In the Matter of the Complaint Against

BRENTWOOD RESEARCH at
Los Angeles, California 90028

P.S. Docket No. 1/173

David J. Knight Administrative Law Judge

Daniel S. Greenberg, Esq. ,
Consumer Protection Office,
U. S. Postal Service, Washington, D. C.
for the Complainant

David M. Brown, Esq. ,
Fleishman, McDaniel, Brown & Weston,
Hollywood, California,
for the Respondent

INITIAL DECISION OF DAVID J. KNIGHT, ADMINISTRATIVE LAW JUDGE

The Consumer Protection Office of the U. S. Postal Service (Complainant), ^1/ seeks the issuance of an order under 39 U.S.C. Section 3005 which would require the postmaster as Los Angeles, California, to return to the sender mail addressed to Brentwood Research (Respondent) sent in response to a certain advertisement, such mail showing on its face that it is returned because the addressee has violated the false representation law. The order would also prevent the postmaster from cashing any postal money order relating to the advertisement and drawn to Respondent's favor. ^2/

The complaint alleges that Respondent is engaged in a scheme or device to obtain money through the mail by means of false representations. It says that certain advertising is distributed to the public by the Respondent representing essentially that the so-called 'Brentwood Method' will allow a purchaser to lose one pound of weight per day safely and soundly until his desired weight level is attained. This may be accomplished, according to the complaint, without dieting and the desired weight level can be maintained. The complaint contends that these representations are factually false.

The Respondent replied ^3/ admitting to the use of the mail but denying that it is involved in any scheme and that any of the alleged representations are false. It claims in its answer that 39 U.S.C. Section 3005 is unconstitutional on its face and as applied to the facts in this case. Contemporaneously, it moved to change the place of hearing from Washington, D. C., where it was scheduled, to Los Angeles, California, and this motion was granted. Hearing was set for December 5, 1972, but put over to January 15, 1973, partly on Respondent's motion and partly for administrative necessity to combine this case with others to be heard on the West Coast.

The hearing was held on January 15 at Los Angeles. Both parties were represented by counsel, examined and cross-examined their own and each other's witnesses and filed post-hearing requests and briefs. Those filings were completed by April 5, 1973.

The Issues:

The Respondent's essential defense flows from the immunities of the First Amendment to the Constitution forbidding governmental action which might abridge the right of free speech.^4/ The article it offers for sale, Brentwood Research Report No. 43 (exhibit C-8), is an 18-page booklet. Since this is in the form of the printed word, Respondent claims certain First Amendment protections.

Thus, the issues to be resolved are:

(1) By what standard is the Respondent's advertisement to be interpreted to determine if those representations are made as alleged in the complaint;^5/

(2) If those are found to have been made, are they factually and materially false as they relate either to the contents of Report No. 43 or the results of employing the method described; and

(3) Bearing on both of these questions is the extent to which First Amendment protections are available to the Respondent.

Regarding the alleged falsity of the representations (2 above), evidence was received on the efficacy of the regimen detailed in Report No. 43 in addition to whether the advertising accurately describes that Report since Complainant argues that Report No. 43 has no constitutional immunity.

The Respondent admits to the use of the mail to conduct its business and that it receives money -- $5.00 a copy for Report No. 43 -- via the mail. No issue exists on these vital points (Exhibits C-1 through C-8 and tr. pages 2-3).

The Applicable Standards :

I) Contentions of The Parties:

Respondent contends that the court approved measure used in interpreting advertisements for a product or device is not applicable in this case because the printed word is put up for sale. It argues in its brief that any representation alleged to be false must be limited to the question of whether the advertising is substantially accurate in describing what the report contains and not whether the regimen described in that report will bring about the results touted. The basis for this is the Respondent's right under the First Amendment to sell its report through the mail. Further, those representations must be measured as to their effect on the average reader and not one of a lower ability and, Respondent claims, the average overweight reader would not be taken in by the hyperbole of the advertising copy. Any standards less than these would violate the First Amendment as unduly inhibiting the free dissemination of books or ideas. Additionally, even if the allegations in the complaint are proved, Respondent claims that strictures of the First Amendment require that the Postal Service show that Respondent knowingly misrepresented the character of the report offered for sale, that is, the Complainant must also prove scienter.

For these propositions, Respondent analogizes its case to that involving the sale or distribution of obscene materials where First Amendment protections and requirements are available against criminal and civil actions. Complainant disputes this comparison -- obscenity vis-a-vis misrepresentation -- on the essential point that civil prohibitions to counter deceptions are aimed at preventing consummation of a fraud and an alleged deceiver does not have the broad initial immunity of the First Amendment. This feature distinguishes those statutes and their application controlling obscene matter from those involving misrepresentation. Governmental control over the sale or distribution of pornography acts on a seller and a buyer willing to do business together and is thus restraint on transactions which those parties -- but for the control -- might otherwise accomplish, even if no purchase is involved and it amounts only to one gawking at another's picture in a gallery. The First Amendment, to paraphrase Complainant's argument, prevents this governmental control from being arbitrary. This rationale has no application to deception.

II) Conclusions as to The Standards:

In a case involving misrepresentations, one party is being duped. He would not, it may be assumed, transact any business but for the misrepresentation. ^6/ For this reason ". . .the First Amendment right to freedom of speech does not go so far as to grant a person a privilege to mislead the public by means of false commercial advertising (case citation)", Lynch v. Blount , 330 F. Supp. 689,694 (1971), affirmed on appeal, 404 U.S. 1007. This is a very natural extension of Justice Holmes' holding, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," Schenck v. United States , 249 U.S. 47,52 (1919).

Postal laws against fraud have long since been recognized as firmly established and procedures to administratively adjudge and enforce these laws have withstood the challenge of unconstitution- ality as being a form of censorship or as imposing a prior restraint on an otherwise lawful activity violating the First (free press), the Fifth (due process), the Sixth (jury trial), and the Eighth (unusual punishments) Amendments. See Donaldson v. Read Magazine , 333 U.S. 178 at 189-190 (1948), U.S. Postal Service v. Beamish , 466 F.2d 804,807 (1972), and cf., Cherry v. Postmaster General ,

272 F. Supp. 982, 985-986 (1967). Thus, I conclude that impressing these laws (39 U.S.C. Section 3005) on the facts of this case as described below does not render that application unconstitutional. See Davis, Administrative Law Treatise , Section 20.04. The ad has no constitutional immunity which would permit misrepresentation.

The standards which advertisements must achieve have been judicially established. The rule of cavent emptor has been abolished because the purpose of the various statutes enforced by the Federal Trade Commission or the Postal Service preventing the use of misleading statements in advertising is to protect the public and not to punish the wrongdoer. This purpose is implemented by striking down those ads having a capacity or tendency to deceive, i.e., when there is a fair chance that a reader will be misled. F.T.C. v. Sterling Drug, Inc. , 317 F. 2d 669, 674 (1963), Lynch v. Blount , above, at 695; and this rationale requires no showing of intent to deceive because a criminal statute is not being enforced nor is punishment its end.^7/ On the contrary, "People have a right to assume that fraudulent advertising traps will not be laid to ensnare them," Donaldson v. Read Magazine , above at page 189.

Leading up to that conclusion, the court found that ads may be composed of sentences that were literally true when considered separately but still the ad as a whole could be completely misleading. This could result from omitting things that should be said or the composition could be in such a format to purposefully mislead. ^8/ And while some "acute and sophisticated readers" would not be fooled, the judgment of the existence of fraud must be determined on the effect of the ad on the ordinary mind. Donaldson v. Read Magazine , above 188-189 (see also foot note 5 above). This so-called "ordinary mind" is the denominator fixing that segment of the populace which the laws against bamboozlement seek to protect:

"Unlike that abiding faith which the law has in the 'reasonable man,' it has very little faith indeed in the intellectual acuity of the 'ordinary purchaser' who is the object of the advertising campaign." F.T.C. v. Sterling Drug, Inc. , above 674. The thread of Respondent's argument to raise this denominator is too tenuous to support its conclusion. It relies on Roth v. U.S. , 354 U.S. 476, 489 (1957), and Butler v. Michigan , 352 U.S. 380 (1957) which hold that matter cannot be deemed obscene unless it -- among other things -- violates contemporary community standards.

Statutes defining obscenity as that which tends to incite or corrupt the most susceptible of the youth necessarily foul the court approved definition for they do not account for the remainder of the community and reduce the reading level to that which is fit for the most corruptible of children. That reduction is prohibited by the First Amendment.^9/

By the same token, Respondent claims that the Postal Service is prohibited from reducing advertising for a book (its Report No. 43) to the level of the most ignorant and gullible persons. It offered proof to establish who the average person is in the community of obese and overweight, to show what the standard of advertising is within that sector, and how the ad at bar measures against that standard. These persons in this sector, it is claimed, would not be so completely taken in by the ad.

The short answer to this is that no one possesses the right to deceive and there is no such right within the fiery ambit of the First Amendment, see Schenck v. United States , above. Therefore, the protections and requirements of that Amendment do not enclose an ad where obscenity is not being tested. The question in this and all cases under 39 U.S.C. Section 3005 is to determine whether the product offered for sale is factually and materially the same as that which it is claimed to be in the ad regardless of the format of the ad. As noted above, the ad stands alone. It possesses no First Amendment immunity and to permit it to inherit any right from Report No. 43 would be to allow the Respondent to fool some of the people some of the time. Surely, it would deny others the law's protection all of the time. On the other hand, if an incredulous one is not be be deceived, neither will anyone else. There is no averaged, community, or statistical standard loose in this field.

"It is the excessive and flamboyant language in the advertisement designed to capture the attention of the unwary, the unsophisticated, and the frustrated, that has framed the instant issues." Baslee Products Corp. v. U.S. Postal Service, et al , U.S. District Court, District of New Jersey, Civil Action No. 1469-72, decided March 19, 1973.

That case involved a diet plan plus a worthless pill. The result of Respondent's argument here is surely anomalous in that the standard of advertising to protect the gullible would fit those instances where a product is offered for sale but a higher standard would be required if only the printed word is to be bought. It is a distinction without a difference. Based on this conclusion, the testimony of Respondent's expert on advertising aimed at defining what the community standard is within the nation's fat (the ad's audience), how they would interpret the ad, what the average obese person in that community would believe, and how the ad would measure against this constructed standard will not be considered in reaching a decision.

The standard which the ad must achieve is the same whether it is a book or pill that is to be sold. The ad, while selling any product, must honestly, without guise or guile, inform the purchaser of what he is buying. If one's opinion on any subject in the form of a book is being sold by an ad, it must so state. That is as far as the ad must go. The opinions themselves will not be tested for their truth or falsity before this agency, Parker Publishing Co. , P.O.D. DOcket No. 3/80 (1972). In that case, the Respondent, seeking the reversal of the hearing examiner's adverse decision, argued to the Judicial Officer of the Postal Service that:

"The distinction between selling a worthless product and someone's opinions in a book is crucial and the Postal Service cannot legitimately jump from the advertisement to the value of the [authoress'] techniques. Respondent is selling someone's opinions and as long as it advertises those opinions for what they are, the truth or falsity of [the authoress'] writings is irrelevant ." (Emphasis mine.) Respondent's Statement of Exceptions to the Decision and Supporting Brief, page 27.

The Postal Service policy by that decision was established to fix the issue in those cases where books are offered for sale through the mail to be whether the "advertising misrepresents the book whose purchase it is soliciting," Parker Publishing , above, Order Denying Reconsideration, March 9, 1972, page 6. Thus, if the ad misrepresents an author's opinion as fact, 39 U.S.C. Section 3005 comes into play. In Dorset House , P.S. Docket No. 2/14(1973), Respondent's diet plan, "The Remarkable Ration Diet," in the form of a booklet (without any pill or device or other nostrum) was distinguished from the Parker Publishing rationale by the Judicial Officer as follows (page 8 of mimeo decision dated June 13, 1973):

"However, a reading of the advertisement shows that unlike Parker what is being sold is not a 'book', but a program of weight reduction."

And in B-Beautiful Method , P.S. Docket No. 1/181(1973), Respondent's argument that its ad for a booklet describing an exercise technique for the enlargement of the breasts was mere expressions of opinion met with no success for the Judicial Officer held (page 3);

"In Parker the advertisement specifically offered a book for sale and described its content. Here the advertisement carefully refrains from stating that a book or booklet is involved . . .

* * * * *

"The advertisement clearly and unquestionably represents that the product Respondent sells will produce definite benefits as charged in the complaint."

The last cited cases raise the question of when and under what circumstances may the Postal Service inquire into the validity of the contents of a booklet to be sold -- the written word standing alone -- without transgressing the commandment in the First Amendment to avoid an unconstitutional application of a proper statute.

Clearly, if an ad misdescribes a book, a mail-stop order may issue. Respondent concedes this. It constructs its theory of this case on that proposition: No mail-stop order is possible unless the Complainant proves a variance between the representations in the ad and the contents of the booklet. But otherwise those contents, according to Respondent, are sacrosanct.

Complainant insists that Report No. 43, because of the manner in which it is presented in the ad, is not so protected. Rather it is held out to be a program of weight reduction and should be treated as if it were a diet pill. Complainant contends that Respondent is selling facts not opinions. That is the holding out in the ad and, therefore, Report No. 43 must substantially mirror that image.

Both of these approaches are supported by the Postal Service precedent and it remains for the facts to reveal which theory is to be sustained and which is to fall. The Advertisement and Its Representations :

Respondent's advertisement (Exhibit C-1 and attached as Appendix A hereto) is a single sheet, 8 1/2" x 11", printed on one side and is cast in newspaper format. Its masthead reads:

THE BRENTWOOD BULLETIN Announcements of Interest to the General Public

The headline proclaims:

AMAZING NEW WAY TO LOSE WEIGHT

Then it explains that the so-called 'Brentwood Method' is the easiest, fastest, most inexpensive way to lose weight. There are no hard-to-follow diets, no pills to take, no gadgets to buy, no calories to count, no exercises. All a person need do is follow the easy directions and he can lose a pound a day until the wanted weight is reached. The 'Brentwood Method' will keep the lost pounds off.

The foregoing is paraphrased from the introductory paragraphs of the ad. The 'Brentwood Method' is further described in rather glowing terms in the main body of the ad consisting of three columns.

The best of all the attributes is said to be ". . .this method is 100% safe. And it provides all the nutrients while the extra pounds and inches disappear."

It explains that a weight gain is due to the body's failure to burn up all of the calories consumed. It is the unneeded calories that collect in the form of "ugly fat." But its research has uncovered an "unbelievably easy way to get rid of that fat and keep it off." The ad goes on to criticize other ways of accomplishing this such as tiring exercises, drugs and pills, reducing aids and complicated diets.

This leads to Respondent's "amazing tonic" which enables you to burn up excess fat, bring your weight down to normal and keep it there. "All you do is take this tonic according to our simple directions. There is nothing else to do and nothing else to buy."

The ingredients of the tonic may be purchased locally since, the ad says, "The Respondent does not sell the tonic." It only takes a few minutes to make the tonic and a purchaser will spend less than $2.00 for each pound lost. The reader is then told that the tonic is 100% safe, "Ask your doctor. He'll confirm it." And the method has been tested under medical supervision with "persons from all walks of life with all types of weight problems."

Five examples from supposed users are given. These found "when all else failed" that the Brentwood Method works. They averaged a weight loss of about a pound a day and had no problem losing from 10 to 40 or more pounds. Following the method's instructions, they were able to keep these pounds off.

The final column of the ad impresses the reader with the wonderment of getting rid of extra calories without impossible-to- follow diets or starving while others feast.

It is said that everything that Respondent's research and medical tests have uncovered is in Report No. 43. "Results are guaranteed. If this method is not everything we say it is -- if you do not lose those pounds as promised -- return the report for a prompt refund."

The report costs $5.00 and the ad concludes with, "It is never too late to get a slim, trim figure."

A box inset prominently at the upper left-hand side of the ad states that Respondent provides information on the subjects of financing and health and derives its income solely from the sale of its reports and from no other source.

Respondent admits that the ad makes five of seven representations alleged in the complaint at least to the extent that these five are practically or substantially repeated in Report No. 43. These are that the Brentwood Method (the following numbering corresponds to the itemization of the complaint); .

3(a) will create a weight loss of a pound a day until the desired weight is reached; .

3(d) provides all the nutrients essential for good nutrition; .

3(e) produces a physiological effect on metabolism; .

3(f) is a scientifically sound and effective remedy for obesity; and .

3(g) can be adapted to maintain the weight loss.

Even without the Respondent's admission that these claims appear in both the ad and the booklet, these representations are clearly within the ad's message to any reader.

Respondent disputes the existence of the following two representations alleged in the complaint; .

3(b) that the weight loss does not involving dieting.

Complainant claims that the qualifying words and phrases attached to the term diet or its equivalent throughout the ad do not eliminate the implication that no diet whatsoever is required. Respondent insists that these qualifiers clearly indicate that the claims in the ad are substantially the same as in the booklet itself, i.e., simply drink the tonic; there is nothing else to do and nothing else to buy.

Literally, what the ad claims is true. The Brentwood Method is simple -- just drick the tonic and don't eat which are the exact directions in Report No. 43. But, in the context of the ad, the Method is an "amazing New Way to Lose Weight" that is ". . . the easiest . . .", and which does not involve, as quoted from the ad,

hard-to-follow diets

calories to count

a complicated diet difficult to follow

impossible-to-follow diets

starving

And it will work when all else fails as recounted by the experience of a Mrs. J. M. who had apparently been on and off diets unsuccessfully since she could remember.

All of this is put forth -- in considering the entire ad -- because the tonic burns up excess fat and there is no need to employ any other method or system to lose weight including dieting. The adjectives attached to "diet" in the ad merely describe what is well known. Reducing diets are difficult to follow and everything else said about them in the ad. The Brentwood Method claims to relieve a user from all the uncomfortable methods and I find this representation alleged by Complainant is justified. The ad holds out that one following the Brentwood Method would expect to lose weight without dieting.

Finally, Respondent disputes the alleged holding out in the ad that the 'Brentwood Method' is 100% safe (item 3(c) in the complaint). This, it claims, should not be interpreted as meaning that the Method is absolutely or perfectly safe for all persons but otherwise it is a true statement and substantially repeated in Report No. 43.

This statement concerning safety is twice said in the ad and declared to be the Method's "best" attribute. The ad also says tat a doctor will confirm the safety and that the Method has been medically tested.

I find that the ad represents the Brentwood Method to be, at least, not harmful to any user. The phraseology and assurance of a doctor's imprimatur clearly hold out that any person may follow the Method without fear of injury.

Thus, all of the allegations in the complaint concerning the ad's representations are either admitted or proven. I find the ad to be so composed as to convince any reader that Brentwood Research has discovered a new way to lose weight without any discomfort. It is safe, fast and easy. It is guaranteed to work. The format, a newspaper style which is used to report the factual happenings, and the wording, direct and positive, are designed to assure any reader that the Brentwood Method is all that it is said to be. If every other method has failed any reader, this one won't. It is no good to claim that the ad offers only a mere opinion, this one won't. It is no good to claim that the ad offers only a mere opinion ^10/ of a possible way to lose weight, quickly, easily and safely. This ad holds these results out to be fact to any potential user.

Respondent, by this ad, offers a program or method of weight reduction. What could possibly be considered as disclaimers. "We do not sell this tonic." And, "Brentwood Research operates to provide information and counsel . . ." hardly overcome the driving thrust that it has a surefire way to lose weight wondrously for only $5.00 plus the cost of the tonic. I find that the overwhelming purpose of the ad is to convince a reader that the advertised results of using the Brentwood Method will occur without fail and can be used without reservation.

If a purchaser does not receive substantially what is actually offered by this ad, he has been misled. The seeds of that deception are sown by the ad which does not hold out any mere opinion for sale but fact. Just as the provision for a refund to any unsatisfied customer would not stunt the growth of deception, neither can reliance on the First Amendment save a deceiver from a testing of the real nature of the product being advertised for sale. C.F., Exposition Press, Inc. v. F.T.C. , 295 F 2d 869 at 873 (1961).

The essential difference between the Parker Publishing case and this proceeding is that in the former the ad quoted extensively from the book to be sold and told the ad's reader what he could expect to find in the book, namely, the authoress' experiences and techniques. The stress was on the book and its content. In this case, the glaring message of the ad is the sure results to be obtained from following the described regimen. Compared to this, the mentions of the booklet in the ad pale to mere passing wisps. The purpose of the ad -- to convince the reader to part from his money -- is to sell a guaranteed result, not the booklet. Respondent may not be heard to complain at this point if those results, as they are represented in the ad and actually in Report No. 43, are tested against the evidence to determine whether the mail-stop order should issue. The Alleged Falsity of the Representations :

Report No. 43 (Exhibit C-8) is an 18-page booklet bound in notebook fashion. The "Brentwood Method' is set forth on page 6:

". . . Mix one-half cup of grape juice and one-half cup of apple juice. Drink it along with one large or two small bananas. Chew the banana thoroughly before swalling . . .

* * * * *

"Do this morning, noon, and night instead of eating your regular meals . EAT NO OTHER FOOD." (Emphasis in original.)

The user is to drink three more glasses without the banana and at any time he gets hungry. He may drink as much of the tonic as he wishes. Leading up to the Method is five pages of introduction. These deal with the danger of being overweight, a criticism of high-protein diets (the Brentwood Method is very low in protein), a statement that the Method is the fastest and safest way to reduce, and a description of the mental attitude necessary for a successful pursuit of the Method.

Then a note of caution: The Method must not be followed by diabetics or persons with low blood pressure until they have consulted with their doctors. "All others will find this method 100% safe." (Page 5, Exhibit C-8.)

Following the Method itself, labelled as "Step One: Get the Pounds Off Fast." are the types of juices to be used and those to be avoided. Then an explanation of how the Method works is given. After three or four days on Step One, as the body is being "deprived of nutrition," it will begin to live on its own substance but not indiscriminately. The diseased, damaged, aged or dead cells will first be decomposed and burned. "Step One" is described as the burning of the rubbish. But the protein in the body is being used and re-used over and over where they are needed.

Next, in Section VI of the Report, the user is told not to be alarmed if he notices that he has

foul breath

diarrhea

frequent urination

offensive gass from the rectum

headaches

aches and pains

coated tongue

dizziness

skin eruptions

body areas covered with perspiration. These are signs that the rubbish is being burned and he should rejoice. Most persons experience none or just one or two of these problems and they will stop in a few days, says the Report.

Then comes "Step Two." After being on the first part of the program for a period of time (one day for each pound you need to lose), the body will signal it is through losing weight by a "sudden and very imperative feeling of hunger." When this happens -- and the user is not to count those days when he has sneaked any other regular food -- "Step Two" commences. That is, a glass of the tonic without the banana taken 20 minutes before meals.

"That's all there is to it." Step One get the pounds off and Step Two keeps them off. The Report concludes with a section on questions and answers and a summary on the procedure to be followed.

Comparing the ad's representations to the contents of the booklet to determine whether there is a variance between the two -- on the assumption that Respondent's theory of the case is correct -- I find wide gulfs.

First, that the ad claims no dieting, insofar as that is an element of the Method being the easiest way to lose weight, finds no support in the booklet. Drinking only the tonic until the user's desired weight is attained is barely one step removed from total starvation. Taking the tonic "according to our simple directions" as the ad says does not sufficiently inform the reader that those directions mean take only the tonic. The ad misrepresents the directions in the booklet. Save starvation, I find this diet would be most difficult for any person obese because of overeating.

Second, that the Method is held out to be safe is not borne out by the booklet. The ad clearly implies that all overweight persons may use the Method. The Method, however, says that persons falling into two classes should not participate: diabetes and those with low blood pressure. And the problems that may occur after a few days on the tonic as listed above such as diarrhea, headaches, aches and pains, dizziness and skin eruptions can hardly be considered as concomitants to a safe and easy diet. These are symptoms that fling persons into a doctor's office. Thus, the image of the perfect way to lose weight painted by the ad is splotched on a glance at the model itself. I find, on this point, that the ad misdescribes the Method.

Third, that the Method provides all the nutrients essential for good nutrition is not what the booklet says. The ad implies that these nutrients will be contained in the tonic and I infer from this that it is an aspect of the Method's safety and completeness. But the tonic does not. Rather, according to Report No. 43, the body will supply the ingredients like reusing protein tissue. Hence, the ad omits a necessary aspect of losing weight in the prescribed regimen.

These three elements do not encompass all of the alleged misrepresentations in the ad. But standing alone they are substantial and material deviations from the booklet itself to impel a finding that any person knowing what the booklet said about the diet, its safety, and its nutritional value would probably not proceed. Certainly the ad should have been more explicit on these points to dissolve these variances which I find to exist.

Resolving the case even on the Respondent's theory, I would conclude that, because of the variations between the claims for Report No. 43 and the report itself, Respondent is engaged in a scheme or device to obtain money through the mail by means of false representations and an order permitted by 39 U.S.C. Section 3005(a)(1) and (2) should be issued.

Through its medical witness, Complainant attacked the efficiency and validity of the Brentwood Method as a regimen to lose weight quickly and permanently. Dr. Sheldon Margen is a licensed physician and surgeon in California. He received his medical degree in 1943. Presently he is a Professor of Human Nutrition and Chairman of the Department of Nutritional Sciences at the University of California, Berkeley. He is certified as an internist by the American Board of Internal Medicine (1951) and as a clinical nutritionist by the American Board of Nutrition (1967). His qualifications (Exhibit C-9) are impressive and lay to rest any question on his expertise concerning the subject at bar. Respondent raised no objection except that Dr. Margen stopped his private practice in July 1972 and the treatment of obese patients -- as distinct from the study of that condition -- was never a major part of his practice.

The Doctor explained the three parts of body composition as:

1. Bone mass.

2. Lean body mass - protein tissue such as the liver, kidney, brain, muscles including the heart, etc.

3. Fat or adipose tissue.

And the body has three sources of energy:

1. Carbohydrates

2. Protein

3. Fat

Each yields different amounts of calories (the energy intrinsic in a molecule) by the metabolic process of breaking down the tissue. Carbohydrates and proteins will each yield four kilocalories of energy but fat yields nine kilocalories. The sole and exclusive purpose in a weight reduction program is to get rid of the fat tissue because obesity is defined as an excess amount of fat tissue in a body depending on a person's age and sex. The difference between being obese and overweight is shown by the example of a weightlifter. He will be frequently overweight but not obese because their weight increase (over the accepted norm) is not due to excess fat tissue.

To reduce the amount of fat requires a negative caloric balance. That is, the number of fat calories expended per day must be greater than the number of those calories taken in. The Doctor pointed out that if the negative balance is caused by too little protein ingested, weight loss will occur at a fast rate but the person can build up excessive fat tissue. Protein tissue yields less energy than fat tissue, therefore, more will have to be broken down to fill the body's needs and, if this protein is not being replaced, the body will lose protein weight rapidly in addition to the fluid loss that occurs with any diet.

The Doctor characterized the Brentwood Method as lacking in a scientific basis and as potentially extremely dangerous. This is because the tonic has a virtual zero protein content. A user must take at least three glasses of the tonic a day according to the directions but as much beyond that as desired. The Doctor calculated that six glasses a day will result in the ingestion of 990 calories and 4.2 grams of protein (Respondent's Doctor counted 7.2 grams, Exhibit R-3, but this is admitted as not a significant difference) while any "decent reducing diet" provides 80 to 90 grams of protein that should be ingested.

Taking in 20 glasses a day, each containing 120 kilocalories yields 2400 kilocalories resulting in a possible positive caloric balance. Fat tissue will build up slowly while the body loses weight rapidly because of the negative protein (nitrogen) balance. Of this the Doctor stated, ". . . it is as unphysiological a situation as one could hope to have in a patient or person" (tr. page 18). But a person would lose about a pound a day (tr. page 47).

When the lean body mass (protein) breaks down, first the liver goes, then the spleen, and then the muscles (tr. page 19). Initially, on the tonic alone, the user will notice no change in the way he feels. But the body's immunization mechanism would go down and he would be more susceptible to infection. Then the muscle mass begins to be lost and fatigue sets in. And then the kidneys would begin to fail in their operation which could lead to death (tr. pages 44-46) and there would be no clinical manifestations or external evidence of this (tr. page 78). Other implications which could result from following this method would be postural hypertension, nausea, gout, anemia, retinal impairment, hair loss, cavity and muscle cramps and emotional disturbances, and this list is not exclusive (tr. page 58). Serious adverse effects would occur in two to four weeks on the tonic alone since about a half pound of protein tissue would be lost each day (tr. page 80).

The Doctor testified on cross-examination that certain types of bizarre diets have been tested under close, medical supervision such as starvation diets and ketogenic (low calorie, high fat) diets. But he would not retreat from his stand that these diets (low protein) are not recommended (tr. pages 66-67) and are experimented with under strict supervision.^11/ One article introduced by Respondent (Exhibit R-1) describes certain successes with low calorie diets (including ketogenic and fasting) but it also indicated medications to be prescribed to control known adverse effects (Exhibit R-1, page 188).

Doctor Margen stated that no diet should be administered except under medical supervision but, because of the maldistribution of medical care in this country, this is not possible.

Dr. Peter G. Lindner was called by Respondent. he is a medical doctor practicing in South Gate, California. He has been treating obese patients for fifteen years and the last six or seven years have been devoted exclusively to treating some 3000 patients. He has written several books and articles on obesity and there is no question that he knows well his field.

He testified that a medically approved, balanced diet is the ideal method to losing weight. But it is spectacularly unsuccessful because the patient will not stay on such a diet. He is too used to overeating.

In the opinion of this Doctor, an obese person following the Brentwood Method would lose approximately a pound a day on the average (tr. page 103). However, the longest a person would be able to take the tonic alone would range from one week to ten days (tr. pages 104-105) because it doesn't taste good. Because he couldn't stay on the tonic for extended periods, a user probably wouldn't be harmed (tr. page 107). And if he then went to Step Two (the tonic 20 minutes before eating) he would continue to lose at a slower rate and then, after a while, could go back to Step One, tonic alone (tr. pages 105-106).

He admitted that the tonic does not provide ideal good nutrition but would not harm an obese person who took it for limited periods (tr. page 112). And probably, the lack of protein would not have a serious effect on that person over a two-week period (tr. page 113).

On cross-examination, the Doctor testified that he would not use the Brentwood Method and it is not one any doctor would prescribe (tr. pages 122-123). If a patient were unable to remain on a balanced diet and stopped losing weight, the Doctor would prescribe a ketogenic diet (meat and fat -- no fruits or vegetables) to overcome the patient's resistance and convince him to continue (tr. page 125), but he would want to see such a patient on a ketogenic diet or the Brentwood Method assuming that was prescribed at least once a week (tr. page 131). But the Doctor was not concerned about any adverse effects from following the Brentwood Method because "I don't think such a man exists" (tr. page 131) who could stay on this diet for more than five days (tr. page 130). If hypothetically he could, the Doctor would be concerned after two weeks (tr. page 132) because the problems described by Dr. Margen would have begun in that time and would appear in a month's time (tr. page 135). Realistically, no person could tolerate this diet for 10 days and he would lose about 10 pounds at the most; and on Step Two, their weight would be maintained or a little bit more lost (tr. page 137). But it is more probable that these people would stuff themselves when they come off the diet (tr. page 139).

With reference to the ad's claim that the Method is 100% safe, "Ask your doctor," Doctor Lindner testified that the tonic contains fruit juices and bananas which are at least harmless. The tonic is safe in that it contains no poisons and probably safer than a lot of prescription drugs used in reducing techniques (tr. page 147).

Following Dr. Lindner's testimony, Respondent presented a witness expert in advertising. Although his testimony will not be considered for the purpose tendered (see page 10, above) he stated that the hallmarks of those persons within the community of the obese is their desperateness to lose weight and their skepticism of the claims in weight reduction programs because of their experience int trying to get rid of fat (tr. pages 156-157). Thus the adverti- ser, in order to overcome this resistance, must exaggerate his particular regimen. The deeper the doubt, the more the advertiser must rely on hyperbole which, in turn, reinforces the skepticism. Thus, while the educated, experienced, and sophisticated person would not respond to the ad's message or, as the Complainant sees the point of this testimony, the more the advertiser lies, the less he is believed, those desperate in the audience may well be taken in. As to them, the exaggeration and hyperbole have exceeded the admitted loose bounds of propriety in the advertising field and have entered the realm of misrepresentation where, because of them, I find this particular ad to be lodged.

Although Respondent's brief and propsoed findings of fact and conclusions of law are devoted to the proposition that the First Amendment protections immunize it from the application of 39 U.S.C. Section 3005, as an affirmative defense it attempted to counter the Complainant's allegations that the ad misrepresents the Brentwood Method itself. Dr. Lindner did testify during direct examination on the subjects of whether the Brentwood Method works (tr. pages 103-107, 116-117), its safety (tr. page 107), and whether all necessary nutrients would be provided (tr. pages 107-113). And, Respondent's cross-examination of Dr. Margen dealt extensively with what may be termed as bizarre diets, their use and efficacy, and how and where the Brentwood Method compares with these. Therefore, these issues were fully tried out, if not willingly certainly by consent of the parties.

Nor could I find that this line of evidence on the question of whether the Brentwood Method is actually what it is claimed to be by the ad surprised Respondent or that the theory of Complainant's case was unclear. In its list of proposed witnesses filed in November 1972 -- almost two months prior to trial -- Respondent indicated that Dr. Lindner would testify that "the booklet in question is nutritionally and medically reasonably accurate and that the advertisement for the booklet is a reasonably fair one."

That list of witnesses also indicated that one Lloyd Spinar, who is apparently the Respondent, would testify on the accuracy of the ad among other things. He did not appear. Nor did Respondent make any move to continue and transfer the hearing to any other city where any of its fifteen proposed witnesses it sought to subpoena could have testified in its behalf. The request for those subpoenas was dismissed by order of November 27, 1972, for lack of authority to issue them, see 39 C.F.R. Section 952.19, the Rules of Practice. There is nothing in this record to indicate that any of these witnesses would appear only under compulsion and the expense of their appearance -- whether forced or voluntary -- would be the same to Respondent. The inference, then, is that they had nothing to offer to benefit the Respondent's case. Cubertson v. The Southern Belle , 18 How (U.S.) 584, at 588.

Based on this testimony and the record as a whole, I find that:

(1) Following the 'Brentwood Method' will not result in the loss of one pound a day until a desired weight is reached because it is virtually impossible to remain on this regimen beyond 10 days and the ad's claim that up to 40 pounds or more could be lost or as much as a person wants to lose misrepresents what the Method can actually attain. [Complaint, para. 3(a).]

(2) Following the 'Brentwood Method' and drinking only the tonic to lose the weight initially involves a strict, almost impossible, diet which is extremely difficult for any normal, obese person, and the ad misrepresents the Method in this regard. [Complaint, para. 3(b).]

(3) The 'Brentwood Method' is not 100% safe as claimed and can result in severe sickness and death despite its containing no poisons as such. [Complaint, para. 3(c).]

(4) The 'Brentwood Method' does not contain those nutrients required for good nutrition as that is claimed in the ad. [Complaint, para. 3(d).]

(5) The 'Brentwood Method' will produce an effect on the body's metabolism but not in the sense that the ad claims because it is not fat tissue that will be burned up and lost. [Complaint, para. 3(e).]

(6) The 'Brentwood Method' is not a scientifically sound or effective remedy as claimed for the normally obese person and no doctor would prescribe it except under his strict supervision. [Complaint, para. 3(f).]

(7) The 'Brentwood Method' cannot be adapted to maintain a weight loss as the ad claims because, to the normally obese person, Step Two would actually result in that person glutting himself. [Complaint, para. 3(g).)]

CONCLUSION AND RECOMMENDED ORDER:

On the findings above, I conclude that the Respondent is engaged in a scheme or device to obtain money through the mail by misrepresenting in its advertisement what the 'Brentwood Method' is and can accomplish.

Proposed findings and conclusions of the parties are adopted to the extent that these are embodied in this decision. Otherwise, they are rejected as not supported by the law or the evidence.

I recommend that an order under 39 U.S.C. Section 3005 and in the form attached be entered.

_________________

1/ By complaint filed September 20, 1972.

2/ These actions may follow if it is found "Upon evidence satisfactory to the Postal Service that any person is engaged in conducting a scheme or device for obtaining money. . .through the mail by means of false representations, . . ." 39 U.S.C. Section 3005(a)(1) and (2).

3/ By answer dated October 17, 1972, and filed October 24.

4/ "The United States may give up the Post Office when it sees fit,but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues...", Milwaukee Pub. Co. v. Burleson , 255 U.S. 407 at437 (dissent of Justice Holmes).

5/ In the leading case on this question ( Donaldson v. Read Magazine , 333 U.S. 178) the standard applicable is the affect of the advertising material on the ordinary mind. Because of the First Amendment implications, Respondent contends that a tighter standard must be used.

6/ Under 39 U.S.C. Section 3005, a mail-stop order may be issued against a sender if he and the receiver are engaged in a scheme to defraud a third person not a party to any sale or even receiving a product in the mail, U.S.A., et al v. International Term Papers, Inc., et al , F 2d (1973), U.S. Circuit Court of Appeals, First Circuit, No. 72-1397, decided May 3, 1973.

7/ Respondent's reliance on Manual Enterprises v. Day , 370 U.S. 478, to show a need for intent to deceive is misplaced. In that case, the then Post Office Department was relying on a criminal statute to enforce civil non-mailability of alleged obscene matter, and scienter was made a requirement (18 U.S.C. Section 1461). See the opinion of Justice Brennan at pages 510-511. No such reliance is present in this case. And see Lynch v. Blount , at 693, for a cogent discussion on the removal of scienter from the postal laws dealing with misrepresentation by a 1968 amendment to those laws.

8/ Regina Corp. v. F.T.C. , 322 F 2d 765, 768, struck down the innuendo as well as the outright lie used by advertisers, and F.T.C. v. Sterling Drug, Inc. , above, 674-675, condemned the half-truth, the non-contextual statement, and the ambiguity as methods of deception. In S.S.S. Company v. F.T.C. , 416 F 2d 226 (1969), the court approved a requirement that the ad in question affirmatively disclose that the preparation advertised would be worthless to the great majority of persons experiencing tiredness symptoms which the preparation was supposed to alleviate.

9/ Unless special laws are enacted to deal with these special areas, U.S. v. Pellegrino , 467 F 2d 41. There the question was whether an ad, directed to the general populace, was obscene under constitutional standards (page 43). The court distinguished special regulations governing commercial advertising not involving the question of obscenity. See also Hiett v. U.S. , 415 F 2d 664 (1969) at pages 671 and 673 on this point.

10/ Opinion -- what is thought on any matter or subject judgment or belief resting on grounds insufficient to produce certainty. The American College Dictionary , 1970 (Random House)\

11/ Respondent was to submit a late-filed exhibit to show that these diets need not always require strict supervision. No such filing was made.