In the Matter of the Complaint Against
WEIDER DISTRIBUTORS, INC.
d/b/a JOE WEIDER
55 Maple Street at
Norwood, New Jersey 07648

P.S. Docket No. 3/27

Lussier, Edward F.

APPEARANCES:
Lee H. Harter, Esq.;
James J. Robertson, Esq.;
Law Department, United States Postal Service,
Washington, D.C. 20260 for Complainant

Sheldon S. Lustigman, Esq.;
Bass & Ullman, 747 Third Avenue,
New York, New York 10017 for Respondent

POSTAL SERVICE DECISION

This proceeding is before the Judicial Officer on Respondent's appeal from the Initial Decision of the Chief Administrative Law Judge recommending the issuance of an order under 39 U.S.C. § 3005 based upon his conclusion that Respondent was "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations." The basis for this conclusion was the subsidiary finding that the following representations, alleged in paragraph V of the Complaint, were made by Respondent in its advertising and were materially false as a matter of fact:

"(1) That use of Respondent's product will cause the user to lose 1 pound a day and/or 14 pounds in 14 days;

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"(5) That, 'Even chubby guys who won't even lift a finger can loose (sic) up to a pound-a-day, 14 pounds in 14 days - just drinking the 'SLIMMER' SHAKE' or that these weight losses can be accomplished without the necessity of engaging in physical exercise;

"(6) That use of Respondent's product enables its users to improve their physical condition quickly without the necessity of engaging in physical exercise;

"(7) That the represented weight losses can be accomplished without the necessity of restricting caloric intake;

"(8) That use of Respondent's product is universally safe;

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"(10) That the purchaser of Respondent's product can have their (sic) money refunded if they (sic) are not satisfied."

With respect to Charge 1 above, Respondent's exception to Judge Duvall's findings places great weight upon the fact that the advertised claim of "a pound-a-day, 14 pounds in 14 days" was preceded by the words "up to". Respondent's argument is too technical. See Spiegel, Inc. v. F.T.C., 411 F.2d 481, 483 (7th Cir. 1969), where the court citing Aronberg v. F.T.C., 132 F.2d 165, 167 (7th Cir. 1942), stated that "The meaning and 'impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied'." The words "up to" could conceivably be construed to mean one ounce but no one would reasonably read the total advertisement as being so limited. The general import of this advertisement even with the limiting words "up to" conveys to the general public that a loss of 14 pounds would not be unusual. However, the evidence of record would indicate that such a loss would be rare indeed. Viewed in relation to the entire advertisement the words "up to" exceed the bounds of normal expected business puffing.

The advertisement further implies that the product would last for the 14 day period but the evidence indicates that the 12 cans are to be used at the rate of one full can a day. What the user is supposed to live on the last two days is left to conjecture. When read in its entirety the impression is given that the user can lose one pound a day. Respondent contends that the advertisement reference to being "exceedingly overweight" warns the reader to take the claim as applying to only obese people. In my view that argument fails when considered in the light of the language of the court in Colgate-Palmolive Co. v. F.T.C., 310 F.2d 89, 91 (1st Cir. 1962), that "It should be obvious by now to anyone that advertisements are not judged by scholarly dissection in a college classroom". Respondent's exception to the findings of the Initial Decision with respect to Charge 1 is disallowed.

Respondent's exception to the findings related to Charge 5 of the Complaint follows the same line of reasoning as its exception to Charge 1; namely, that there could be instances where the diet without exercise would produce a 14 pound loss in 14 days. The misrepresentation here is essentially the same as the misrepresentation in Charge 1. The exception is denied for the same reason.

In taking exception to the findings related to Charge 6, Respondent contends that since the advertisement does not mention exercise and since it is common knowledge that loss of weight can improve one's condition, the findings as to Charge 6 must fail. I find myself in agreement with the Chief Administrative Law Judge that the implication in the representation covered by Charge 5 of the Complaint that a "chubby guy who won't even lift a finger can lose up to a pound a day" carries with it to the average reader the sense that there is no need for exercise to achieve the desired result. However, in my view there is not a preponderance of evidence to support the conclusion that the particular representation made in Charge 6 constitutes a material misrepresentation of fact. This exception is allowed.

With respect to Charge 7, Respondent takes exception to the finding that the advertisement makes the representation charged; i.e., that the weight loss can be accomplished without the necessity of restricting caloric intake. There is no contest, or question, that such a representation is false. While the advertisement contains the words "Complete Nutritious Meal-In-A-Glass" it does not advise that the "Slimmer Shake" mixed with one quart of milk will be the user's total daily diet for the 14 day period if the heralded 14 pound loss is desired. Nowhere does the advertisement use the word "diet" or any similar wording to reveal to the user that he or she is going to give up eating. It may be that to the cautious and careful reader the words "Complete Nutritious Meal-In-A-Glass" would flash this danger signal. But viewing the advertisement in its entirety, the slight of hand is sufficient to confound the unwary person whom the law was designed to protect. "Laws are made to protect the trusting as well as the suspicious", F.T.C. v. Standard Education Society, 302 U.S. 112, 116. This exception is disallowed.

Charge 8 which alleges that Respondent represents its product is universally safe was upheld in the Initial Decision on the evidence that certain types of people, for example, diabetics, or persons with lactose intolerance, or those on a restricted salt intake, could conceivably be harmed by adherence to the diet of Respondent's product. The medical testimony was also to the effect that the average person would not be adversely affected. The product label contains a listing of ingredients and one would expect a certain amount of prudence by users who had special physical problems. It is, of course, possible that an individual might not be aware of a physical condition which could be affected by a rigorous diet. It is dubious, however, that any particular diet would be suitable for all persons irregardless of their physical condition. As I read the medical testimony it falls short of establishing that the product is unsafe and accordingly this exception is allowed.

One other item remains and that is Charge 10 that purchasers can have their money refunded if they are not satisfied. Respondent complains that the evidence introduced in support of this charge involved an instance occurring after the date of filing of the Complaint. Respondent was on notice of the charge and there is no indication that its ability to defend against such an allegation was impaired in any way by the fact that the particular evidence in proof thereof was developed after the Complaint was filed. If anything, one would expect requests for refunds to be more expeditiously processed once a company is on notice that its representation in this regard is being officially questioned. While the burden here is upon the Complainant to establish the falsity of the representation, Respondent, who offered no evidence whatsoever in its own defense on this point, can hardly complain if the evidence that is introduced, even though it be but one instance of a postal inspector using a test name, reveals a lack of bona fide intent to refund money. There is no reason to believe that the Respondent's handling of the test refund was any different from its normal procedures. This exception is disallowed.

Conclusion

Respondent's exceptions have been considered and, to the extent indicated above, are disallowed with the result that the ultimate conclusion of the Initial Decision is affirmed. A remedial order pursuant to 39 U.S.C. § 3005 is being issued contemporaneously with this decision.