In the Matter of the Complaint Against

PARKER PUBLISHING COMPANY, INC. at
West Nyack, New York 10994

P.S. Docket No. 1/84

Rudolf Sobernheim Administrative Law Judge

APPEARANCES:
James J. Robertson, Esq.
Consumer Protection Office
Law Department U. S. Postal Service
for the Complainant

John M. Callagy, Esq.
Townley, Updike, Carter & Rodgers
220 East 42nd Street
New York, New York 10017
for the Respondent

INITIAL DECISION

This is a proceeding by Complainant against Respondent under 39 U.S.C. 3005 which authorizes action against Respondent upon evidence satisfactory to the Postal Service that Respondent "is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representation."

Complainant alleges that Respondent is engaged in such scheme in the promotion of a book, entitled "The Miracle Diet for Fast Weight Loss" by Sidney Petrie. Specifically, Complainant alleges that by the use of advertising material Respondent, directly or indirectly, in substance and effect represents:

"(1) That an individual can eat the 'miracle fat-burning foods' listed in the diets set forth in the aforementioned publication, 'in place of, or in between, your regular meals--and enjoy more variety than you have been gaining weight on. ONLY NOW WILL YOU LOSE WEIGHT';

"(2) That an individual who adheres to the diet propounded in the aforementioned publication may, '[r]est assured that it won't cause . . . the slightest discomfort whatsoever . . . ';

"(3) '. . . you can lose 100 lbs. and more by actually adding to your food intake--but this is Petrie's promise to you . . . and he backs it up with proof.';

"(4) That the consumption of 'miracle fat-burning foods' listed in the aforementioned publication will result in the elimination of fat cells from the body of an individual.

"(5) The aforesaid representations are not supported by the content of the book 'The Miracle Diet for Fast Weight Loss' and Respondent's advertising representations to the contrary are materially false as a matter of fact."

A copy of the advertisement, alleged to have been used by Respondent, was attached to the complaint.

Respondent denied the allegations of the complaint essentially on the ground that it had discontinued use of the advertisement on which the complaint was based about six months before the complaint was filed and that its revised advertisement, used instead, accurately reflected the contents of the book which it purported to describe.

A hearing was held on 29 June 1972 at which both parties presented testimonial and documentary evidence. As a result, both the original and the revised advertisement of Respondent are part of the record of this proceeding. Subsequent to the hearing the administrative law judge who had presided thereat retired without issuing an initial decision. The matter was re-assigned to the undersigned whose decision is rendered herewith. In reaching his decision, the undersigned found that his decision does not rest on determining the credibility of the witnesses presented by the parties. Hence, the question of reopening the hearing does not arise. See Gamble-Skogmo, Inc. v. F.T.C. , 211 F.2d 106 (8th Cir., 1954); Brooklyn Eastern District Terminal v. U.S. , 302 F. Supp. 1095 (E.D.N.Y., 1968); cf. Utica Mutual Insurance Co. v. Vincent , 375 F.2d 129 (2d Cir., 1967) as to constitutional implications.

FINDINGS OF FACT

1. Respondent, a wholly-owned subsidiary of Prentice-Hall, Inc. (T. 79), is the publisher of a substantial list of self-improvement books, including books on health for laymen (T. 80). Most of Respondent's book sales are made by mail advertising but sales are also made to libraries and department stores (T. 83). The book here involved, like others, was offered on free trial and the bulk of the sales made in this manner. A minor portion of the purchasers paid cash in advance. Somewhat over twenty per cent of those who ordered the book returned it and, if they had paid in advance, received refunds (T. 85, 88, 112).

2. The book involved in this proceeding was published in 1970 and by mid-1972 about 80,000 copies had been sold (T. 82), of which 3,500 copies were sold in stores (T. 118). The sale of the book was promoted by Respondent by an advertisement which it used to obtain money or property through the mails, to wit: the purchase price of the book. The advertisement (CX 2, CX 8). The term "obesiologist" is not listed in modern dictionaries. See WEBSTER'S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE (2d Ed., 1957); WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1962); THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (1966, 1967); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (24th Ed. 1965) (RX 4). In the vernacular such a person is referred to as a "fat doctor" (T. 74). The use of the word "clinical" in describing the author is uncertain, if not misleading, in its meaning (T. 77).

3. Concededly, the original advertising (Ex. CX 2), relied on in the complaint, was used by Respondent in the manner heretofore described until October 1971 (T. 125) when it was revised in response to a letter of 8 October 1971 in which the Postal Service informed Respondent that in its view the advertisement made claims unsupported by the text of the publication advertised (RX 6). Prior to such revision Respondent submitted the Postal Service letter to the author who agreed that the advertisement might be considered ambiguous or inaccurate and proposed that it be revised to meet criticism in this regard (RX 7). The advertisement was revised accordingly (CX 8) and the Postal Service was so advised under date of 22 October 1971 (RX 8). When nothing further was heard from the Postal Service, Respondent began to use the revised advertisement (CX 8) in late December 1971 (T. 125).

4. This proceeding was commenced in April 1972 and shortly thereafter Respondent was advised that the revisions of the original advertisement (CX 2) failed to satisfy the Postal Service (RX 9). The revised advertisement (CX 8), except in the respects more fully stated below, was identical in language, layout and typography with the original advertisement. The use by Respondent of the revised advertisement represents, therefore, in the main, a continuance of the representations made before the revision. Although Complainant did not formally amend its complaint to include the revised advertisement, Respondent and its counsel themselves relied on the revised advertisement in their defense against the complaint herein, were plainly on notice that the revised advertisement was alleged to be subject to the same strictures as the original advertisement (except as the revisions met the Complainant's position (RX 8)) and were, hence, not disadvantaged in their defense by consideration of both the original and the revised advertisements and their admission in evidence as part of the record in this proceeding. The complaint will, therefore, be deemed to include the revised advertisement in its charge against Respondent.

5. The revised advertisement meets substantially two objections stated by Complainant in its October 1971 letter (RX 8) and in its complaint (pars. II(1) and (4)). It makes it clear that the book which it advertises recommends consumption of the alleged "MIRACLE FAT-BURNING FOODS" in place of and not in addition to the reader's regular food intake and it no longer asserts that fat cells vanish as the miracle fat-burning nutrients are being consumed but only that their size is being reduced.

It continues to assert, however, that the dieter who follows the diet outlined in the book sold by Respondent will not be caused the slightest discomfort (Compl., par. II(2)) and that he or she can lose 100 lbs. and more by actually adding to food intake).

Moreover, Respondent refers in the revised section of the advertisement and throughout its text (CX 8), as before (CX 2), to the consumption of miracle fat-burning foods prominently in capital letters.

6. We need not consider further the original advertisement (CX 2) since its use was discontinued prior to the commencement of this proceeding and no showing was made that at the time of the hearing or at any time thereafter Respondent was still receiving monies through the mail as a result of its use. Hence, the complaint as to false representations contained therein has become moot and only the question of false representations in the revised advertisement (CX 8) need be addressed.

7. The first question is whether, as Complainant charges (Compl., par. II(5)), the revised advertisement falsely represents the contents of the book which it promotes. The core of the book is a series of detailed menus composed of high protein foods, such as ordinary (T. 69) fruits, vegetables, fish and meats, extending over a thirty day period and with caloric values of 600, 800, 1000 and 1200 calories daily.

This section is followed by two sections on the preparation of a great variety of dishes and the selection of foods and, later, by a section on diets for special uses. The nub of the proposed diets, apart from careful food selection and limitation of caloric intake, lies in the division of the daily restricted food ration into six meals instead of the usual three rather than in any actual increase in daily food consumption. .

8(a). Nowhere in the book is there a reference to "MIRACLE FAT-BURNING FOODS" and it is admitted that this phrase is the invention of Respondent's copywriter (T. 106).

(b) The author of the book promises in an introduction preceding the table of contents (CX 6A, p. 7) that his diet enables the dieter "to lose 10, 20, 50, even 100 pounds to restore your normal weight." The text proper of the book does not repeat any such statement nor does it state that the dieter "can lose 100 lbs. and more by actually adding to [his] food intake", nor does the author so promise. It refers only in passing to the case of one of the author's clients who lost 108 lbs (CX 6A, p. 28) and to another case where the diet used by the client was increased from a bare 875 to 1150 calories with a switch to high protein foods from a diet rich in sugar and starch (CX 6A, p. 24). Clearly, the change in diet and not the increase in modest caloric food intake is indicated as the cause of that client's subsequent weight loss. The circumstances of these cases, such as weight before diet started, the period during which weight loss was achieved, normal weight and weight attained or attendant health conditions, are not stated and these two isolated instances substantiate neither the promise of the author in his preface nor, which is the point here, the sweeping assertion of the advertisement (CX 8). Nor is any other part of the book pointed to as supporting the advertisement (See T. 111, 129).

(c) The author also promises (CX 6A, p. 7) that the dieter will "[d]rop eight to fifteen pounds a month from [his] weight without ever feeling hungry." In the advertisement this statement is expanded into an assurance that "FAT-BURNING . . . [w]on't cause you the slightest discomfort whatsoever" (CX 2, CX 8, p. 2). Of the statements in the book cited by Respondent as supporting its advertisement (T. 107-109), those on pages 18, 19 and 63 refer to absence of a feeling of hunger; the statement on page 21 refers to satisfaction attained after the diet has been completed; no applicable statement is found on page 31 and the statement on pages 234 and 235 merely uses words such as "easy to stay on", "never hungry", "fastest ever", put into the mouths of "[t]housands" of anonymous men and women when allegedly referring to their dieting experience.

9. On the basis of the foregoing findings and the record as a whole I find that the advertisement used by Respondent in the mail order sale of the book, in its revised form (CX 8) falsely represents the book's content in that the revised advertisement falsely represents that the dieter:

a. will lose weight by consuming "MIRACLE FAT-BURNING FOODS" while the book itself neither mentions nor lists such foods;

b. will not experience "the slightest discomfort" while following the prescribed diet while the book itself merely represents or promises that the dieter will not feel hungry;

c. "can lose 100 lbs. and more by actually adding to [his] food intake" while the book itself makes no such statement and merely promises weight loss of 20, 50 or 100 lbs in the author's preface.

10. The record, as presently constituted, is insufficient for a finding that the representations regarding weight loss, fat-burning and absence of feeling of hunger, made in the book itself, are untrue. The only medical testimony presented by Complainant is that of a physician, formerly a general practitioner and currently employed by the Government and assigned to work with the Postal Service (T. 57-58), who testified that in his opinion a 1200 calorie diet would create some psychological and physical discomfort. He testified further that in his treatment of patients for obesity as a private practitioner hunger had been their main complaint and they were thinking about food a great deal of the time. The witness was not asked whether his diets were similar to that sponsored in the book and whether they provided for frequent, though limited, food intake on which the book's author apparently relies to combat and avoid feelings of hunger in his clients. For reasons hereinafter stated it is not necessary to resolve this matter and make a findings as to whether the statements in the book regarding absence of a feeling of hunger are false.

CONCLUSIONS OF LAW

1. Respondent is engaged in a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of 39 U.S.C. 3005.

2. Respondent is in violation of 39 U.S.C. 3005 even though it offers the book on approval, liberally permits its return and refunds the purchase price to those who have paid for the book and return it. Parker Publishing Co., Inc. , P.S. Docket No. 3/41 (1970); same , P.S. Docket No. 3/80 (1971).

3. Respondent's revised advertisement as a matter of law falsely represents the contents of the book sold by Respondent in the respects stated in Findings 5 and 8.

4. To the extent that the revised advertisement corrects the misrepresentation alleged in paragraphs II(1) and (4) of the complaint, as stated in Findings 5 and 6, the proceeding has become moot.

5. The fact that Respondent's scheme or device involved the sale of a book does not raise any constitutional First Amendment question where its sale is promoted through false representations of its content in the advertisements used to obtain money or property through the mails. An order barring such a scheme or device may falidly be issued. Parker Publishing Co., Inc. , P.S. Docket No. 3/41 (1970). See same , P.S. Docket No. 3/80(1971) and Brentwood Research , P.S. Docket No. 1/173(Postal Service Decision) (1973), where this matter is fully discussed; Lydia Feldman , P.S. Docket No. 1/202 (1973) following Brentwood Research , supra .

6. In view of the findings and conclusions upholding the complaint herein on the ground stated I find it unnecessary to make and, in the exercise of the discretion entrusted to me by law, abstain from making any findings as to the truth or falsity of the contents of the book itself.

7. Accordingly, it is recommended that an order in the form attached as provided in 39 U.S.C. 3005 be issued.