In the Matter of the Complaint Against

HARTFORD PUBLISHING CORP.,
79 Savage Road and
P. O. Box 932 at
Denville, New Jersey 07834

P.S. Docket No. 2/152

H. Richard Hefner, Esq.,
Law Department, United States Postal Service,
Washington, D. C., for Complainant

Charles B. Chernofsky, Esq.,
One Blue Hill Plaza, Pearl River,
New York, for Respondent

Before : William A. Duvall , Chief Administrative Law Judge

INITIAL DECISION

^1/ This proceeding was initiated October 19, 1973, by the Assistant General Counsel of the United States Postal Service in charge of the Consumer Protection Office (Complainant) by the filing of a complaint in which it is alleged that Hartford Publishing Company of 79 Savage Road, and P. O. Box 932 of Denville, New Jersey (Respondent) are 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, Title 39, United States Code. The substance of the complaint is that the scheme or device being employed by the Respondent is the sale of a weight reduction program, called a Digital Diet Method, which is represented as being capable of producing results far in excess of the results that can actually be achieved by following the program.

Respondent has suggested that what is being attempted by the Complainant in this case is a violation of the Respondent's rights under the first Amendment to the Constitution in terms of the Respondent's freedom of speech. This claim is made because of the fact that the program which is being sold or the booklet which is being sold by the Respondent is set forth in a printed document. Nevertheless, what the Respondent is selling is this method which it is claimed will produce loss of weight.

Respondent states as a precedent in this case the Matter of Parker Publishing Company , Postal Service Docket 3/80 and also Blount vs. Rizzi , 400 U.S. 410, but in both of these cases the issue was freedom of the press. That issue is not the issue in this case and so those precedents are not apt in this case.

The specific charges in the complaint against the Respondent are found in paragraph no. 3 of the complaint, and these charges are stated as follows:

                     "(3) By means of the advertisements referred to above
                            Respondent expressly and impliedly represents to the
                            public in substance and effect:

                            a .                           'The Digital Diet' is a means of
                                                                overcoming
                                                                obesity through eating.
                            b .                           'The Digital Diet' would succeed
                                                                in the reduction
                                                                of body weight and fat although
                                                                prior adherence to
                                                                low calorie diets has failed.
                            c .                           'The Digital Diet' is a permanent
                                                                remedy for
                                                                obesity.
                            d .                           Adherence to 'The Digital Diet'
                                                                does not require
                                                                the exercise of willpower.
                            e .                           Through adherence to 'The Digital
                                                                Diet' an obese
                                                                person will achieve the rapid and
                                                                dramatic
                                                                reductions of body weight and fat
                                                                specified in
                                                                Respondent's advertisement.
                            f .                            'The Digital Diet' does not
                                                                involve calorie
                                                                counting.
                            g .                           An adherent to 'The Digital Diet'
                                                                will
                                                                successfully reduce body weight
                                                                and fat while
                                                                ingesting unlimited quantities of
                                                                '. . . 35 common
                                                                foods which have ratio factor
                                                                designations between
                                                                4 and 10 . . . .'"

Of course, the Complainant charges that these representations are materially false as a matter of fact.

Because of the stipulation into evidence of Complainant's Exhibits C1, C2, and C3, it has been established that the Respondent does advertise its product and that the Respondent does seek remittances through the mail; that in return for remittances received through the mail, the product is mailed by the Respondent to the remitter.

A determination or whether the Respondent in fact makes the representations which are set forth in the complaint requires an examination of the advertising material used by the Respondent and the application of the rule stated in Donaldson vs. Read Magazine , 333 U.S. 178, to the effect that advertising material, when it is measured for its effect, is to be considered as a whole and from the standpoint of the impact that the advertising material probably produces upon persons of ordinary minds.

In a subsequent case, Gottlieb vs. Schaffer , 141 Fed. Supp. 7, it was held that in considering advertising matter, the effect that it would have even upon the gullible, the trusting, the ignorant, the unthinking, and the prejudiced is to be taken into consideration.

In regard to Charge a above, the caption of the Respondent's advertisement has the following language, "TO LOSE 12 LBS. IN ONLY 1 WEEK-EAT] EAT] EAT]" It appears that what the Respondent announces right at the outset of its advertisement is that in order to lose weight, one may, or perhaps even must, eat.

Charge B is predicated upon language found in the second paragraph of the advertisement, which reads, "You probably failed before because you couldn't withstand the bland formulas, hunger pangs and tiresome calorie counting that the average diet demanded."

So the charge as it is stated in paragraph 3 of the complaint, certainly is a reasonable interpretation of the language appearing in the second paragraph of the advertisement.

Charge C of the complaint is a reasonable interpretation of the language which appears in the first paragraph of the Respondent's advertisement. "If you have failed to permanently slim down before, why don't you try what a number of successful fat-fighters have done and stuff your tummy full while watching the bulges disappear like magic overnite?"

In paragraph 4 of the Respondent's advertisement, the author of the remedy described by the Respondent is said to be "a fat-fighting failure of many years who admits to having little will power," but then it is said that this gentleman "seems to have stumbled onto a satisfying sure-fire system." This language indicates that for those who have previously been unable to stay on a diet by reason of a lack of willpower, success will be assured by following the Respondent's program without the necessity to exercise willpower.

Charge E is predicated on, among other language, the statement that appears in the last paragraph of the Respondent's advertise- ment, "They" and that is a word in which the Respondent refers to himself, "pledge a refund if you fail to lose 8-12 pounds the first week." Also, in the caption of the advertisement, again there is the reference that if you want to lose 12 pounds in only week, you "EAT] EAT] EAT]"

There are 2 or 3 references in the advertisement to the fact that following the program of the Respondent does not involve calorie counting, so that representation clearly is made and the representation which is set forth in paragraph 3G of the complaint is based on language which appears in the fourth paragraph of the Respondent's advertisement which says, "His adherents merely choose from 35 common foods which have ratio factor designations between 4 and 10 and they lose weight extremely fast."

Regarding this advertisement of the Respondent as a whole and measuring it by the yardstick set forth in the cases cited earlier, I find as a fact that the Respondent does make the representations which are set forth as charges in the complaint.

It now must be determined whether those representations which have been found to be made by the Respondent are true or false. Testifying on this matter was Dr. Vincent Cordaro, a medical doctor who by virtue of his education, training, and experience is qualified to testify in the field of medicine which is involved in this proceeding.

Dr. Cordaro testified that the causes of obesity are given broad categories of description, such as exogenous and endogenous. Exogenous obesity is that obesity which is the result of ingesting a higher caloric quantity than one expends in performing his daily functions or work. The treatment of choice of the medical profession of a person who is within that category described as exogenous obesity is consultation with the physician who will take a history of the individual and determine the cause of his obesity and then prescribe for such an individual a diet and exercise program which will assure that the individual consumes a balanced diet which consists of somewhat fewer calories than will be expended by the individual in the conduct of his daily life.

The doctor will not recommend a dietary regimen which can cause a drastic loss of weight. The loss of weight which will be attempted is from 1 1/2 to as much as 2 1/2 pounds per week. The diet which is regarded as the proper diet consists of approximately 20 percent protein and the remainder of the diet will consist of carbohydrates and fats in such proportions as the doctor determines to be best suited to meet the needs of the particular patient. There is no one diet which is suitable or applicable to all persons.

Turning now to the program being sold by Respondent, certain foods are listed and a determination is made of the caloric content of the given quantity of each such food. Then the protein content of each such food is learned and the protein content is then divided into the caloric content and the resulting figure is given a designation which is called the "factor." Then a number of different foods are listed and each different food is assigned a factor which has been determined in the method just described.

The individual is told to consume foods having factors ranging between 4 and 10 until the individual has lost 15 pounds. Then the person may branch out and eat others of the foods which are listed but which have factors higher than 10. The person is encouraged to watch his weight during this period of his dieting. If it appears his weight is going up, he is to return to the diet consisting solely of foods having factors of 10 and under. The person who buys the product of the Respondent is given this list of foods and he is told the method by which the factors are determined, but nowhere is the individual told how much of any food he should eat at a particular meal, during a day, or for any particular time. The person is left to his own resources, or perhaps his own appetite, as the means of determining how much he is going to eat.

Advertising again to the advertisement, we are reminded that the advertisement says, "TO LOSE 12 LBS. IN ONLY 1 WEEK - EAT] EAT] EAT]"

Again there is a statement in the advertisement about "stuffing one's tummy" so that apparently one can eat whatever quantity one chooses and still lose weight. But it's a matter of common knowledge that there are many people who are obese who are compulsive eaters. Even if such people want to limit the caloric content of the food they ingest, there's really no way by which they are able to do this by utilizing the program that is being sold by the Respondent. Unless they do limit the caloric content of the food they ingest, they're not going to lose weight. To say that one may overcome obesity by following this method through eating is false as a matter of medical fact.

In regard to charge 3B of the complaint, there is nothing about this Respondent's program which will permit or cause a person to adhere to this diet that is nor present in other low-calorie diets. The individual is not told to restrict the quantities of foods that he takes. He is not told the frequencies, so far as I've been able to determine and it has not been pointed out to me, with which one eats, so that there's nothing inherent about this diet which would cause it to be more successful than other low-calorie diets.

If one stays on this program for a sufficient length of time, the testimony is that, "There will be a loss of weight." It follows that if one stays on this diet for a further length of time and follows the instructions, that when one sees one's weight increasing, he goes back to the foods having lower factor designations, and limits the quantities, his weight will be decreased. Of course, one cannot go on any diet for a short period of time and achieve a weight loss, then go off the diet and expect that weight loss to be permanent. But this remedy if followed, based on the testimony in this record today, will be a permanent remedy for obesity.

In regard to Charge D of the complaint, the Digital Diet does require the exercise of willpower in order to adhere to it. Any diet requires the exercise of willpower in order to permit one to remain on it--that is, any diet which restricts the amount of food below that which the dieter was previously accustomed to ingest.

The testimony in this record in regard to Charge 3E is that, while it is possible that certain extremely obese individuals may lose as much as 8 to 12 pounds in a week as promised in the advertisements, the instances in which that would occur are extremely rare. They would be the exceptional case and certainly not the usual case.

The charge that is stated in 3F, namely that the Digital Diet does not involve calorie counting, is a bit ambiguous in my view. The Digital Diet actually does not appear to involve calorie counting on the part of the purchaser. Of course, the counting of the calories was done by the Respondent when the preparation of the table, which begins on page 8, was completed. I find that while this charge may be technically false, it is not a material misrepresentation.

There remains the last charge in the complaint, namely, that an adherent to the Digital Diet will successfully reduce body weight and fat while ingesting unlimited quantities of 35 common foods which have ratio factor designations between 4 and 10. That representation is clearly made and is just as clearly false because in order for there to be a weight loss there must be a net deficit in caloric ingestion. In other words, there must be a greater consumption of calories than are ingested, so that the eating of unlimited quantities of any food regardless of what it is, certainly would not produce a loss of body weight and fat.

Summing up the findings in regard to the falsity of the charges stated in the complaint, I find that Charges A, B, D, E, and G are false. I find that there is insufficient proof of the falsity of Charges C and F; while they may be technically false, they are not materially false as a matter of fact, particularly as to the charge set forth in paragraph 3F of the complaint.

In view of the foregoing findings of fact, it follows that as a matter of law the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of materially false representations as proscribed by section 3005 of Title 39, United States Code.

The foregoing findings of fact and the conclusion of law are established by the evidence of record in this case which is amply sufficient to support the issuance of the order, U.S. Health Club, Inc. vs. Major , 292 F. 2d 665.

A mail stop order as provided in Title 39 U.S. Code 3005 should be issued against this Respondent.

__________________

1/ Transcribed from oral decision as rendered at close of hearing held November 21, 1973. Minor language changes have been made, but the substance of the decision is unchanged.