters as follows:

Specification a.: "'The Marvex Plan' is a scientifically sound and effective remedy for obesity."

Advertisement: "Remember this method of weight loss is Tested and Proven and is currently being used by a LEADING NEW YORK INTERNIST on his overweight patients. And it was originally discovered by the United States Department of Agriculture, so you are not experimenting with a new gimmick or theory."

"Keep in mind that the MARVEX PLAN is safe, effective and simple, and best of all, really works to get rid of that fat and keep it off."

Specification b.: "'The Marvex Plan' will overcome, treat and cure obesity while permitting the obese person to eat all the fattening foods he may desire."

Advertisement: "I ate all the Fried Chicken, Fatty meats, Unlimited Amounts of Oil, Cheese, Butter * * * Until I was so full I couldn't move * * * and just about Every High Calorie Food and as much as I wanted."

"* * * actually stuffing myself I lost as much weight as I wanted".

Specification c.: "An obese person may accomplish losses of weight more quickly by consuming increased quantities of fattening foods while adhering to 'The Marvex Plan'."

Advertisement: "THE MORE HIGH CALORIE FATTENING FOODS YOU CONSUME THE FASTER YOU LOSE WEIGHT]"

"The more fattening foods you eat the faster the weight disappears."

Specification d." "'The Marvex Plan' is safe for use by all persons in normal health."

Advertisement: "If you are in normal health and Want To Lose Pounds And Inches of Unwanted Ugly Fat that's ruining your appearance and shortening your life . . . well here at last is your opportunity]" "Keep in mind that the MARVEX PLAN is safe, effective and simple".

Specification e.: "Through adherence to the 'Marvex Plan' an obese person may lose as much weight as he desires within any period of time he may select."

Advertisements: "* * * with this method of actually stuffing myself I lost as much weight as I wanted".

"You must lose as much weight as you want and keep it off]"

Mail Order Coupon:

"PLEASE FILL IN THE ENCLOSED CHART AS TO THE AMOUNTS OF WEIGHT AND HOW QUICKLY YOU WOULD LIKE TO LOSE IT]

______ I would like to lose pounds in 5 days.

______ I would like to lose pounds in 10 days.

______ I would like to lose pounds in 15 days.

______ I would like to lose pounds in 20 days.

______ I would like to lose pounds in 25 days.

______ I would like to lose pounds in 30 days.

Specification f.: "'The Marvex Plan' was developed and approved by the United States Department of Agriculture."

Advertisement: "THE UNITED STATES DEPARTMENT OF AGRICULTURE HAS PUBLISHED ALL THE INFORMATION YOU NEED".

"And it was originally discovered by the United States Department of Agriculture, so you are not experimenting with a new gimmick or theory."

Specification g.: "'The Marvex Plan' will effectively overcome, treat and cure obesity in every instance."

Advertisement: "THIS AMAZING METHOD WORKED ON 100% OF ALL CASES TESTED]]" "I GUARANTEE RESULTS IN THE FIRST 5 DAYS OR MY MARVEX PLAN WILL COST YOU NOTHING]"

"You must lose as much weight as you want and keep it off]"

"I understand that if I do not lose pounds and inches after following your "MARVEX' Method . . . I am entitled to a refund of the complete purchase price."

Specification h.: "'The Marvex Plan' does not require an obese person to limit the variety of foods which he may consume."

Advertisement: "I ate all the Fried Chicken, Fatty meats, Unlimited Amounts of Oil, Cheese, Butter . . . Drank Martinis, all the Scotch or Rye liquors I wanted -- Drank Heavy Cream, Sour Cream, Mayonnaise, Hollandaise Sauce . . . Until I was so full I couldn't move. All the Eggs I wanted, Chicken Livers, all the Shrimp and Bacon, Pork, Fatty Meats . .. and just about Every High Calorie Food as much as I wanted."

"Just eat all you want of those Delicious Fattening Foods and watch the miracle take place."

"NOW YOU DO NOT NEED TO USE SELF CONTROL AT ALL WITH THIS METHOD".

Specification i.: "'The Marvex Plan' has been scientifically tested and proven as a safe, effective and permanent remedy for obesity."

Advertisement: "Remember this method of weight loss is Tested and Proven and is currently being used by a LEADING NEW YORK INTERNIST on his overweight patients. And it was originally discovered by the United States Department of Agriculture, so you are not experimenting with a new gimmick or theory."

"Keep in mind that the MARVEX PLAN is safe, effective and simple, and best of all, really works to get rid of that fat and keep it off."

Specification j.: "'The Marvex Tablet' plays a significant part in the accomplishment of a reduction of body weight and size."

Advertisement: "Here's all you do: Take only 1 MARVEX tablet daily with your breakfast following the enclosed method . . . and just watch the fat literally fall away. That's correct, no swallowing of 3 or 4 pills a day. Just take 1 tablet with this plan and your own body does the work for you."

"Enclosed is my payment in full for your wonderful 'MARVEX' Formula."

Specification f. charges that Respondent represents the Department of Agriculture "developed" and "approved" the Marvex Plan. However, the advertisement represents that the method was "discovered" by the Department. But one person can discover ^2/ a method and another may develop it. Whether the advertisement should be viewed as representing that the Department has approved the method involved in the Marvex Plan need not be decided, since Complainant has not negated approval.

All other representations charged in the specifications are made in Respondent's advertisement, and I so find.

The Testimony

Dr. Thomas H. McGavack, M.D., a licensed physician and a diplomate of the Board of Internal Medicine, testified as a medical expert. He has taught for many years at the Medical Schools of the University of California and New York University. At the latter he attained the status of full professor. His teaching specialty was in endocrine and metabolic services. From 1957 through 1969 he served at the Martinsburg (West Virginia) Veterans Administrative Center in the dual capacity of Chief of a service for the chronically ill and Associate Chief of Research. Concurrently with the above activities, Dr. McGavack maintained medical practices and held staff positions at various hospitals. He has written extensively in professional journals. Since 1969 Dr. McGavack has continued his writing and consultation activities.

He is obviously well qualified to testify concerning the matters involved here. In his practice and in research projects, the witness has had substantial experience in the control of weight in humans including the treatment of obesity.

Dr. McGavack testified there are a wide variety of rare diseases and conditions that may cause obesity, but that the commonest cause is overeating (Tr. p. 44) and that when obesity is caused by overeating, curtailment of calories and maintenance of a good dietary balance is all that is needed to overcome it (Tr. p. 45).

He characterized the Marvex Plan as being based on a no carbohydrate diet (Tr. pp. 51 & 63). He was cross-examined extensively concerning articles in medical journals involving the use of low carbohydrate diets.

Much of the testimony of Dr. McGavack on cross-examination dealt with low carbohydrate diets. While this testimony is obviously relevant to a no carbohydrate diet, low carbohydrate and no carbohydrate diets differ in substantial degree. Much of the testimony in cross-examination also related to low carbohydrate diets in which calories were otherwise controlled.

Dr. McGavack's testimony may be generally summarized as stating that a low or no carbohydrate diet will effect substantial weight reduction in most cases (Tr. p. 106) but that a no carbohydrate diet is dangerous and that even a low carbohydrate diet is not safe for extended periods (Tr. p. 52) and that the dangers of such a diet are greater for the obese than for others (Tr. p. 53). This witness also testified that the Marvex Plan is neither a universally effective nor universally safe program for weight reduction. He did testify that where food intake is otherwise controlled, five or six meals a day would not be inconsistent with a weight reduction program (Tr. p. 65). With regard to the other charges specified in the complaint, the witness testified that for a very obese person to lose 69 pounds in 30 days would be possible but it would be at terrific physiological risk (Tr. p. 59), that it would be unsafe (Tr. p. 71) and most unusual, and that "if we saw it we wouldn't allow it." (Tr. p. 116). According to Dr. McGavack's testimony increase in fat will not cause weight loss to occur more quickly (Tr. p. 83), and the Marvex Plan will not allow a person to lose as much weight as he wants (Tr. p. 83). In addition, Dr. McGavack stated specifically that each of the representations a.-e. and g.-j. were incorrect (Tr. pp. 81-85).

In addition to Dr. McGavack, Complainant used the testimony of Dr. Louise Paige, a nutritionist employed by the Department of Agriculture as a nutrition analyst in the Consumer and Economics Research Service. Dr. Paige holds a Bachelor's degree in Food and Nutrition, a Master's in Experimental Foods and a Doctorate in Nutrition and has completed a dietetic internship in the Walter Reed Army Hospital and has been employed as a nutritionist for a substantial period. She has also prepared the text of two Department of Agriculture publications on nutrition and contributed to at least one other publication of the Department (Tr. pp. 11 and 12). Dr. Paige is well qualified to testify as an expert on nutrition. Her testimony on the nutritional matters involved in the representations charged was generally supportive of Dr. McGavack's testimony.

In addition, Complainant attempted to show through this witness that the Department of Agriculture had not developed or approved the Marvex Plan and did establish through Dr. Paige that neither the plan nor any similar dietary approach had been approved by certain organizations within the Department. Her testimony, however, did not negate the possibility that approval might be found in the work of other organizations.

Respondent's evidence consisted of the testimony of Dr. Carlton Fredericks who was presented as an expert in nutrition.

Dr. Fredericks testified he reads a substantial amount of literature in the field of nutrition (Tr. p. 207) and is or has been a member of a number of professional societies (Tr. p. 205) and that he has written a number of books on nutrition (Tr. p. 206). However, his academic background is not impressive. His B.A. degree was taken with an English major with a minimum of science (Tr. p. 245). His Master's and Doctorate were in Public Health Education (Tr. pp. 246 and 248).

Dr. Fredericks' testimony as to his background and occupation was often evasive and contradictory. ^3/ Under all the circumstances I am unable to give substantial credit to his testimony.

Assessment of the Evidence

Parts of Dr. McGavack's testimony are reviewed above and as stated he is very well qualified to give expert medical testimony. As is evident from the transcript, he used much care to prevent his answers from being misleading. Care, of course, sometimes led him beyond the questions asked. His testimony is fully accepted Further, the nutritional aspects he testified to are supported by the testimony of Dr. Paige, another credible witness. The only contrary evidence is the testimony of Dr. Fredericks which for the reasons given above is not entitled to be treated as having any substantial value. Complainant's evidence fully supports the charges of the complaint, except with respect to Representation f.

The dietary program of the Marvex Plan is given on the printed sheet (CX-4) that accompanies the shipment of Marvex Capsules or Tablets. It expressly states "there are no fat intake restrictions and calories are not to be counted." However, it does expressly proscribe all sugars and other carbohydrates and in this connection specifically mentions desserts. Certainly these are fattening foods that are widely desired and eaten by the American public. The dietary regimen that eliminates them, substantially limits, contrary to Representations b and h, the variety of foods the user consumes but would also not be one that would allow the user to eat all the fattening foods he may desire.

07/28/72

Respondent conceded (Tr. pp. 80, 81) that the Marvex Tablets and the Marvex Capsules do not, as Specification j represents, play a significant part in the accomplishment of the reduction of body weight and size (Tr. pp. 81, 82).

Findings of Fact

I find that:

1. Respondent is engaged in obtaining remittances of money through the mail;

2. Respondent obtains such remittances through the representations alleged in Specifications a, b, c, d, e, g, h, i, and j of paragraph 3 of the complaint; and

3. The aforesaid representations are materially false.

Conclusions of Law

On the basis of the Findings of Fact made in this decision, it is concluded that Respondent is engaged in conducting a scheme or device for obtaining money through the mail by means of false representations within the meaning of 39 U.S.C 3005.

A remedial order will be issued forthwith. However, the Postmaster will be instructed to retain for 15 days from receipt of the order all mail that otherwise would be returned to the sender under the terms of that order.

__________________

1/ "CX" is used to designate Complainant's exhibits; "RX" to designate Respondent's exhibits.

2/ Obviously, the low carbohydrate method of weight control was not discovered by the Department of Agriculture, since the method was known long before the Department was established (cf. Tr. p. 209), but the representation charged relates to development, not discovery.

3/ Compare Tr. p, 203, 1. 6 and Tr. p. 249, 11. 10-19; Tr. p. 203, 11. 10-25 and Tr. p. 249, 11. 7-9 (See also paragraph 2, p. 49 of the Federal Trade Commission Hearing Examiner's Initial Decision in the Matter of Carlton Fredericks, FTC Docket No. 8668, July 11, 1966); Tr. p. 249, 11. 14-19 and Tr. p. 251, 11. 20-23. (See also U.S. v. Articles of Drug et. al., N.J. 1965, 239 F.Supp. 465 at p. 470).