P.S. Docket No. 1/202
July 27, 1973
In the Matter of the Complaint Against
LYDIA FELDMAN
8228 Sunset Boulevard at
Los Angeles, California 90046
P.S. Docket No. 1/202
David J. Knight Administrative Law Judge
Daniel S. Greenber g, Esq.,
Consumer Protection Office, U.S. Postal Service,
Washington, D.C., for the Complainant.
David M. Brown, Esq.,
Fleishman, McDaniel, Brown & Weston,
Los Angeles, California, for the Respondent.
INITIAL DECISION OF DAVID J. KNIGHT,
ADMINISTRATIVE LAW JUDGE
By complaint filed November 2, 1972, the Consumer Protection Office of the U.S. Postal Service (Complainant) seeks the issuance of an order under 39 U.S. Code 3005 which would stop the mail sent to Lydia Feldman (Respondent) at a named address in Los Angeles, California, in response to a certain advertisement published by the Respondent. This order would also prohibit a postmaster from paying any postal money order drawn to Respondent's favor. Both the mail and money orders would be returned to the sender, the mail marked as being returned for violation of 39 U.S. Code 3005.1/
The complaint states that Respondent is engaged in a scheme or device to obtain money through the mail by means of false representations which, if proven by satisfactory evidence -- the standard under 39 U.S. Code 3005 -- would lead to the issuance of requested order. The Complainant alleges that Respondent advertises to the public a tonic known as "My Secret" and represents that taking this tonic will result in a loss of weight regardless of the cause of the user's excess weight, with no dietary restrictions, with the weight loss being permanent, and that the tonic converts calories into energy rather than the formation of fat. Complainant contends that these representations are factually and materially false.
Respondent answered the complaint on November 17, 1972. It denies that it is engaged in any scheme and that it makes the representations in the advertisement as alleged in the complaint, or that these are false. It claims that its advertisement accurately and fairly advertises a booklet for sale to those who want to lose weight and does not seek money for what the complaint states is a "product/service."
Affirmatively, it defends itself claiming that 39 U.S. Code 3005 as construed and applied here is unconstitutional. The alleged deficiencies in the statute are that (1) it permits a restraint on the circulation of the press without a requirement that Complainant prove that Respondent knowingly misrepresents it booklet; (2) it is denied due process of law since it does not have the benefit of compelling the attendance of witnesses in its favor;2/ (3) it has no right of jury trial under this statute; and (4) the statute would permit a restraint on its booklet without a court proceeding within a brief time limit initiated by the Postal Service as is required in cases involving allegedly obscene materials.
The foundation of Respondent's defense is its contention that its booklet is protected by the First Amendment prohibiting any law abridging a free press. It claims that the booklet satisfies current scientific standards; that the information therein is valuable to those who do not know how to diet safely;3/ and that a weight loss will occur as represented in the advertisement. Finally, again relying on a case dealing with an allegedly obscene advertisement, it claims that the ad itself is entitled to First Amendment protection.
The hearing was originally scheduled at Washington, D. C., but, on motion by Respondent, was transferred to Los Angeles, California. On January 17, 1973, both parties appeared through counsel who examined and cross-examined their own and each other's witnesses. Their proposed findings of fact and conclusions of law together with briefs and reply brief by Complainant were all filed by April 5, 1973.
Respondent admits to the use of the mail to send its advertise- ment and booklet and to receive money -- $5.00 for a copy of the booklet entitled "My Secret." No objection was made by Respondent to evidence that a Postal Inspector ordered, paid and received "My Secret" through the mail. (Exhibits C-1 through C-6, Tr. 2-4) There is no issue on this point.
Based on the pleadings and post-hearing filings, Complainant attacks the article advertised by Respondent on the theory that it has no constitutional protections because of the manner by which it is advertised. Respondent insists that certain First Amendment immunities are endemic to booklets and, therefore, Complainant cannot treat its product as if it were a diet pill. As discussed below, both of these views find support in Court and Postal Service precedents depending on the circumstances of each case and the evidence must decide which theory is to prevail.
The Evidence :
I) The ad, its representations and what it sells:
Respondent's advertisement (Exhibit C-2 and attached as Appendix A hereto) is a one page affair, the upper two thirds consisting of the ad's message in the three columns of print and the bottom third being the coupon to send for "My Secret." It is written in the first person apparently by Lydia Feldman, Research Director, and a semblance of her signature closes the ad.
It opens by asking in type six times larger than the body of the ad,
"Want to lose weight?"
The reader is then told how exasperating diets, pills and gadgets are which do not produce lasting success in losing weight. This, the ad assumes that the reader knows from his experience "if he is like" the ad's composer. The message goes on to point out that some people can eat anything without putting on weight and explains why.
The reason an adult gains weight is because his body is not able to convert all the calories he eats into energy. The unconverted calories become useless fat. But, Lydia Feldman found in occult writings she was studying, a tonic which, taken before each meal, preserves the body. She tried it and lost 12 pounds in a week without "a moment of food-craving hunger." While she doesn't know how it works, the tonic gives the user an instant lift and his body goes to work to convert all those unburned calories into energy. The tonic is not expensive and available in any health store.
All that is required is the taking of the tonic. No tortuous diets, strain, or inhuman demand on the willpower. The starches, carbohydrates, the fats are changed into energy instead of fat. Meal, snack, or party times are no longer moments of regret and no longer the cause of more fat because "now your body is protected."
The ad trails off repeating that no nerve racking diets are necessary, no strain and no drain on your health. The only real expense is for new clothes on a permanently thinner body since the "pounds drop off and stay off." Therefore, if the reader is seriously determined to lose weight permanently, to stop "the shame and embarrassment of being overweight," he is told to take advantage of the offer today.
The simple directions for making "My Secret" are readily available. "Results are guaranteed. You must lose weight--and lose it faster, safer, and easier than you ever imagined possible--or your money back."
The coupon asks Lydia Feldman to send the directions for "My Secret" with the understanding that it is everything the ad says ("safest, fastest, most effective fat-destroyer in the world"). The weight loss must begin within 24 hours and will continue as long as the tonic is taken or the money will be refunded. "My Secret" costs $5.00. The bottom of the coupon states, "Please note: You must not only lose pounds but inches as well. And you must look and feel better than you ever have in your entire life-without feeling a moment of hunger--or your money back."
Based on this ad, the complaint reads that Respondent holds out to the public that use of "My Secret" will .
2(a) result in a loss of weight; .
2(b) regardless of the cause of the excess weight; .
2(c) without dietary restrictions; .
2(d) permanently; and .
2(e) because it converts all calories into energy rather than fat.
Respondent, at least to the extent that there is no material variance between these claims and the contents of the "My Secret" booklet, admits that the ad makes these representations except for items (b) and (c). (Respondent's Brief, part III)
Item (b) alleges that the weight loss will occur notwith- standing the cause of a person's being overweight. The ad is addressed to anyone who may want to lose weight. The only cause of being overweight is said to be the body's inability to convert calories into energy; but the tonic will cure that deficiency and results are guaranteed.
I find that -- since the ad identifies the only reason why obesity occurs at all and the tonic is said to remove this reason -- the ad represents that all overweight persons will be able to reduce with the tonic. There is no qualification as to the cause of being overweight. Rather the sole reason described is held out to be universal.CF. S.S.S. Company v. .T.C., 416 F.2d 226 (1969).
Item (c) alleges that no dietary restrictions are required to reduce using the tonic. The ad does not say this is so many words and the question arises of whether this representation may be implied from the ad as a whole. The ad does hold out that "no tortuous diets" or no diets that "turn you into a ragged bundle of nerves" are involved in this reducing regimen and that this is the easiest way to reduce. All you do is take the tonic before each meal and the weight drops off without a moment of "food-craving hunger."
Based on this presentation, I find that in order to reduce all one need do is drink the tonic prior to eating. No other change in habit is needed such as what a diet would require. I find that this representation is made by the ad.
There is no question that the ad represents that with the tonic a weight loss will occur [item 2(a)]; permanently [item 2(d)]; because all calories will be converted to energy rather than fat [item 2(e)]; and I so find.
Before turning to the question of whether these representations are false, the Respondent's contention that it has First Amendment protections -- prohibitions on the state against any abridgement of a free press -- must be considered. These protections are said to flow from the fact that a booklet which contains the directions for the making of the tonic, why it works and general information about health is offered for sale. These protections would require, according to Respondent -- swift judicial determination of whether a misrepresentation has occurred, Blount v. Rizzi , 400 U.S. 410; proof that Respondent knowingly made the misrepresentation, Manual Enterprises, Inc. v. Day , 370 U.S. 478; and that any misrepresenta- tion can be found only if an average person would be deceived by the ad rather than one of a lesser mentality, Roth v. U.S. , 354 U.S. 476, Butler v. Michigan , 352 U.S. 380. It also claims that an ad is entitled to the same protections as the booklet itself, U.S. v. Pellegrino , 467 F.2d 41.
The cases on which Respondent grounds its approach all deal with the question of whether certain material is obscene. The diagnoses in each of these decisions take into account the immunities of specific writings or speech from governmental interference and under what circumstances the disease of obscenity would be fatal to an utterance.
But this is the wrong path when misrepresentation is alleged, Lynch v. Blount , 330 Fed. Supp. 689, affirmed on appeal, 404 U.S. 1007. The court there separated the sensitive tools required to deal with a suspicion of obscenity which led to the results in the cited proceedings. No such instruments are necessary in a misrepresentation case. That condition is apparent to the naked eye once the facts are determined. The simple fact to be found lies in the answer to the question of whether the product to be sold is that which the ad promises. Therefore, the court in Lynch v. Blount , above, concluded that ...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. (p. 694)
See also U.S. Postal Service v. Beamish , 466 F.2d 804, 807 (1972). This restates the proclamation of Justice Holmes in Schenck v. U.S. , 249 U.S. 47, 52 (1919) that The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
Further, the principle of caveat emptor is not found in the etiology of misrepresentation as that term is used in statutes enforced by the Federal Trade Commission or this Agency to protect the public at large, F.T.C. v. Sterling Drug, Inc. , 317 F.2d 669, 674 (1963). And the court-approved standard measures the public's reception of an ad by the lowest denominator. These are not the "acute and sophisticated readers" but those possessed of "the ordinary mind," Donaldson v. Read Magazine , 333 U.S. 178, 188-189. No court has applied any higher standard than this, cf., Regina Corp. v. F.T.C. , 322 F.2d 765, 768; F.T.C. v. Sterling Drug, Inc. , above at 674, Charles of the Ritz v. F.T.C. , 143 F.2d 676, 679; and Gottlieb v. Schaffer , 141 F. Supp. 7, 16.
For these reasons, I find that Respondent's evidence through an expert on advertising presented to show what the standard of advertising is in this area; who the overweight person is in the community of such persons; and how an overweight person would interpret this ad is irrelevant and will not be considered further. There is no averaged community standard applied to this field of misrepresentation.
The case relied upon by Respondent to indicate that First Amendment protection runs to an ad ( U.S. v. Pellegrino , above) dealt with an allegedly obscene ad and the court distinguished those situations not involving obscenity. So, too, with Respondent's proposition that an intent to deceive must be shown ( Manual Enterprises, Inc. v. Day , above) where the Post Office Department's civil attempt to stop appellant's mail based on a criminal statute could not be sustained without a showing that the appellant knew that an ad promised obscene matter as required by the criminal law. No criminal law is involved in this proceeding.
In short, Respondent's effort to carry over First Amendment protections from obscenity cases to those dealing with misrepresenta- tion must fail because its ad has no such protection to begin with. A writing, alleged to be obscene, has certain protections which must be overcome to prove the allegation.
Respondent agrees that, if it were selling a diet pill rather than a booklet, no First Amendment arguments would even be discernible. But, it argues, since a booklet is for sale, the entire landscape is enlarged; when one sells a booklet, he is given a greater latitude in his sale's method.
This is an inverted a posteriori argument which stumbles over itself. A deception once made by an ad cannot later be cured, e.g., a money-back guarantee does not correct a misrepresentation, Exposition Press, Inc. v. F.T.C. , 295 F.2d 869, 873 (1961). The essence of the Complainant's proof must be that the customer is not receiving what he is told he would by the ad be it a book or a nostrum. It is not what he gets that decides these cases and fixes the procedural and substantive requirements but what he gets compared to what he is promised. Stated differently, the crux of any case is not what is being sold but how it is sold.
Thus, in Parker Publishing Co. , P.O.D. Docket No. 3/80, decisions of the Judicial Officer dated December 14, 1971, and on reconsideration, March 9, 1972, no mail-stop order was issued because it was found there that the Respondent was a bookseller and a book was advertised for sale with an ad which described its contents accurately, that is, there was no variance between what the ad claimed was in the book and the book itself. The truth of the contents of the book was not tested. But, in Dorset House , P.S. Docket No. 2/14, decision of June 13, 1973, it was found that a weight reduction program was offered by the ad and it made no difference that this program was in the form of a diet booklet. The issue was whether the program touted in the ad worked as claimed. So, too, was the result in B-Beautiful Method , P.S. Docket No. 1/181, decision of May 14, 1973, where a booklet describing certain exercises was received in response to an ad promising a larger bustline. What the ad actually sells must be what the customer receives or a mail-stop order may be issued.
Turning to the ad at bar, I find that a program of weight reduction rather than a book or booklet is the primary and glaring touchstone of the ad's message. That the directions are contained in a booklet is relegated to a lesser position. The purpose of the ad is to convince any reader that he can lose as much weight as he wants with the simple directions supplied by Lydia Feldman. How the process works (a proper subject for a book) is unknown. In essence, the ad sells a magical tonic with guaranteed results. In such a circumstance -- as far as the ad is concerned -- the booklet amounts to no more than the binder of a pill or capsule. And it must be determined whether the ad's claims can be justified by the results achieved when a person follows the directions in the booklet.
II) The alleged falsity of the ad's representations:
"My Secret" is a 12 page booklet (Exhibit C-6). Page 6 reveals the process:
MY SECRET
Here's how you can drink your way to a slim figure -- and keep it]
Mix one-half cup of grape juice, one-half cup of apple juice, and one large mashed banana. Blend together and drink just before your regular meals.
Eat nothing between meals. If you must have something to carry you to the next meal, mix up another batch of this tonic. you can drink all you want of this tonic. Unlike regular foods, you cannot 'over-consume' this tonic.
That's all there is to it.
Sound too simple to be true?
Prior to the directions, the booklet deals generally with health and losing weight. After the directions, the type of juices needed is given -- it must be taken from fresh fruits -- and the way to squeeze the juices from the fruits -- a tedious process, peeling, slicing, straining and blending. These elements are the keys to success and the catch is that canned or bottled juices simply won't work. Page 9 describes how the tonic works. The juices are digested instantly releasing 'body building materials' which might otherwise be passed off as waste and, upon taking of tonic, the level of blood sugar rises and is maintained for a period slowly releasing the carbohydrate action which controls the appetite and reduces the urge to eat. The booklet closes with a brief summary of how to make the tonic and special tips dealing essentially with eating habits. it ends with a footnote making reference to a book which is recommended for anyone wanting an explanation of how the tonic works.
Complainant's medical and only witness, Dr. Ernest J. Drenick, graduated from medical school in 1941. He is presently Chief of the Section in Internal Medicine of the Veterans Administration Hospital in Los Angeles and is a member of the faculty of the Department of Medicine at the University of California, Los Angeles. His field of special interest is in nutritional disorders, with emphasis on obesity, and he has a research program at the VA and is in charge of the referral and consultation clinic for nutritional disorders at the University. He treats patients on a regular basis.
He testified that the overweight and obese (20-30 percent more fat than the norm for any given person) conditions are caused by an excess of calories, that is, more of these are ingested than expended (Tr. 21 and 43).4/ The body stores its energy in the form of fat (Tr. 23). Any imbalance is the same in all cases of obesity although disorders in the body can cause a slower burning of calories aggravating the imbalance (Tr. 21-23). Excess calories, those not used by the body in its processes, are converted into fat and this includes unused protein and carbohydrate calories (Tr. 23). To lose this fat, the only sensible way is to reduce the amount of food below what the body requires for its energy (Tr. 23).
Turning to "My Secret," the doctor testified that drinking this tonic and then taking the regular meal (as the directions state) would only add about 600 more calories to the daily intake (Tr. 24-25 and 64). If the taker is already overweight, these 600 calories, in three portions of the tonic, will be turned into fat (Tr. 25) because the person has no need for all the energy his body already has. And, since the taker may drink as much of this tonic as he wants, there is no way of knowing how many extra calories he will take in and he'll gain weight at the rate of his consumption of the tonic (Tr. 24).
Medical science has practically all of the answers concerning how the body uses its energy but this is not so on the question of what regulates a person's input (Tr. 35). Generally, when the body requires more energy, a person will feel hungry (Tr. 36) but this may not apply to an obese person. "My Secret," which consists of carbohydrates in the form of sucrose in the fruits, may lessen the appetite of a normal person but may trigger an eating binge in an obese person for some psychological reason (Tr. 37-39). Physiologically, in an obese person, these carbohydrates will cause a release of an excessive amount of insulin over an extended period of time which depresses his blood sugar level and, as a result, he will feel hungrier (Tr. 39). This effect may last for two and a half to four hours (Tr. 40) after taking the tonic, but it does not necessarily occur in non-obese persons wanting to lose weight (Tr. 43 and 45).
Dr. Peter G. Lindner was called by Respondent. He has been treating obese patients for 15 years and almost exclusively for the past six or seven years. He has written several books on this subject and there is no question that he knows well his field.
In his opinion, the psychology of an obese person is very significant in a weight reduction plan. They are manipulators and, therefore, any reducing plan must be rigid. In his opinion, "My Secret" will work because of the ritual (rigidity) attached to it. A dieter must make the tonic and make it carefully. He cannot store it for too long a period. He must take it before each meal. He is constantly reminded that he is in a program and this will tend to dissuade him from "eating a piece of pie" (Tr. 71-73 and 81-87). Putting the tonic in his stomach before he eats will start him on the road to where he's had enough (Tr. 72). And the tonic is somewhat filling and tasteless (Tr. 73).
The doctor agreed with the prior testimony that the tonic will lead to a drop in blood sugar level but this occurs in only about 50 percent of the obese population (Tr. 116). But it would be raised (before the meal) prior to the drop so that the person would not feel as hungry at mealtime and would eat less (Tr. 73-75). This is the essence of the program (Tr. 108). Therefore, over a 24-hour period, a person following the regimen would very likely consume less calories than he would otherwise (Tr. 76). But there is nothing in the booklet to tell a user how much or what kind of food to eat (Tr. 108).
Obese people have something wrong with the very fine regulatory center in the brain which controls the weight. An increment of only an extra 100 calories a day could easily mean an extra 10 pounds in a year. It must be that mechanism in the brain which keeps a non-obese person's weight the same year after year. But an obese person eats, not only because of hunger, but because food is attractive. They eat anything good. But "My Secret" is not tasty and an obese person would not tend to drink it (Tr. 79).
The tonic will not convert all calories into energy. It will tend to make a person less hungry (Tr. 128) to reduce his caloric intake over a 24-hour period (Tr. 131-132). And a person must take in less calories than he ordinarily uses to lose the fat weight (Tr. 130). The doctor would not prescribe this method for any of his patients (Tr. 105).
Based on this evidence, I find the following facts in relation to the charges of misrepresentation in the complaint:
2(a) That "My Secret" will result in the loss of weight. This misrepresents the fact. "My Secret" only adds calories to what is probably an existing imbalance with more coming in than going out. While the tonic might lessen the appetite, it could have the opposite result on at least half of its obese takers who will then either eat more or drink more of the tonic. Furthermore, the directions for taking the tonic include eating the regular meals as part of the regimen. Thus, there is no required caloric restrictions and no directions on what to eat which should be part of the rigidity of a diet program. The weight of the evidence is that no pounds will be lost.
2(b) That the weight loss will occur regardless of the cause of the excess weight. This representation is false. "My Secret" has no affect on any bodily deficiency which results in a slower burning of calories and a build-up of fat tissue. The tonic, because it increases the caloric intake, will aggravate this condition.
2(c) That no dietary restrictions are involved. I find no misrepresentation here. At worst, a user would substitute the tonic for a between-meal snack but this is hardly a dietary restriction as that is commonly understand.
2(d) That the weight loss will be permanent. Since I can find no initial loss, this representation is false.
2(e) That "My Secret" converts all calories into energy. Respondent's medical witness admitted that the tonic will accomplish no such miracle. The purpose of the tonic is to reduce appetite. This representation is false.
It is clear from the evidence that the ad grossly overstates the results to be achieved from following the directions bought for $5.00. at the very best, some people will feel less hungry upon taking the tonic but both doctors agree that abnormal hunger is not the only cause of obesity or being overweight. Medical science does not have the complete answer to the question of why a person eats, especially an obese person, when the body chemistry indicates no hunger.
It should also be noted here that even applying Respondent's theory of the case that Complainant may go no further than alleging that the ad's claims go beyond what is contained in the booklet, the mail stop-order may issue. The ad claims that all calories will be converted into energy and not collect in the form of useless fat. This is held out to be the key to success and the end to all other exasperating methods of losing weight. But the booklet explains that the tonic will act as an appetite controllant. That is, the sugars in the fruits of the tonic are slowly released which control the appetite and reduces the urge to eat. Thus the magic of the ad's claim is dispelled by the booklet particularly because hunger is not the sole cause of overeating.
Therefore item 2(e) of the complaint, alleging the falsity of the conversion of calories claim, is sustained since the tonic a) factually will not do this and b) the booklet does not say that this will occur. This misrepresentation is material and goes to the heart of Respondent's method as that is described in its ad.
Conclusions and Recommended Order :
Respondent claims that the Postal Service's lack of subpoena power (see footnote 2, above) deprives it of due process of law (Respondent's Proposed Conclusions of Law, number 9). But it pursued no attempt to produce the 16 authors of weight reduction books voluntarily nor did it move for a continued hearing at any site where these witnesses would be available. Its application for subpoenas does not reveal the address of these people but, in any event, the expense of procuring their testimony is the same to Respondent whether they appear by compulsion or not. Further, Respondent employed none of the writings of these witnesses -- some of which appear to be readily available -- for cross-examination or direct but reference was made to one book not included in the subpoena request (Tr. 53 and 89); but this, too, was not pursued. CF., Reilly v. Pinkus , 338 U.S. 269 (1949).
It appears that Respondent made no attempt to obtain any of the witnesses or materials short of subpoena and at no point in the hearing was this proferred testimony shown to be vital or even needed by Respondent. Its argument on the lack of due process rests solely on this Agency's lack of power to issue compulsory process (Tr. 11). This argument echoes in its own vacuum because Respondent pleads no disadvantage resulting from the failure to issue a subpoena other than the failure itself. Its claim of a breakdown of due process has not been perfected. This procedural process fails when a necessary witness otherwise available can not be made to appear. In Washington v. Texas , 388 U.S. 14, a criminal proceeding, a statute, preventing a certain class of persons from testifying in a defendant's behalf thereby preventing even the issuance of a subpoena, was invalidated as unconstitutional. The Supreme Court largely rested its decision on the necessity of the prohibited testimony to the defendant and the obvious unfairness of the prohibition. Therefore, due process was lacking. In this case, neither the necessity nor the obviousness has been shown assuming the same due process is required in a civil proceeding.
Respondent also claimed that the application of this statute is unconstitutional because it is denied a jury trial to determine the facts. It has no such right, Donaldson v. Read Magazine , above, and cf., Lynch v. Blount , above.
To the extent that the parties' proposed findings of fact and conclusions of law are embodied in this decision, they are adopted. Otherwise, they are rejected as irrelevant or not supported by the facts or applicable law.
I conclude that the Respondent is engaged in a scheme or device to obtain money through the mail by means of false representations and that an order, in the form attached under 39 U.S. Code 3005, should be issued.
_______________
1/ The Respondent may survey the mail at the postal station before it is returned to the sender. Under the standard order issuable in this type of case, only mail connected with the activities described herein is returnable. (See transcript, pages 11-12).
2/ Respondent's request for 16 subpoenas and 13 subpoenas duces tecum was dismissed on January 12, 1973, because the Postal Service has no authority to issue them. See the Rules of Practice, 39 C.F.R. 952.19, and the order of January 12, 1973.