In the Matter of the Complaint Against

BRENDA HARDY and BRENDA HARDY RESEARCH,
11848 Vose Street at
North Hollywood, California 91605

P.S. Docket No. 3/29

William A. Duvall Chief Administrative Law Judge

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

David M. Brown, Esq.,
Fleishman, McDaniel, Brown & Weston,
6922 Hollywood Boulevard,
Hollywood, California, for Respondent

INITIAL DECISION^1/

This proceeding was initiated on April 2, 1974, when the General Counsel of the United States Postal Service filed a Complaint in which it is alleged that Brenda Hardy, and Brenda Hardy Research of North Hollywood, California, are engaged in 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.

A timely answer to the Complaint was filed on behalf of the Respondent and in the answer, among other things, it was indicated that no personal appearance would be entered at the hearing on behalf of the Respondent. Respondent therefore requested the matter to be determined in accordance with the provisions of Paragraph (b) of Section 952.11 of the Rules of Practice, which provides, in substance, that in any case in which Respondent files answer to the Complaint, but does not appear at the hearing, the Presiding Officer will receive proof offered by the Complainant and proceed to issue a decision.

According to the testimony of the investigating Inspector, this matter first came to his attention when he received through the mails an unsolicited advertising circular from the Respondent, in which the benefits of this weight reduction plan were extolled. Shortly thereafter, a citizen of Washington, D. C., brought to him a circular being used by the Respondent to set forth the claim of weight reduction advocated by this Respondent.

There have been received in evidence and identified by the Inspector the following Exhibits:

C-1, which is the envelope bearing a return card of the Respondent, addressed to Florence Doncho of Dexter, New Mexico. Florence Doncho is a test name used by the Inspector in connection with his duties insofar as they relate to the investigation of businesses thought to be operating in violation of Section 3005 of Title 39. C-2 is the advertising circular which the Respondent uses, a copy of which circular is attached to this decision as Appendix A.

After receiving this circular, the Inspector, using a Postal Service For 688 (Ex. C-3), wrote to the Postmaster at Dexter, New Mexico, enclosing a money order in the required amount, which in this case is $5.95, and ordered the product.

Shortly thereafter, the Inspector received the Respondent's product, namely, the dietary plan sert forth in the booklet entitled, "My Secret for Reducing." (Ex. C-4)

Looking at the advertising circular used by the Respondent, and comparing that material with the charges set forth in the Complaint, it is found as a fact that the Respondent does make the representa- tions which are set forth in the Complaint.

Specifically, charge A of the Complaint is that the Respondent represents "That ingestion of the respondent's tonic will result in a loss of weight." That, of course, is the tenor of the entire advertising piece used by the Respondent, but specific language on which this charge is based is found in a number of places, including, but not limited to, the next to the last sentence of the first paragraph of the second column of the circular, where the Respondent says: "Within the first week, I had lost 12 pounds ," and also including the second paragraph of the third column of the advertising circular, where the Respondent says: "Day after day, letters come pouring into my mailbox from persons who have tried this method expressing their joy and gratitude."

Charge B of the Complaint is "That said weight loss will be effected regardless of the cause of the user's excess weight."

Nowhere in this advertising circular is there any qualification or limitation as to the reason for the overweight of the persons to whom Respondent endeavors to sell this diet program. Therefore, it can only be interpreted to mean that regardless of the cause of the weight, this method is the assured way of losing weight.

Charge C in the Complaint is "That said weight loss will consist of reduction of fat tissue." In the third paragraph of the first column of the advertising circular, the Respondent talks about the gaining of weight because one's body is not able to convert all of the calories, and so forth, into energy. He next says that those unconverted calories collect on the body in the form of useless fat, and, then, there is the language about losing weight. Therefore, if there is on the body excess tissue which is in the form of fat, and one is going to lose weight, it clearly follows the tissue that is going to be lost is the fat tissue.

Charge D of the Complaint is: "That loss of 12 pounds in one week may be considered typical of the results of using Respondent's tonic."

At one point in the circular, the Respondent states categorically: "Within the first week, I had lost

12 pounds ]" This is followed by the statement that "My astonished friends tried it and reported similar results." Therefore, it is certainly not represented as being an unusual occurrence that an individual would be able to loss 12 pounds in one week by following the reducing plan offered for sale by the Respondent.

Chareg E in the Complaint, which is the final charge, is: "That the tonic alters the body's metabolic processes, causing it to convert all calories into energy, rather than permitting the formation of fat." The language on which this charge is based is found, among other places, in the last paragraph of the second column of the advertising circular which is appendix A. There the Respondent says this: "Just think what this means to you] While you follow the simple directions for using 'MY SECRET' all the starches, carbohydrates, proteins, and fats you consume are converted into energy--instead of fat." Therefore it does not take any great amount of interpretation to determine that the Respondent makes the representation which is set forth in Charge E of the Complaint.

On the question of the efficaciousness of the diet plan being offered for sale, and sold through the mails by the Respondent, the Complainant called Dr. Vincent F. Cordaro, a medical doctor, who by virtue of his education, training, and experience, is well qualified to testify in the field of medicine which is involved in this proceeding.

Dr. Cordaro testified that obesity is the presence of an excess amount of weight. All obese persons are overweight, but a person may be overweight and yet not be obese. This is true in certain cases such as weight lifters and the like. There are basically two causes of obesity, and the first and by far the most frequently encountered is overeating, or the ingestion of more calories than are consumed by the body in its daily activity. Another cause of obesity is the malfunction of certain glands, such as thyroid and the pituitary glands.

To help a person overcome his overweight problem, the method is to try to assist that person in gaining an insight into the cause of the problem, whether that cause is psychological or physical in origin. In addition, the physician will attempt to build up the willpower of the patient in order to help that patient stay on the diet which the physician will prescribe. That diet is a reduced calorie diet, which is well balanced in terms of the presence of the proper proportions of fats, carbohydrates, and proteins.

For those persons overweight by reason of glandular malfunction, the method of treatment in use by the medical profession is to conduct such studies and tests as are necessary to determine the cause of the underlying condition. Then that cause is treated and, in combination with that treatment, there is again prescribed the correct dietary regimen for that individual. The treatment of obesity in order to obtain the best result is an individualized treatment. There is no one regimen which may be followed by the generality of mankind with hope of success.

The diet program prescribed by this Respondent is stated in two ways. At one place, the dieter is told of a situation in which a man by the name of Edgar Cayce prescribed a diet that consists of three-quarters of a glass of grape juice and one-quarter of a glass of plain water stirred together and taken about half an hour before meals, and before retiring. It should take the individual about five to ten minutes to drink the juice each time. The dieter is to continue to eat whatever he likes except potatoes and white bread, and these are to be eliminated from the diet.

At another place, the Respondent recommends the same diet except that the liquid to be consumed consists of one-third of a cup of water, and the balance of the glass is then to be filled with Welch's grape juice.

Dr. Cordaro said that there is absolutely nothing in this diet to lead one to believe that it could result in a weight loss for any individual. To begin with, the diet is not individualized, but it is to be taken by all persons of all ages and conditions, regardless of the cause of their being overweight.

Assuming that the average person eats not more than one potato per day and four or five slices of bread per day and further assuming that that person eliminates those items from his daily diet, he would thereby be eliminating 150 calories per day from his diet. Now, if this same individual follows the diet recommended by this Respondent, if he drinks the mixture which contains two-thirds of a cup of Welch's grape juice and one-third of a cup of water, he would be adding 464 calories per day to his diet. If he drinks the concoction that is composed of three-quarters of a cup of Welch's grape juice and the other quarter of a cup being water, he would be adding 512 calories per day to his diet.

On balance, therefore, by following the diet recommended by this Respondent, and assuming that the person normally would eat not more than one potato and four or five slices of bread, and assuming that the person eliminates those items from his diet, he would achieve a net gain in calories per day under the first assumption of 314 calories, and under the second assumption, he would achieve a net gain of 362 calories per day, so it just flies not only in the face of medical knowledge, but also in the face of common sense, to represent that the following of the diet procedures recommended by this Respondent would result in a loss of weight.

On the basis of the complete record in this case, I find that the Respondent does use the mails to conduct its business. The Respondent does make the representations set forth in the Complaint. Those representations are false, and they are materially false as a matter of fact.

It is 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, U.S. Code.

Accordingly, an order as provided by 39 U.S. Code 3005 should be issued against this Respondent.

In the answer that was filed by the Respondent, a number of objections to this proceeding were raised, and they are based on various provisions of the Constitution of the United States. The REspondent states that the statute as construed and applied in this case violates the rights guaranteed to the REspondent under the free speech and press, due process, equal protection, right to have compulsory process, and the right to jury trial provisions of the First, Fifth, Sixth and Seventh Amendments to the United States Constitution.

It is not the function of Administrative Law Judges to rule on the constitutionality of statutes under which these proceedings and similar proceedings are brought. However, I will comment simply by saying that these objections which are presented in this answer as affirmative defenses by the Respondent have been raised in many other cases over a long period of years, and these cases have terminated in the finding that this statute and its predecessor, and the proceedings brought under both of them, comply with all the requirements of the Constitution which Respondent adverts to in his answer, and in this connection, I refer to Public Clearing House v. Coyne , 194 U.S. 497 (1904); Donaldson v. Read Magazine , 333 U.S. 178 (1948); Lynch v. Blount , 330 F. Supp. 689 (1971), affirmed 404 U.S. 1007 (1971); United States Postal Service v. Beamish , 466 F.2d 804 (1972); United States v. Outpost Development Corporation, dba Lydia Feldman , Civil No. 73-16-FW, memorandum decision by the United States District Court for the Central District of California, dated August 7, 1973. That decision was affirmed by the Supreme Court of the United States. I do not have the citation in the United States Reports, but there is a reference to it in 43 U.S. LAW WEEK 3361.

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1/ Transcribed from oral decision as rendered at close of hearing held May 6, 1974. Minor language changes have been made, but the substance of the decision is unchanged.