In the Matter of the Complaint Against

SHARON WOODMAN ASSOCIATES,
13619 Moorpark at
Sherman Oaks, California 91403

P.S. Docket No. 2/122

William A. Duvall Chief Administrative Law Judge

Daniel S. Greenberg, Esq.,
Law Department, United States Postal Service,
Washington, D. C., for Complainant

Robert Sarno, Esq.,
6922 Hollywood Boulevard, Hollywood,
California, for Respondent

Before : William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION

^1/ This proceeding was initiated by the filing on August 16, 1973, of a Complaint in which the Consumer Protection Office of the law Department of the United States Postal Service charged that Sharon Woodman Associates, 13619 Moorpark, Sherman Oaks, California, is

The Respondent is engaged in selling through the mails a mail method for producing a reduction in weight.

The charges in the Complaint are, in part, that Respondent makes the following representations:

"(a) That ingestion of Respondent's tonic, (hereinafter referred to as the 'tonic') will result in a loss of weight;

"(b) That said weight loss will be effected regardless of the cause of the user's excess weight;

"(c) That said weight loss will consist of reduction of fat tissue;

"(d) That said weight loss requires no dietary restrictions;

"(e) That said weight loss will be permanent;

"(f) That the instructions sent by Respondent may be safely followed by the potential remitter, regardless of his present state of health or physical condition;

"(g) That the instructions sent by Respondent may be comfortably followed by the potential remitter regardless of his present state of health or physical condition;

"(h) That the tonic alters the body's metabolic processes, causing it to convert all calories into energy, rather than permitting the formation of fat."

Complainant charges that the representations quoted above are materially false as a matter of fact.

Respondent filed Answer to the Complaint on August 30 and raised a number of affirmative defenses, in addition to making what constitutes a general denial of all of the charges in the Complaint.

Among the affirmative defenses raised by the Respondent are several which attack Section 3005 of Title 39, United States Code as being unconstitutional. The determination of this kind of question is not within the province of Administrative Law Judges, but in light of the decision in Lynch versus Blount reported at 330 Fed. Supp. 689 and affirmed by the Supreme Court of the United States at 404 U.S. 1007, the hearing will proceed in the normal fashion. The Respondent has completed the making of a record in this proceeding by renewing the attack on the constitutionality of the basic statute in his proposed findings.

The Respondent also has brought up the fact that the Complaint in this proceeding was filed after the receipt of Exhibit C-7, which is a booklet which Respondent's counsel says formerly was sent by Respondent in response to remittances, but which has been discontinued. Respondent also points out that the successor publication which was received in evidence as Exhibit C-10, had not been published at the time of the filing of the Complaint in this proceeding and that, therefore, the Complaint is irrelevant since it did not apply to anything in the possession of the Complainant at the time of the filing of the Complaint.

On this point it should be pointed out that the Complainant alleges the conduct of a scheme or device for obtaining money or property through the mails. This is an ongoing and continuing type of enterprise which is alleged in the Complaint and Complainant must assume the risk that the charges that he makes will continue to be applicable to the business as conducted by the Respondent. Also, there is a possibility that Respondent may, through some inadvert- ence, mail out a copy of the older publication instead of the new one. In any event, the purpose of this proceeding is to determine whether such a scheme or device is being conducted by the Respondent in the manner in which it conducts its business.

Turning now to the charges in the Complaint, it is alleged that the mails are used in the conduct of this business. The use of the mails has been clearly established by the exhibits which have been received in the form of unsolicited mailings by the Respondent, plus the conduct of test correspondence by the inspector who investigated the case; the submission of remittances; and the receipts of the booklet in return for the remittances.

Next, there must be determined the question as to whether, in the conduct of its business, the Respondent makes the representa- tions which are set forth in paragraph 2, and subparagraphs thereof, of the Complaint.

This proceeding is somewhat different than the usual proceeding of this kind because of the existence of the two booklets. The charges in the Complaint will be discussed later in this decision with respect to each of the two booklets, but the advertising matter, whether it refers to the former booklet or the later booklet, has remained substantially unchanged and it must be considered in determining whether the Respondent makes the representations which are set forth in the Complaint.

The rule to be followed was set forth in the case of Donaldson v. Read Magazine , 333 U.S. 178 wherein the court said that the advertisements are to be interpreted in the light of the effect that they would produce on the average reader. This is the criterion that will be followed in this case. Applying that yardstick to the advertising material used by this Respondent, it requires no stretch of the imagination and no distortion of the English language to reach the conclusion that the Respondent does, in fact, in the advertising material, make the representations which have been quoted earlier in this decision.

The next question to be determined is whether the representa- tions which have been found to be made by the Respondent are true or false.

It is in this phase of the matter that the different booklets are considered.

In regard to the representations that ingestion of the Respondent's tonic will result in a loss of weight, there is no question but that the following of the advise set forth in the booklet, which was received into evidence as Exhibit C-7, will produce a loss of weight. The advertising material indicates that the tonic, which consists of half a cup of grape juice, half a cup of apple juice, and a banana, taken together in a concoction, is to be taken before each meal, but C-7 indicates that this drink is to be taken instead of meals and as often in between as the individual's hunger dictates, but not to eat any other food. The upper limit of the consumption of this preparation is fixed at about 700 or 800 calories per day, so that there is no question that the ingestion of this reduced amount of calories would produce a loss of weight.

In regard to the later booklet, which was received in evidence as Exhibit C-10, the individual is told to prepare this drink and to drink it about 15 minutes before regular meals so that the indication is that the remitter is to follow his usual dietary practice, but simply add the ingestion of the drink 15 minutes before the meal. If this happens, if this occurs in the way it is suggested in the Respondent's pamphlet, it is elementary that the taking of this drink will simply add that many calories to the total daily intake.

There has been some suggestion here on the part of Respondent that the drinking of this preparation 15 minutes before mealtime will act as an appetite suppressant and cause the dieter to consume less at his regular mealtime. This suppressant effect has not been established as a medical fact. The testimony in regard to diets is that there is no one dietary regimen that is applicable to the generality of mankind. Hence, while the ingestion of this drink before mealtime may serve with some individuals to lower the hunger or appetite, it will not have that result in all persons, but nowhere in the advertising literature are the prospective purchasers put on notice that this is one system that is to be used by all persons, regardless of their psychological and physiological makeup and with the various reasons which cause people to eat or overeat. In regard to the exhibit which was received as evidence as C-10, the representation is false because it will not produce the promised result for all remitters.

Charge (b), that the weight loss will be effected regardless of the cause of the user's weight is probably true in regard to Exhibit C-7. In regard to Exhibit C-10, that representation is false for the reasons previously indicated and it would be false, particularly in the case of persons who habitually eat or have eaten more than they require to maintain their weight, their proper weight. There is even question in regard to whether the diet which is in C-7 will produce a weight loss if that excess weight is a result of some organic disease. The proper treatment for that condition is to treat the organic malady, rather than to eliminate calories, but the probability is that this diet would produce a weight loss even in persons whose overweight condition is due to the presence of some organic disease.

Now, in regard to the weight loss consisting of a reduction of fat tissue, that representation is true in regard to C-7 upon the basis of the medical testimony that has been adduced at this hearing. The weight loss will consist, in part, of fat tissue and also part of the reduction of some protein in the system, but the way this charge (c) is worded, it is not restricted exclusively to a loss of fat tissue. In regard to the pamphlet which was received in evidence as C-10, of course, for those persons referred to earlier for whom no weight loss would be produced, the representation is clearly false.

In regard to the lack of dietary restrictions in Respondent's regimen (charge (d) above), the directions set forth in C-7 severely restrict the diet. In fact, some of the testimony in this proceeding referred to the diet as a starvation or semi-starvation diet. Thus, in regard to C-7, this representation is false.

The representation is true with respect to Exhibit C-10. There are no dietary restrictions, except that the person is admonished not to eat between meals, which within itself is some dietary restriction for some persons, but for those who eat three meals a day, that regimen is not restricted, but there is added thereto the tonic preparation. Again, reference must be made to the fact that in many, if not most of the cases, weight loss will not be produced by following instructions set forth in Exhibit C-10.

As regards the permanency of the weight loss that will be produced (charge (e)), the Respondent's medical expert testified that in his opinion persons would not be able to stay within these dietary limits for periods of longer than 10 days or two weeks, during which time he would have lost a significant amount of weight varying from seven to fifteen pounds--seven pounds perhaps the first week, with a total of fifteen pounds in the two-week period. After that initial period and after the individual went off of this severely restricted caloric intake, he would probably regain five of the seven pounds that he had lost from the first week. If the person continued go go on and off this diet over an extended period of time, there probably would be some weight loss, but the picture of the person's weight would be a series of hills and valleys which certainly does not suggest any idea of permanency of weight loss. It is a way of losing and gaining. This picture evolved from the testimony of the medical expert produced by the Respondent.

It is questionable, again, whether the advice in Exhibit C-10 will produce any weight loss, so for large numbers of persons no weight loss is produced. Of course, there would be no permanent weight loss and, in fact, there might be a weight gain.

Moving now to the representation that the instructions sent by the Respondent may be safely followed by any remitter regardless of his present state of health or physical condition, it is stated in advertising material which Respondent had inserted in the National Enquirer that "this method is 100 percent safe". The testimony of the medical experts is unanimous: following the instructions set forth in Exhibit C-7 involves a considerable and significant risk for persons who have diabetes or low blood pressure. It was also pointed out that people may have these conditions without being aware of it. As a matter of fact, despite what the Respondent says in its advertising material, on page 5 of Exhibit C-7 the Respondent warns persons who have diabetes or low blood pressure to consult with their physicians, which indicates that the Respondent is aware that dangers are inherent in the following of the instructions contained in Exhibit C-7.

Moving to Exhibit C-10, there is no specific condition mentioned such as diabetes or low blood pressure, but on page 5 of this booklet the Respondent advises that if a person has doubt about following the diet he should consult his doctor. It would appear, therefore, that the Respondent has some reservations as to the complete safety of even the instructions set forth in the alter booklet. In view, however, of the relatively low likelihood that this information in Exhibit C-10 would produce a loss of weight or cause much change in a person's eating habits, the following of the instructions in Exhibit C-10 probably is safe for any remitter.

For those persons who undertake to follow the instructions set forth in Exhibit C-7, they are in for a period of two or three days in the early stages of this regimen when they will be subject to considerable discomfort because of hunger. As a matter of fact, on page 8 of Exhibit C-7 the Respondent says that the followers of that regimen will be "very hungry" the first three days that they are on the program. Clearly they are not going to be comfortable if they follow the instructions in C-7.

In regard to Exhibit C-10, it is likely that the remitters may follow the instructions in this publication and be perfectly comfortable because even if the taking of this drink reduces partially the amount of calories that would be ingested at the regular meal, the drink itself in all likelihood makes up that deficit, so that the net result is that the person is ingesting approximately the same amount that he ordinarily would anyway so that he should suffer no discomfort. It is also most likely that he will enjoy no weight loss.

Turning to the last representation charged in the Complaint, which is that the tonic alters the body's metabolic processes causing it to convert all calories into energy, rather than permit the formation of fat, the medical testimony is unanimous that there is nothing in the tonic itself which would have the result of altering the body's metabolic processes. So this representation is false.

In regard to the testimony that was stipulated would have been given by the gentleman who is an advertising expert, it is true that he did say that the audience at which the advertising material is directed is skeptical and it would have doubts as to the effective- ness of the product that was being offered for sale. On the other hand, this same witness would testify that this advertising material is addressed to a desperate audience. People who are obese are known to constitute a desperate audience and that is the reason why there are so many businesses which thrive on making appeals to this desperate audience. Hope still springs in the breasts of these people that they will come upon some remedy which will be successful if they try it, but it appears on the basis of the testimony in this proceeding that if they purchase the product being sold by this Respondent, they are in for another disappointment in many cases.

The whole thrust of this proceeding, it seems to me, is that there is a tonic which, if taken, will enable, and I reemphasize the words "will enable," the taker to lose weight. Regarding the testimony that has been taken in this case in the light most favorable to the Respondent, the conclusion is inevitable that it would be the exception, rather than the usual case, in which a person following the advice which the Respondent says he currently is giving would lose weight. On the other hand, if the remitter takes the advice which was formerly given by this Respondent, he will lose weight, and unless he either goes off of the diet or goes in to see his physician, he may well lose his life, too. The remitter in this situation is not in an enviable position. The substance of it is that his money has been taken away from him by means of misrepresentation. I do not believe that the document which we have as out Constitution permits this type of activity to take place under the umbrella of freedom of speech.

I have listened with interest and attention to the proposed findings of fact and conclusions of law of counsel for both parties. To the extent indicated, those proposed findings and conclusions of law are adopted. Otherwise, those proposed findings and conclusions are rejected because they are contrary to the evidence or because they are immaterial or because they are beyond the scope of this tribunal.

I have concluded as a matter of law that the Respondent is engaged in conducting 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.

Having so concluded, it follows that an order as provided by that statute should be issued against this Respondent.

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1/ Transcribed from oral decision as rendered at close of hearing held October 11, 1973. Minor language changes have been made, but the substance of the decision is unchanged. engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations in violation of Section 3005, Title 39, United States.