In the Matter of the Complaint Against

DIVERSIFIED PRODUCTS CO.,
Post Office Box 7218,
San Diego, California 92107

and

SKI TEAM DIET,
P. O. Box 15493,
San Diego, California 92115

P.S. Docket No. 1/75

William A. Duvall Chief Administrative Law Judge

APPEARANCES: James J. Robertson, Esq.
Consumer Protection Division
United States Postal Service
Washington, D. C. 20260 for Complainant

Edward J. Leavitt, Esq.
110 West "C" Street
San Diego, California 92101 for the Respondent

INITIAL DECISION OF
ADMINISTRATIVE LAW JUDGE^1/

This proceeding was initiated by the filing by the Assistant General Counsel for the Consumer Protection Office of the Office of the General Counsel of the United States Postal Service on April 17, 1972, of a complaint in which it is alleged that Diversified Products Company of San Diego, California, is engaged in conducting a scheme of device for obtaining money or property through the mails by means of false representations contrary to the provisions of Title 39 of the United States Code, Section 3005.

An answer to the complaint was filed on May 18, 1972, as authorized by an extension of time requested by the Respondent and granted by the presiding officer.

Subsequently, a motion was made and granted, by which the caption of the complaint was amended to include as a Respondent, the name Ski Team Diet, also of San Diego, California.

At the Respondent's request, this matter has come on for hearing before the undersigned Administrative Law Judge in San Diego, California.

The substance of the complaint in this case is that the business in which the Respondent is engaged is the offering for sale through the mails of a diet plan upon the basis of false representations.

The Use of the Mails

There was ample proof as to the use of the mails by the Respondent in the conduct of its business in the form of test correspondence conducted by Inspector Gerald E. Raftery, who investigated the case. Inspector Raftery, by means of test correspondence, ordered the diet from the Respondent under both of the names being used in the conduct of the business.

In response to the orders, the Respondent mailed the diet to the test name used by the Inspector and these items of evidence have been received in evidence in this proceeding as Complainant's Exhibits No. 1 through 15. In addition to this proof, there is a stipulation by the Respondent that the owner of the Respondent, Dirken R. Sears, operates both businesses and receives mail addressed to both business names.

The Alleged Representations

The Complainant alleges that, in the conduct of its business, the Respondents make the following representations in regard to the diet being sold:

(1) That by adhering to a diet plan which Respondent alleges he will provide, an individual can lose 20 pounds in 14 days;

(2) That Respondent's diet plan is based on chemical food action;

(3) That Respondent's diet plan was devised by a famous Colorado physician especially for the U.S. Ski Team;

(4) That an individual who adheres to Respondent's diet plan will maintain his normal energy while reducing;

(5) That an individual who adheres to Respondent's diet plan will not be subjected to starvation, nor discomfort and that such an individual will always be "full";

(6) That Respondent's diet plan is one which is easily adhered to by all individuals under all circumstances;

(7) That Respondent's diet plan is the official diet plan of the U. S. Women's Olympic Ski Team; and

(8) That Respondent's diet plan does not involve the restriction of caloric intake.

The basis of the representations which the Complainant charges that the Respondent makes is found in two ads which are identical except that the amount of money charged for the diet is different, and, of course, the name of the business enterprise is different.

These advertisements were published in the November 22, 1971, issue of the Washington Evening Star and in the June 19, 1972, issue of the Philadelphia Evening Bulletin. If the advertisements have been published in other publications, there is no evidence of that other, or additional, publication which has been offered or received in evidence in this proceeding.

The advertisement in question reads as follows:

                                                        "LOSE 20 POUNDS
                                                           IN TWO WEEKS]
                                             Famous U.S. Women Ski Team Diet
                                 During the non-snow off season the U.S. Women's
                            Alpine Ski Team members go on the 'Ski Team; diet to
                            lose 20 pounds in two weeks. That's right--20 pounds
                            in 14 days] The basis of the diet is chemical food
                            action and was devised by a famous Colorado physician
                            especially for the U.S. Ski Team. Normal energy is
                            maintained (very important]) while reducing. You keep
                            'full'--no starvation--because the diet is designed
                            that way] It's a diet that is easy to follow whether
                            you work, travel or stay at home.

                                 This is honestly a fantastically successful diet. If
                            it weren't, the U.S. Women's Ski Team wouldn't be
                            permitted to use it] Right? So, give yourself the
                            same break the U.S. Ski Team gets. Lose weight the
                            scientific, proven way. Even if you've tried all the
                            other diets, you owe it to yourself to try the U.S.
                            Women's Ski Tema Diet. That is, if you really do want
                            to lose 20 pounds in two weeks. Order today. Tear
                            this out as a reminder.

                                 Send only $1.00 ($1.25 for Rush Service)--cash is
                            O.K.--to: Diversified Products Co., P.O. Box 7218, San
                            Diego, Calif. 92107. Don't order unless you expect to
                            lose 20 pounds in two weeks] Because that's what the
                            Ski Team Diet will do]"

Looking at this advertisement as a whole, and placing upon it a reasonable construction, considering it in the light of the effect that the advertising material would have on the average reader, the conclusion is inevitable that such average reader would conclude that the Respondent is making the representations which are set forth above.

Alleged Falsity of the Representations

considering the question of whether the representations made by the Respondent are true, or false, we have been particularly fortunate in this proceeding to have had the benefit of the testimony of Dr. Sheldon Margen, who, among his many other qualifications, is the Chairman of the Department of Nutritional Sciences at the Berkeley Campus of the University of California/ Dr. Margen's most impressive curriculum vitae is a part of the record in this proceeding, and is Exhibit 16. It attests to the fact that he is eminently qualified to give testimony in regard to the area of medicine, which is the subject of this proceeding.

Dr. Margen testified specifically and with clarity with regard to each of the charges set forth in the complaint.

The proper treatment for the condition known as obesity is to have the person consult with a physician who will devise for that individual a program that is both safe and effective in producing a weight loss. This involves a determination of the motivation of the individual and an evaluation of the way in which the individual adheres to his diet. The one essential ingredient of any reducing program is a reduction in caloric intake. In prescribing a reduced caloric diet for an individual, allowances must be made for metabolic differences in individuals. To do this a person's past history must be studied. Also, the loss of weight must be so managed that a person will lose fat, but not at the expense of losing vital muscle and protein tissue. Finally, a proper exercise program must be prescribed for the person and followed by the person.

In regard to Charge No. 1 of Paragraph 5 of the complaint, the evidence is that a person who is healthy, but obese, would not lose 20 pounds in 14 days. There are some persons who have an excess accumulation of fluids in their system who might lose as much as 12 or 14 pounds in 14 days.

In regard to the representation by the Respondent that the diet plan is based on chemical food action, Dr. Margen classified this language as "gibberish" and being of no medical significance whatsoever. He went so far as to state that he did not know the meaning of this term. If a man of Dr. Margen's qualifications does not know the meaning of the term, the term must be meaningless.

In regard to Charge No. 3 of Paragraph 5 of the complaint, the testimony was that this diet was devised by a man who is a coach of the Ski Team, but that he had it checked and varied somewhat by a physician who was on the staff of S. Lukes Hospital in Denver, Colorado. Therefore, to the extent that this physician altered the original plan of the Ski Coach, the plan was devised by the physician and I find that the Complainant has not established by a preponderance of the evidence that this charge is false.

In regard to Charge 4 of Paragraph 5 of the complaint, a person who adheres to the Respondent's diet plan will not maintain his normal energy while he is on the plan for the reason that the caloric intake to which the person has become accustomed is reduced. The individual might feel good, but this is a physchological reaction to his belief in the representations in the advertising literature. The likelihood is that many people following and taking this diet will feel logy or drowsy. In addition to this feeling of drowsiness or inertia that many people will feel, there are some individuals for whom the following of this diet would produce an oxidization of food, or tissue at such a rapid rate that there is inadequate carbohydrate supply for the body needs. The result of this condition would be a loss of salt and water from the body which in two or three days produces a four or five pound loss of weight. This weight loss would be accompanied by what the doctor described as a "fuzziness" in the head and interference with the excretion of uric acid, and it could be the cause of an attach of gout.

Concerning Charge No. 5 of Paragraph 5 of the complaint, the presiding officer agrees with the Respondent that the person who follows Respondent's diet will not be subjected to starvation. Such a person would, however, feel discomfort and he would not feel full.

The expert testimony in regard to Charge No. 6 of Paragraph 5 is that there is no diet, including the diet being sold by the Respond- ent, which is easily adhered to by all individuals under all circum- stances. Beyond this, Dr. Margen went on to say that the Respond- ent's diet does not serve to re-educate a person for proper dieting and that he would not prescribe such a diet for his patients.

The testimony of Inspector Raftery was that the Coach of the Ski Team did say the Respondent's diet is used by the U.S. Women's Olympic Ski Team. Its purpose was not to produce as great a weight loss as indicated by the Respondent, but, nevertheless the diet is used. Therefore, the Complainant has not established the falsity of Charge No. 7 of Paragraph 5 of the complaint.

With regard to Charge No. 8 of Paragraph 5 of the complaint, the expert medical testimony is that this diet comprises a diet of approximately 1200 to 1400 calories a day and that it is, therefore, a diet which involves the restriction of caloric intake. Accord- ingly, the Complainant has established the falsity of this repre- sentation made by the Respondent.

Based upon all of the foregoing facts and circumstances, I make the following findings of fact.

Findings of Fact

1. The Respondent is engaged in the business of selling a diet plan through the mails.

2. In connection with the operations of this business, the Respondent makes, or makes in substance, the representations set forth in Charges 1 through 8 of Paragraph 5 of the complaint filed herein.

3. Those representations are made in advertisements appearing in newspapers of wide circulation.

4. The representations set forth in Charges 1, 2, 3, 4, 6 and 8 of Paragraph 5 of the complaint are false and they are materially false. Also, in this category, is Charge No. 5 of Paragraph 5 of the complaint with the exception of the words "to starvation".

Conclusion of Law

It is concluded, as a matter of law, that the Respondent is engaged in conducting a scheme for obtaining money or property through the mails by means of false representations contrary to the provisions of Section 3005 of Title 39 of the United States Code. In this connection, it must be stated that there is no longer the requirement to establish an intent to deceive on the part of the Respondent in a proceeding of this kind. The governing statute was amended in 1971 and the amendment removed from the statute, as it then existed, the words, "or fraudulent".

So, that now it is necessary only that there be established that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations.

Upon the basis of the entire record of this proceeding, it is concluding that a mail stop order as provided in 39 U. S. Code 3005 should be issued against the Respondent in both names appearing in the caption of the complaint as amended.

__________________

1/ Changes have been made in this decision to correct typographical errors and to make minor language changes, but no change has been made which affects the substance of the decision.