In the Matter of the Complaint Against

SLIMTYME CO. at
Los Angeles, California 90048

P.S. Docket No. 2/11

Daniel S. Greenberg, Esq.,
Law Department, U.S. Postal Service,
for Complainant Charles B. Chernofsky, Esq.,
73 Ketewemoke Drive,
Halesite, New York, for Respondent

Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION

On December 22, 1972, the General Counsel for the United States Postal Service (Complainant) filed a complaint alleging that Slimtyme Co., Los Angeles, California (Respondent) is engaged in a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of section 3005 of Title 39, United States Code. More specifically, Complainant charges that Respondent is engaged in selling a "Slimtyme" device upon the basis of representations, allegedly false, that the use of the device as directed will produce a substantial loss of girth in a relatively short (5 days) period of time.

In Respondent's answer to the complaint, Respondent admits using the advertising matter attached to the complaint (a copy of which is attached hereto as Appendix A), but Respondent denies all other allegations of the complaint.

The matter came on for hearing on February 1, 1973, and Counsel for both parties participated in the examination or cross- examination of the only witness, Dr. Vincent F. Cordaro, a medical doctor who was presented as a witness by Complainant. Both parties have filed proposed findings of fact, conclusions of law and sup- porting arguments, which have been adopted to the extent herein indicated. Otherwise, such proposed findings of fact and conclu- sions of law are denied because they are unsupported by, or contrary to, the evidence of record or because they are immaterial.

Does Respondent Make the Alleged Representations?

In resolving this issue the trier of the facts must bear in mind that advertising literature is to be considered as a whole and from the standpoint of the impact the advertising matter will probably produce upon persons of ordinary minds ( Donaldson v. Read Magazine, 333 U.S. 178 (1948)), and even upon the gullible, the trusting, the ignorant, the unthinking and the credulous ( Gottlieb v. Schaffer, 141 F. Supp. 7, S.D.N.Y., 1956).

In approaching the question of whether Respondent makes the representations set forth in the complaint, there are certain requirements that must be met and which must be kept in mind. First, of course, is the obligation of Complainant to sustain the burden of proof. In this case, Complainant must establish by at least a preponderance of the evidence that (1) Respondent makes the alleged representations or (2) that Complainant phrases the charges in the complaint in language that expresses a meaning that reasonably may be derived from a fair, not strained, reading of Respondent's advertisement.

The advertisement used by this Respondent is small in size. It is so small, in fact, as completely to frustrate any effort expended to conceal anything within "the bowels of the advertisement" as Complainant asserts this Respondent has done. Since a substantial portion (roughly one third) of the advertisement consists of the large heading, the illustration and the order blank, there is not a great deal of space devoted to the sales "pitch." Excluding the "MONEY-BACK GUARANTEE" there are only three 6- or 7-line paragraphs of such sales "pitch." It is reasonable, therefore, to conclude that the average reader who is interested in reducing either weight or girth, or both, would read the entire advertisement. If one reads the entire advertisement, one sees in the second paragraph the notification that to use the "Slimtyme" device he must "follow simple directions included with 'Slimtyme' for 5 to 10 minutes and relax for 15 to 30 minutes." In the third and last paragraph, the reader is advised that "Slimtyme works on the unique combination principles of isometric and isotonic muscular tension and stress, as well as heat massage."

The language quoted above is not obtuse or ambiguous language hidden away in an obscure portion of the advertisement that is discoverable only upon careful analysis by an educated reader. This language comprises a significant portion of the entire advertisement and the quotations are contained in the first two lines under two eye-catching captions, viz. , "Simple and Easy to Use" and "How - SLimtyme - Works," which the reader would surely see and want to read.

The language quoted above about following simple directions for 5 to 10 minutes and about muscular tension and stress is not esoteric or difficult to understand. To the contrary, the message is clear that in addition to the "mere wearing" of the device, the person who hopes to achieve the desired loss of girth or weight must engage in some kind and degree of exercise. For the reader to receive this message, it is not necessary that the language of the advertisement be "carefully dissected with a dictionary at hand." Newton Tea and Spice Co. v. United States , 288 F. 476, 479 (CCA 6, 1923); Aronberg v. Federal Trade Commission , 132 F.2d 165 (CCA 7, 1942). The language in Respondent's advertisement is brief and clear; the message is plain that some exercise will be required of the user of the device. This discussion leads to the finding of fact that the Respondent does not make, or make in substance, the following representations:

"2 *** (a) That the mere wearing of the 'Slim Tyme' device *** will effect:

1. a loss of up to 4 inches from the user's waistline in 5 days;

2. a loss of weight;

"(b) That any loss of girth or weight that may occur will do so without the need for diet or exercise."

If a person has sufficient education and understanding to be able to read Respondent's advertisement, he has sufficient learning and understanding to comprehend that he is being told that something more than the "mere wearing" of the device is required in order to obtain the promised benefits.

Perusal of Respondent's advertisement reveals that it does contain the representation set forth in subparagraph (c) of paragraph 2 of the complaint, to wit:

"(c) That, alternatively, the 'simple program' will effect the result enumerated in subparagraph 2(a)(1.), supra ."

The language, to cite one example, which Respondent uses in its advertisement to make the foregoing representation reads:

"This temporary loss of inches can be yours permanently by following our simple program."

The representation attributed to Respondent by the language in paragraph 2(d) of the complaint is as follows:

"(d) That the results charged in subparagraphs (a) and (c), supra , will occur regardless of the user's girth, age, health, or physical condition."

It is a reasonable construction of Respondent's advertisement to say that it represents that of those people who use Respondent's device as directed, all will achieve the specified loss of girth, accompanied by a weight loss...although the "speed and degree of results will vary with individual body characteristics."

Charge 2(e) of the complaint is that Respondent makes the following representation:

"(e) That the 'simple program' may be:

1. easily performed by any user, regardless of age, health, or physical condition;

2. safely performed by any user, regardless of age, health, or physical condition."

Complainant, in its brief, leans heavily for support of this charge on the Postal Service Decision in the Matter of Sauna Belt, Inc. , P.O.D. Docket No. 3/43. Aside from the fact that the Sauna Belt matter is pending review before the United States District Court for the Northern District of California, it must be borne in mind that the advertising matter in Sauna Belt is different from that used by this Respondent.

There is nothing in Respondent's advertisement which provides a reasonable basis for the inclusion of this charge in the complaint. It is true that the device is described as "Simple and Easy to Use" and that the directions are described as "Simple", but for Respondent's advertisement to be contorted to mean that the use of this device and the following of this program will be easy and safe for any and all persons, regardless of their age, health or physical condition, is unwarranted and unjustified. Such a charge attributes to Respondent words never uttered by Respondent and meaning not encompassed within a reasonable interpretation of Respondent's words. The breadth and sweep of this alleged representation boggle the imagination. One conjures up images of octogenarians who are non-ambulatory and obese who might see Respondent's advertisement and purchase the product in the belief, as Complainant insists, that anyone could use this device easily and safely. Such a view is, of course, preposterous, but that is the sense of Complainant's charge. The example is no more preposterous than is the charge. The drafter of the complaint has fallen victim to the same malady of overstatement with which he has charged the Respondent. It does not suffice to put the ipse dixit "I say Respondent represents this and this is false; therefore, Respondent is guilty of misrepresenta- tion." It is appropriate, and far more becoming to the Government, that in matters such as this case the charges be based more pre- cisely on what the advertiser actually says and that the adverti- ser's meaning be expressed in reasonable and accurate terms rather than in rash hyperbole. There is ample and easily identifiable mis- representation in this case so that it is unnecessary to stretch and distort plain, everyday language. In sum, Respondent does not make the representation set forth in the complaint as subparagraph (e) of paragraph 2. Not even the gullible, the trusting, the ignorant, the unthinking and the credulous would derive from Respondent's advertisement the meaning which Complainant has read into it by this representation 2(e), which interpretation far exceeds "all that is reasonably implied" by Respondent's advertisement. Aronberg v. F.T.C. , supra .

It clearly is implied in Respondent's advertisement, as charged in paragraph 2(f) of the complaint "That the wearing of the device makes a significant contribution to reduction of girth or weight over and above that which may be effected by following only the diet and exercise instructions contained in the 'simple program' of which said device is a part." The burden of the advertisement is the loss of weight, and the device is prominently featured both in the photography and in the language employed.

Recapitulating, it has been found that Respondent represents in its advertisement that its program will enable all followers of such program to lose weight and to lose up to 4 inches of waistline girth in 5 days and that the wearing of the SlimTyme device makes a significant contribution to the weight and girth reductions apart from the diet and exercise portion of Respondent's program.

The Truth of Falsity of Respondent's Representations

The Slimtyme device is a plastic band, about eight inches wide and long enough to completely encircle the body, and it is fastened around the waist and inflated by means of blowing through a tube until it fits tightly. Certain exercises, as described in literature sent with the device (Ex. C-6), are taken for five or ten minutes while the belt is being worn. The exercises are followed by a 15-30 minute period of relaxation, at the end of which the belt or band is removed. The final part of the "program" consists of the following of a dietary regimen which allows the ingestion of 1000-1150 calories per day.

As stated earlier, the only witness who testified in this proceeding was Dr. Vincent F. Cordaro, a medical doctor who was called by the Complainant. Dr. Cordaro stated that most (95%) of obesity is exogenous in origin, which means that the obese person, in most instances, ingests more calories per day than he expends in his daily activities. The medical profession is of the view that the method of choice in aiding those people who wish to lose weight, and, hence, girth is to put those people on a supervised, calorie- reduced, well balanced diet. The loss of weight experienced by persons on such a diet would be increased by a sufficiently strenous but properly regulated exercise program. (Tr. 7-9)

In regard to this case, Dr. Cordaro expressed the view that the printed diet sold by Respondent would cause a person to lose weight and that the addition of the exercise program would cause some additional weight loss. It would be most unusual for any person following Respondent's program to experience a reduction in girth of four inches in five days. Such a girth reduction could occur in rare instances, but in nothing like the generality and numbers of cases which a fair reading of the advertisement would suggest. Additionally, the use of the SlimTyme device in connection with this program would be of no value in terms of the reduction of either weight or girth. (Tr. 32-33)

Respondent admits that it is engaged in the sale of a program represented to be of benefit to persons who want to lose weight and inches from their girth. An integral part of Respondent's program is the use of the SlimTyme device which Respondent represents will have a significant effect in helping persons who want to lose inches and pounds achieve these objectives. The uncontradicted proof in this case establishes that the SlimTyme device may produce a loss of weight through fluid loss by perspiration but this fluid loss is quickly compensated for when the person drinks fluid. The SlimTyme device, therefore, is worthless for the purpose for which it is represented by Respondent to be efficacious, as shown by the evidence of record in this case, which is amply sufficient to support the following conclusion. U.S. Health Club v. Major , 229 F.2d 665, C.C.A. 3, (1961).

CONCLUSIONS OF LAW

Respondent SlimTyme Co. of Los Angeles, California, is engaged in a scheme or device for obtaining money or property through the mail by means of materially false representations as proscribed by section 3005 of Title 39, United States Code.

An Order of the type provided by the governing statute should be issued against this Respondent.