In the Matter of the Complaint Against

SLUMBER-SHAPERS, INC.
90 Beacom Boulevard at
Miami, Florida 33135 and at
276 Park Avenue South Suite 500
New York, New York 10010 and

d/b/a THE FITNESS BAZAAR, INC.
90 Beacom Boulevard at
Miami, Florida 33135

P.S. Docket No. 2/20;

APPEARANCES:

James J. Robertson, Esq.
Law Department
United States Postal Service
Washington, D.C. 20260
for the Complainant

William A. Daniel, Jr., Esq.
66 West Flagler Street
Miami, Florida 33130
for the Respondent

Wenchel, Adam G.

POSTAL SERVICE DECISION

Background and Facts

The above-captioned matter came on for hearing before the Judicial Officer on August 23, 1973.

Upon Respondent's answer not contesting allegations of the complaint, the Administrative Law Judge to whom the proceeding was assigned issued an Initial Decision upholding all of the charges specified in the complaint. Respondent did not appeal and the Initial Decision having thereupon become the final Postal Service Decision, Postal Service Order No. 73-65 was issued on June 1, 1973, against mail directed to Slumber-Shapers, Inc. at the addresses shown in the caption.

On July 18, 1973, Complainant petitioned for a supplemental order under 39 C.F.R. 952.30 ^1/ alleging that Respondent is attempting to evade Order No. 73-65 by conducting the same enterprise or an enterprise similar to that on account of which the order was issued. Respondent in reply denied it was attempting to evade the order. At the hearing on the petition held on August 23, 1973, because the facts were not in dispute, neither party offered evidence. However, argument of Counsel was heard. In view of the able and full oral presentation made by Counsel, written briefs have not been requested.

Since the issuance of Order No. 73-65, Respondent has been recording the names and addresses on the return cards of mail returned to senders under the order and sending the following letter to the original correspondents:

"Thank you for your remittance and order for your Slumber-Shaper Kit(s). Due to a misrepresentation which has been brought to our attention regarding the advertised product, we have withdrawn this advertisement to which you responded. Your remittance and coupon are being returned to you.

"Enclosed you will find the corrected advertisement for the Slumber-Shapers plan together with the self-addressed, postage paid envelope. It is not necessary to re-write your remittance or order coupon. Simply mail back your original returned remittance and order coupon to The Fitness Bazaar, Inc., in the enclosed envelope, and your order will be promptly forwarded."

The advertisement accompanying the foregoing letter is a modified version of the advertisement upon which the original complaint was based.

Contentions of the Complainant

Complainant contends first that because the resolicitation does not indicate in any way either the nature or the extent of the false representations in the advertisement to which the purchasers responded, remittances accompanying orders in response to the resolicitations are obtained by means of false representations contained in the original advertisement. Second, Complainant contends that the resolicitation contains representations that are false in some of the same respects that representations in the original advertisement were found to be false.

The Current Representations

Although Complainant contends that the current advertisement contains five of the seven false representations charged and found with respect to the original advertisement, he relies primarily on the contention that the new advertising still contains representation (3) of the complaint and (c) of the prior decision " t hat Respondent's product will take up to three inches off a person's waist, tummy, hips, buttock or thighs in just one week even when used during sleep periods". It is not disputed that Respondent continues to represent that use of the product will cause the results represented. What is in dispute is whether Respondent still represents that the result can be achieved "even when used during sleep periods". To support the allegation that such is represented, Complainant points to the name of the product itself; namely, "Slumber-Shapers".

The name "Slumber-Shapers" appears eight times in the six paragraphs comprising the body of the current advertisement and three times in the order blank. As has been held in other cases a supposedly descriptive product name is in itself a representation of the qualities of the product. ^2/ It is clear, therefore, that Respondent continues to represent that Slumber-Shapers work as represented "even when used during sleep periods".

Respondent contends that Complainant cannot now charge that the name is a representation because, Respondent says, the name was not charged as a representation in the original complaint. It is true that in order to obtain a supplemental order, Complainant must show in a case based on new advertising that Respondent is making a representation found in the original proceeding to have been falsely made. This is what Complainant has established. The prior complaint and decision were not based on specific portions of the advertisement, but on the advertisement as a whole. While Respondent has made substantial changes in the advertisement to eliminate other representations, its continued use of the name Slumber-Shapers ^3/ as a part of the solicitation continues a vice found in the earlier advertisement.

Although representation (3) of the complaint s found to be made currently, the question of whether representations (2), (4), (6) and (7) have also been made is left for determination. Representations (2), (4), and (7) deal with weight loss claims. The charges in the complaint differentiate between weight reduction claims and size reduction claims. Except as may be implied from a single reference to "fatty tissue", Respondent has eliminated claims of weight reduction from the new advertisement. For the foregoing reasons and taking into account the fact that the reference to "fatty tissue" is comprehended in charge (6), I find that Complainant has not established that representations (2), (4), and (7) are made in the current advertisement.

Charge (6), insofar as the current advertising is concerned, relates to the statement that "waffle-textured material works on fatty tissue with every movement." That statement is derived from the statement in the original advertisement "Waffle-textured material massages away fatty tissue with every movement." It is clear that the phrase "works on" is intended to convey the meaning of "massages away". Another consideration is that a person who has read and responded to the original would be preconditioned thereby to read the meaning of massage into the statement in the current advertisement.

I find, therefore, that the current advertisement continues to make representation (6); namely, "That Respondent's product massages away fatty tissue with every movement."

Continuation of Original Representations

By the resolicitation, Respondent obviously intends to retain as far as possible the benefits of the original advertising. Such a procedure requires considerable care if the promoter is to retain at least a partial benefit from the initial advertising without continuing to base his appeal for orders in substantial measure on the prior false representations. If in resoliciting persons who have responded to its previous advertisement Respondent had listed the representations found to have been falsely made and then stated explicitly that Respondent did not claim that Slumber-Shapers would produce those results, the effect of the earlier representations would have been vitiated in the absence of contradictory representations elsewhere. That is not to say that only the foregoing formulation would be effective. But, we have here only the statement that the original advertisement contained a misrepresentation without any indication of the nature of the misrepresentations. Upon consideration of the promotional materials used, I must conclude that the resolicitation of customers as practiced here by the Respondent is the continuation of the scheme or device based on the prior false representations.

Conclusion

Upon consideration of the record before me including the argument of Counsel, I find that Respondent is evading or attempting to evade the provisions of Postal Service Order No. 73-65 by continuation of the same or similar enterprise covered by that order and is continuing to engage in conducting a scheme or device for obtaining money through the mail by means of false representations. Accordingly, a supplemental order under 39 U.S.C. 3005 and 39 C.F.R. 952.30 is being issued herewith.

____________________

1/ "When the General Counsel or his designated representative shall have reason to believe that a person is evading or attempting to evade the provisions of any such order by conducting the same or a similar enterprise under a different name or at a different address he may file a petition with accompanying evidence setting forth the alleged evasion or attempted evasion and requesting the issuance of a supplemental order against the name or names allegedly used." (The first sentence of 39 C.F.R. 952.30)

2/ See e.g., Carter Products, Inc. v. F.T.C., 268 F.2d 461, C.A. 9-1969, (Carter's Little Liver Pills); Bakers Franchise Corp. v. F.T.C., 302 F.2d 258, C.A. 3-1962, (Lite diet); El Moro Cigar Co. v. F.T.C., 107 F.2d 429, C.A. 4-1939 (Havana Counts); Masland Duraleather Co. v. F.T.C., 34 F.2d 733, C.A. 3-1929, (Duraleather).

3/ During the course of the hearing, Respondent's Counsel volunteered that Respondent could readily change the name of the product from Slumber-Shapers to Slim Shapers. The effect of such a change in any future proceeding is not for determination now.