In the Matter of the Complaint Against

B-BEAUTIFUL METHOD,
Post Office Box 1231,
Radio City Station at
New York, New York 10019

P.S. Docket No. 1/181

David J. Knight Administrative Law Judge

Thomas A. Ziebarth, Esq.,
Consumer Protection Office, Law Department,
U.S. Postal Service, for the Complainant

Lee Hirsey, pre se, Respondent

INITIAL DECISION OF DAVID J. KNIGHT
ADMINISTRATIVE LAW JUDGE

By complaint filed October 4, 1972, the Consumer Protection Office of the U. S. Postal Service alleges that the Respondent, B-Beautiful Method of New York City, is engaged in a scheme or device to obtain money through the mail by means of false representations. It seeks an order requiring that mail sent to Respondent be returned to the sender by the postmaster at New York City and forbidding the payment of any money order drawn to Respondent.^1/

Essentially Complainant contends that Respondent's B-Beautiful Method is advertised to the public representing that its use will increase the size and firmness of the user's breasts; is a new approach to bosom development; will add five, full, firm inches to the bosom, and that all this may be accomplished quickly and easily. These representations are all alleged to be false. The Method costs the subscriber $2.00.

On October 26, 1972, the Respondent answered the complaint indicating that the product is not misrepresented in the advertise- ments. It does not deny the use of the mail. An attempt to settle this proceeding by consent of and between the parties failed and hearing was held at Washington, D. C., on December 27, 1972. B-Beautiful Method is operated by Lee Hirsey who represented himself, cross-examined the Complainant's witness, testified and filed proposed findings of fact and conclusions of law on January 26, 1973.

The Issues

It must be determined how the ordinary reader^2/ would interpret Respondent's advertisement and whether it may be construed as alleged in the complaint; whether these representations are false; and to what extent the First Amendment of the Constitution preventing the abridgement of the press protects the Respondent's product, B-Beautiful Method, since that Method is a booklet.

The Evidence and Findings of Fact

Through a U.S. Postal Inspector, Michael W. Ryan, six copies of Respondent's advertisements were received into evidence. They appeared during the latter part of 1972 in several pulp, "news" magazines about the movie world and confessional periodicals (Exhibits C-1, 2 and 3). The Inspector, using a test name, purchased the Method through the mail for $2.25, the extra quarter to guarantee speedy service.

The ads--all exactly alike and a copy attached hereto as

Appendix A--consist of a headline, one paragraph, a coupon, and a picture of a pretty, big-breasted girl. The headline reads:

AMAZING NEW BOSOM BUILDER

INCREASE BUSTLINE 5 FULL INCHES

And the paragraph is addressed to women not born big-bosomed telling them of an all new approach to development. It's described as fantastic which will enlarge the bustline up to five sensational inches quickly and easily, fully and firmly. If this doesn't happen the $2.00 cost would be refunded.

I find that the reader would interpret this ad as meaning that the B-Beautiful Method would

(1) increase the size and firmness of the breasts;

(2) that this increase could be up to five inches;

(3) that it can be accomplished quickly and easily; and

(4) that the Method is a new approach to bosom development.

The B-Beautiful Method (Exhibit C-8) is a 4 1/4" x 5 1/2", 15-page booklet. On the cover is a picture of a young girl, bikini-clad, holding between her palms a small rubber ball. The caption reads, "Congratulations: In your hands is your key to a more beautiful bustline."

Seven exercises are contained in the booklet. Each one is performed with an ordinary rubber ball, two or three inches around, held between the palms' heels and pressure exerted against the ball. The arms are differently positioned for each exercise. These exercises act on the muscles in and around the chest and the booklet states that the importance to the user is the "feel" or "sense" experienced around the bust. That experience is the key to success. Each exercise is said to affect a different area of the bust or have a different effect on the entire bustline.

The exercises are prefaced by an introduction stating that the system is reliable and inexpensive. The difference between unrewarding and extraordinary results is posture , perseverance and

patience .

Faulty posture will prevent results from developing; perseverance means regularity of exercising; and patience is to encourage women who do not respond to the Method as quickly as others.

The booklet closes with a statement that if no visible results occur within 10 days, the Method may be returned and the cost would be refunded. The last page is a chart to keep a record of develop- ment.

The Complainant's medical doctor testified that a woman's breast consists of fat and glandular tissue. Except for the erector muscle of the nipple, there are no muscles in the breast. Since only muscles are affected by exercises, the regimen in the Respondent's booklet will affect the muscles underlying and around the breast but not the breast itself. On cross-examination, the doctor testified that the recommended exercises are isometric in nature in that one muscle is pressed against another causing tension. Technically, however, a true isometric exercise makes use of no outside device such as the ball in play here. In his experience, the doctor has seen many programs which tend to develop the muscles underlying the breast, some using a spring-loaded hand exerciser or a rubber stretcher--all employing the same principle embodied in the Respondent's program. I find that adding the rubber ball does not amount to a new approach in bosom development.

Respondent Hirsey testified that the use of the ball is new and that it acts as a guide to measure the amount of pressure being applied to the pectoral area. He stressed the importance of posture. Essentially, the inference from his testimony is that when a slumped over woman stands erect--at that moment--her bustline is increased. Better posture and the exercises result in bustline improvement which would be both evidence and continual. And I find, that better posture would quickly improve the bustline appearance.

Based on the medical evidence, I find that the breast--standing along--will not be affected by following the Respondent's exercise program. But, a better posture and toned muscles in the chest area, I find, could give the appearance of a larger, firmer bustline.

Discussion and Conclusions

The evidence indicates that Respondent's program does work to give the appearance of a larger and a firmer bustline but not in the manner in which this program is advertised. The breasts themselves will not increase in size. Thus, the ad, which sells a program to enlarge and firm the breasts misleads the relevant audience. It is too strong and leads the reader down a different course than the result of the program itself. Addressed to women who were not born big-bosomed, the clear import of the ad is that a small breast can be actually made large using the B-Beautiful Method. This is not so.

The advertisement neither accurately describes the exercise booklet which says nothing about any breast enlargement per se nor the results achieved after doing the exercises. The booklet speaks of "bustline-loveliness" as a program of "bustline improvement." Nowhere does it mention bustline or breast enlargement.

The policy established by the Parker Publishing Company case, P.O.D. Docket No. 3/80, is not available to the Respondent since the ad here does not accurately nor truthfully describe what is contained in the Respondent's booklet; and it misrepresents the results to be achieved by following the exercise program since, as a result, the breasts will not become larger. The Respondent also claims the benefit of the Eighth Amendment to the Constitution since a mail-stop order would amount to an excessive fine or a cruel or unusual punishment both of which are proscribed by that Amendment. However, this Amendment speaks to criminal procedures and sentences, Powell v. Texas , 392 U.S. 514, and not to the administrative tribunal.

The Respondent's argument that it is saved because of the refund provision to all unsatisfied buyers is also of no avail. The ordinary reader sees the refund guarantee as an assurance that the product is all that the ad claims it to be, Sauna Belt, Inc. , P.O.D. Docket No. 3/43, October 4, 1972, mimeo page 44.

To the extent that the parties' proposed findings of fact and conclusions of law are embodied herein, they are adopted. Otherwise they are rejected as immaterial or irrelevant.

I conclude that the Respondent is engaged in a scheme or device to obtain money through the mail by means of false representations and I recommend that an order under 39 U.S.C. 3005 in the form attached be issued.

____________________

1/ 39 U.S.C. 3005 permits these actions if it is found that respondent receives money through the mails by means of false representations.

2/ The following is a description of this reader:

"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. , 317 F.2d 669 (1963) at 674.