In the Matter of the Complaint Against

ISO-TENSOR PLAN at
21100 Erwin Street,
Woodland Hills, California 91364 and/or

ISO-TENSOR at
21100 Erwin Street,
Woodland Hills, California 91364 and
2875 Bates Road,
Montreal, Quebec and/or

BETTY WEIDER'S, Dept.,
BEAUTY AND FIGURE AIDS at
P. O. Box 3725,
Beverly Hills, California 90212 and
2875 Bates Road,
Montreal, Quebec

P.S. Docket No. 3/30

William A. Duvall Chief Administrative Law Judge

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

Sheldon S. Lustigman, Esq.,
Bass and Ullman, 747 Third Avenue,
New York, New York, for Respondent

INITIAL DECISION

^1/ This proceeding originally involved charges set forth in a Complaint filed on April 9, 1974, by the General Counsel for the United States Postal Service (Complainant).

In the Complaint, as amended, it is charged that Iso-Tensor Plan, Iso-Tensor, Bustline Increaser and Body Persuasion System at 21100 Erwin Street, Woodland Hills, California; and Iso-Tensor and Betty Weider's Beauty and Figure Aids, 2875 Bates Road, Montreal, Quebec; Betty Weider's Dept.,^2/ Beauty and Figure Aids at Post Office Box 3725, Beverly Hills, California, hereinafter referred to collectively, except as modified, as the 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 of Title 39, United States Code.

The Respondent has opposed the issuance of an oral initial decision in this case and that opposition has been rejected for reasons stated when the ruling was made on the motion for the issuance of an oral initial decision. Also, opposition was predicated upon the additional allegation that a competitor of the Respondent's, namely, Mark Eden of San Francisco, California, is being permitted under the terms of an agreement, executed some years previously, to engage in a similar business on the basis of representations that are, if anything, in Respondent's view, more exaggerated than the representations employed by the Respondent.

That another business enterprise is conducting its business through the mails in a certain manner and in a certain field is no bar to the presentation of a case in regard to a particular business enterprise. The function of the administrative law judges is to hear the matters that come before them and if there is in existence a similar business, until a complaint is filed that is not a matter within the jurisdiction of the administrative law judges whose function is to hear and decide the matters before them. Therefore, the existence of the business conducted under the name of Mark Eden is not a bar to this proceeding.

At the time the motion for the initial decision was argued, the Complaint in this proceeding was dismissed as to the names "Bustline Increaser," and "Body Persuasion System," both located at 21100 Erwin Street, Woodland Hills, California.

In the Complaint, as amended, the Complainant charges the Respondent with making the following allegedly materially false representations in the course of conducting its business:

"(1) That the user of Respondents' product will experience an increase in her total bustline;

"(2) That the user of Respondents' product will experience an increase in her breast size;

"(3) That the user of Respondents' product will experience a detectable and measurable increase in her bustline after just 10 seconds use;

"(4) That the user of Respondents' product will experience firming and shaping of her total bustline;

"(5) That the user of Respondents' product will experience her breasts becoming fuller and shapelier;

"(6) That Respondents' product will recontour the user's breast and produce larger, more beautifully proportioned breasts;

"(7) That Respondents' product is the fastest bustline shaper and increaser ever devised;

"(8) That the user of Respondents' product can experience the represented increase in her bustline and/or breast size without the necessity of altering her caloric intake;

"(9) That Respondents' product will produce an increase in the user's bustline of 3-1/4 inches after just 21 days use;

"(10) That Respondents' product will be delivered to a purchaser within a reasonable period of time;

"(11) That Respondents' product is backed by a money- back, unconditional guarantee;

"(12) That the user of Respondents' product will achieve an increase in her bustline of 2 inches after just 14 days use;

"(13) That the Respondents' product is a revolutionary, new device;

"(14) That the user of Respondents' product will experience a detectable and measurable increase in her bustline in just 60 seconds use;

"(15) That the documented proof of results of improvements with the ISO-TENSOR PLAN displayed on Exhibit C were obtained under conditions identical or substantially similar to those to be followed by the purchaser;

"(16) That the subjects in the 'documented proof' of results shown in Exhibit C 'used the [ISO-TENSOR] program just once daily.'"

It should be noted that Complainant withdrew from consideration in this proceeding the charges that are set forth in allegations (7), (11), and (13) above. Without, in any way intending to be critical, it seems to this presiding officer that such drastic amendment in the names of the persons or businesses to be charged, and amendments in regard to the representations which the Respondent is charged with making, suggests something less than the desirable degree of care in drafting that should be brought to bear in preparing these complaints.

The charge which is number 14 quoted above was added to the Complaint over objection by the Respondent on July 11, 1974. At the hearing, the Complainant moved and was permitted, also over Respondent's objection, to include charges appearing above as numbers 15 and 16.

An answer was filed to the original Complaint, which answer is deemed to be applicable to the Complaint, as amended. In the answer, the Respondent (1) denied selling the product in question under all of the names set forth in the caption of the Complaint: and (2) denied the remainder of the allegations of the Complaint except that Respondent admits that Exhibits A and B to the Complaint (Appendices A and B to this decision) are true copies of advertising material used by Respondent in its business enterprise.

With the amendment to the Complaint which resulted in the addition of allegation numbered 14, Complainant attached an additional advertisement used by the Respondent which appeared in the August, 1974, issue of the publication "Modern Screen." This advertisement is attached hereto as Appendix C. It is also on this advertisement that allegations quoted above as numbered (15) and (16) are predicated. Appendix D to this decision is a copy of sales literature received with the product ordered and received from Respondent.

The amendments to the Complaint were permitted at the hearing because, first, since the language on which the charges are based appears in Respondent's advertising material, Respondent is not taken by surprise in regard to the text of this language, especially since the method of obtaining the "documented proof" which is mentioned in Appendix C of this decision, has been submitted to the Respondent in the form of a "Confidential Report" which was received in evidence as Respondent's Exhibit R-1.

Another reason for permitting the amendment of the Complaint to include charges 15 and 16 is that the purpose of the statute under which this case is brought is to protect the public, and the permitting of the addition of charges 15 and 16 will, if the validity of the charges is established, provide the means of better serving and accomplishing the purpose of the statute.

The matter came on for hearing before the undersigned Administrative Law Judge on August 5, 6, and 7, 1974, at a hearing held, at Respondent's request, in Lost Angeles, California. Counsel for both parties participated in the examination and cross- examination of the witnesses, and both counsel were afforded a reasonable opportunity to submit proposed findings of fact and conclusions of law and supporting reasons for the proposed findings and conclusions.

The program or product sold by Respondent is the so-called Iso-Tensor system, bustline increaser course. It is also known in various places in the Respondent's advertising material by other names but this is the complete name that appears variously in the Respondent's advertising material. This program involves (1) the use of the device called the Iso-Tensor; (2) the taking of certain exercises; (3) the gaining or losing of weight as indicated by one's body weight. The exercises and the directions for taking them, together with advice about the use of the device are set forth in Complainant's Exhibit C-8.

The "exercise tips" in this exhibit read as follows:

"1. ARM CIRCLING -- Stand tall with arms overhead, hands together, elbows straight -- as shown. Begin to describe enormous circles ... from very far back, to very sideward, to well in front of the body. Breathe deeply as you make the circles. Promotes good posture and enhances your bust measurement by preventing slouching, slumping or hunching of your shoulders.

"2. BUST CRUSH -- Hold ISO-TENSOR at shoulder level -- as shown. Keep elbows out to sides away from body for maximum resistance. If too difficult bring elbows closer to body (easier to do). Breathe deep and force handles together. Works the upper chest muscles and those near the shoulders for fuller development.

"3. SIDE CRUSH -- Hold ISO-TENSOR at side -- as shown. Breathe deeply and crush handles together. Then let ISO-TENSOR slide back to starting position, resisting it all the way.

"4. LOW CRUSH -- Hold ISO-TENSOR at hip level as shown, keeping elbows away from body. Take a deep breath and crush handles together. Exhale and return to starting position.

"5. THE LATERAL RAISE -- Lie on your back on a low bench, head at one end, knees at the other as shown. Hold a light book in each and stretch arms overhead. With elbows locked throughout the movement, lower your arms while stretching your chest muscles until your fingers touch the floor. Immediately bring your hands and books back to starting position, and repeat.

"6. THE PULLOVER STRETCH -- Assume the same position as in exercise #5 and again holding the books, elbows locked. But this time you lower the arms behind the head until the books touch the floor. Stretch the chest and shoulders and inhale deeply as you lower your arms. Exhale as you bring them back to starting position. Promotes a beautiful upper curve to your bosom, while helping effectively to uplift the breasts.

"7. OVERHEAD CRUSH -- Bring ISO-TENSOR to overhead position shown, arms and back straight. Breathe in deeply and crush handles together. Exhale and return to starting position. Excellent for putting lovely contours in the shoulders and upper chest.

"8. BACK CRUSH -- Hold ISO-TENSOR behind you as shown. Inhale deeply and force both handles inward as much as possible. Exhale and return to starting position. Don't worry if you can't push them together all the way...In this case, even a 'little bit' will go a long way. A wonderful exercise for strengthening your back muscles -- especially the ones that help improve your posture.

"9. HIGH BUST CRUSH -- This is similar to Exercise #2. The difference is that you hold the ISO-TENSOR at neck level so that the upper area of the chest muscles are worked. Inhale, force the handles together, hold for a few seconds and return to starting position, exhaling as you do.

"10. FLOOR DIPS -- Get into position shown in Photo A. Keep back and arms straight. Inhale and bend your elbows until your bust touches floor. Exhale and push back to starting position. Develops fullness in your chest muscles, helping add fullness to your bustline."

There are three broad issues to be resolved in this proceeding, namely:

(1) Does the Respondent use the mails in the conduct of its business?

(2) Does the Respondent make the representations which the Complainant attributes to it and sets forth as charges in the Complaint?

(3) Are the representations, if made by the Respondent, materially false as matters of fact? Initially, it must be pointed out that Respondent solicits remittances under the names which now remain in the Complaint.

Does the Respondent Use the Mails
in the Conduct of its Business

That the Respondent, under the names remaining in the Complaint, does use the mails in the conduct of its business is established by Complainant's exhibits received into the record by stipulation at the opening of the hearing. These exhibits (C-1 through C-11) consist of samples of Respondent's advertisements, complete with order blanks and correspondent giving the history of the test purchase of this device. Does the Respondent Make the Representations Which the Complainant Attributes to it and sets Forth as

Charges in the Complaint

There next must be determined whether the Respondent, in its advertising literature, makes the representations that are expressed in the charges of the Complaint.

Certain guidelines have been established which assist one in making this determination. In Donaldson v. Read Magazine , 333 U.S. 178, 189, the Court stated that advertisements should be considered as a whole and that they should be interpreted "in the light of the effect [they] would most probably produce on ordinary minds."

In Gottlieb v. Schaffer , 141 F. Supp. 7, at page 16 (S.D.N.Y. 1956), the Court, after referring to the above-quoted language in Read , concluded that the Postal statute was intended to protect "the gullible and the simple ... even though they do not reach the level of the 'ordinary ming'." The Court further stated:

"The purpose of the [Postal] statute is to protect the unwary and unsuspecting, as well as the knowledgeable or worldly-wise--those who are 'trusting as well as the suspicious.' The public includes 'that vast multitude *** the ignorant, the unthinking and the credulous.' The fact that informed and sophisticated persons would laugh off, or even be amused by, obviously false and absurd statements in an advertisement does not detract from their power to deceive the ignorant, gullible and less experienced." (Footnotes omitted.)

At this time, attention must be directed to the contents of Respondent's advertising literature. Rather than impose upon the time of the reader of this decision by quoting specific language in relation to each charge, keeping in mind the photographic material appearing in Respondent's advertising material; keeping in mind also the use of large print as an eye-catching device in Respondent's advertisement; and keeping in mind the language itself of Respondent's advertisements, it is found as a fact, applying the criteria established in the cases from which excerpts are quoted above, that the Respondent does make the representations which now remain in the Complaint. That remittances through the mail are sought under the name of Betty Weider's Dept., Beauty and Figure Aids, Post Office Box 3725, Beverly Hills, California, is established by Exhibit C-9, which is attached hereto as Appendix D. The language used by Respondent to describe the "beauty Bustline Persuader", is found in the central portions of the righthand column of that Appendix. It is noted that in this exhibit the Respondent "assures a fuller, deeper, and higher bustline in just five minutes a day]"

In addition to appearing as Appendices A, B, C, and D to this decision, Respondent's advertisements are hereby incorporated by reference at this point in this decision in support of the finding that the Respondent does make the representations now remaining in the Complaint. Are the Representations, if Made by the

Respondent, Materially False as Matters of Fact

There remains the question of whether the representations heretofore found to have been made by the Respondent are either true or materially false as to matters of fact.

MEDICAL TESTIMONY

Each party presented medical expert testimony by a witness who, by virtue of his education, training and experience, possesses a very high degree of professional qualifications, and the testimony of each of them has provided insight and guidance with respect to this case.

Doctor Robert L. Swezey was called by Complainant and Doctor Pritiof S. Sjostrand appeared on behalf of Respondent.

While the testimony of the two experts differed in some respects, there was agreement on most major questions. The anatomy and physiology of the upper portions of the female torso was one of such points of agreement.

In resolving the issue of the truth or falsity of the alleged representations, certain of the representations concerning which the record is clear will be diposed of first, and, for the guidance of counsel, I will state now that I have not followed the numerical sequence of these allegations that remain in the Complaint but I have grouped them in a manner which to me seems to be logical, based upon their content.

As a preliminary matter, it is found as a fact that to a large segment of the audience at which Respondent's advertisements are directed, and term "bustline" as it is used by Respondent, connotes, primarily, the area of the female breast. This finding is predicated on the fact that in each and every advertisement of record in this proceeding, the photographic matter is so presented and the subjects photographed are so posed as to emphasize their breasts. In addition, the language employed by Respondent similarly is suggestive of the female breasts. A few of the numerous possible illustrations of this last statement are cited as follows:

(1) In Appendix A - "In One Second, every muscle in your bustline comes alive with activity] Activity that instantly starts firming, and shaping your total bustline; making it fuller, shapelier - recontouring it to lovelier and more beautiful proportions.***"

(2) In Appendix B - "In one second you see your bustline come vibrantly alive...with deep muscle motion that starts its firming, shaping, toning work at once...re-contouring your bosom line to lovelier, fuller, more alluring proportions.***"

(3) In Appendix C - "It's [meaning Respondent's plan] simple, inexpensive, and it works with amazing effectiveness. Which is why so many thousands of women now use it--even those who already have an attractive, alluring bustline--to help prevent that aging sag to their breasts and keep their bustline firm and youthful looking."

(4) Language from Appendix D has heretofore been quoted. It is incompatible with logic, reason and common sense to say that the average person would interpret the foregoing language to mean that the following of the Respondent's program would result in the enlargement of, among other things, the latissimus dorsi, the rhomboid, and the pectoral muscles, but that the female breast would not be affected.

Moving now to the specific charges, both expert witnesses agreed that the use of Respondent's product, as directed, will have no effect on the size of the female breast. Dr. Sjostrand testified that no permanent effect -- even on the entire circumference of the upper torso at the nipple line -- would be produced by a ten second or 60 second use of the Iso-Tensor device and plan. Dr. Swezey's testimony was in complete agreement with this statement. Since what the purchasers obviously desire and believe Respondent is offering, is a permanent increase in bustline or breast size, the representations set forth in charges numbers 3 and 4 are materially false.

The falsity of charges 15 and 16, is established by the testimony of Respondent's witness, Douglas MacLenon, technical director of the Fitness Institute, by which organization the tests reported on in Exhibit R-1 were conducted. Mr. MacLenon testified that the young ladies who participated in that study were told to begin immediately with the 36 "crushes" or compresses of the Iso- Tensor device and to perform the exercises twice a day in accordance with the printed instructions. In Appendix C, there is the plain statement that participants in the test "used the program just once daily," which would lead one to believe that the program could be carried out and accomplished, with only half of the exercises which the plan, itself, calls for. Actual purchasers of the Iso-Tensor plan are told to begin with few repetitions and gradually build up to the stated desired maximum. Hence, the conditions for use by the purchasers are substantially different than the conditions under which the study was conducted involving the participants listed on Appendix C.

I agree with Respondent's Counsel when he said in his argument that the purchaser does not care about the methodology followed in this program but the purchaser cares only about the results achieved. The fact of the matter is, however, that the medical testimony in this case indicates that frequent repetition is an important factor in the achievement of increased muscle mass, so that if the purchaser exercises with considerably less frequency than did the persons employed in the study which is R-1, then the likelihood of their accomplishing their desired objective within the 14-day period promised by Respondent is considerably lessened.

The allegation of the falsity of the representations set forth as charge 10 in regard to prompt delivery must fail for want of proof. It is true that about 32 or 33 days elapsed between the mailing of the order and the delivery of the device to the investigating inspector, but in view of the number of hands through which this transaction passed, there is no clear and convincing, or preponderant proof of undue delay on the part of the Respondent in effecting delivery of the product.

The falsity of the allegations in regard to the effect on the breast of following Respondent's plan, as set forth in charges (2), (3), (6) and (8), is established by the unanimous expert testimony, previously referred to, that the use of Respondent's device as directed, will have no effect on the size of the breasts of the user.

The statement in charge number 1, that the user of Respondent's product will experience an increase in her total bustline is true, giving Respondent the benefit of a strained definition of "bustline." The testimony of the medical experts is that extended use of the Iso-Tensor device as directed will enlarge the muscles of the upper torso, with the result that the circumference of the trunk at the nipple line will be increased. Dr. Sjostrand's testimony was to the effect that the greatest part of the increase would occur in the latissimus dorsi muscles and would be made apparent at the sides of the individual using the device.

On the other hand, Respondent's promise, set forth in the Complaint as charge number (4), that the user of its product will experience a firming and shaping of the total bustline is false, because the total bustline, by Respondent's definition - the circumference of the torso at the nipple level - includes the breasts, the firming of which will not be effected by the use of Respondent's device, according to the testimony of both Dr. Swezey and Dr. Sjostrand.

In regard to the matters alleged in charges (9) and (12), being respectively, the promised increase of three and one-quarter inches in 21 days and two inches in 14 days, the testimony of the experts leads to the conclusion that these promises are false. The photographs on Appendix A and the language underneath them clearly imply that the increase in bustline of three and one-quarter inches in 21 days is a typical, and not an unusual, occurrence. On Appendix C, there is the following statement: "Remember, we guarantee it will add 2 to 4 inches to your bustline in just 15 days." Respondent's Counsel asserts that the appearance of this broad guarantee is the result of some typographical, or other, error in the preparation of the advertising material. However, it is noted that no statement was made in regard to any steps that might have been taken to correct the impression created by the alleged typographical mistake. In connection with charges (9), (12), Dr. Sjostrand, the Respondent's medical expert, stated that a gain of 2 inches in 3 weeks is possible but that a gain of three and one-quarter inches in that period of time is unlikely. Accordingly, the representations which are set forth in charges (9) and (12) of the Complaint are false.

THE SURVEY

Respondent retained the Barbara Weiss and Associates Marketing Agency to conduct a sort of poll to determine how members of the public (all females) would interpret certain words in Respondent's advertising material. The crucial words were "bustline," "chestline," and other words and phrases used by Respondent.

Mrs. Weiss was the spokesman for Respondent, in interpreting the results of the poll. Overall, out of 405 persons interviewed, about 88 percent placed on the key words the interpretations which Respondent insists are correct. What is to be the fate of the 12 percent whose interpretation differed has not been made clear. Incidentally, without the stimulation of Respondent's advertising language, nearly 93 percent of the subjects interviewed interpreted the word "bustline" as Respondent says it uses that word; but with the stimulus of the language of the Respondent's advertising material before them, the hoped-for interpretation of the word "bustline" was arrived at by 4 percent less of the people interviewed.

The survey was conducted partly in Santa Monica and partly at the Valley Plaza, where Mrs. Weiss has her office but she did not know how many interviews were conducted in each place. Equally, if not more, important Mrs. Weiss recognized that there are demographic differences between the populations of the two areas, but she did not know the kind and degree of such differences.

In sum, the reliability of the study was not firmly established and there is nothing in the report of the survey, or the testimony about it, that would justify a change in the interpretation of Respondent's advertising language from that interpretation previously expressed and adopted in this decision.

THE STUDY

The Respondent retained the services of the Fitness Institute, located in or near Ontario, Canada, to conduct a study of its product. A representative of that Institute appeared as a witness to relate matters concerning the test.

It was intended to have ten subjects take part in the test but for various reasons, the number dwindled to 6 (7 sets of initials are listed on pages 8 and 9 of the report of this test, Exhibit R-1) but it is stated on page 5 that the results for "Miss G.W."***"probably should be discounted."

Unfortunately, a good many other features of the study and the report of it must also be discounted. For example, on page 5 of the report, it is stated that:

"***The difference between the chest measurement and the bust measurement is usually used as an indication of relative breast fullness and the fact that all the subjects increased this difference to some extent can be considered an indication that all the subjects increase their breast fullness or development."

This statement simply cannot be permitted to stand in the face of the clear indications by the medical expert for each party that nothing in Respondent's program will cause fullness or development of the breast.

Another matter worthy of note was that the subjects were told that the purpose of the study was to see what improvement might be gained in bustline development from following the program. The possibility of lack of improvement apparently was not suggested and Dr. Sjostrand was of the view that the knowledge of the purpose of the test in those terms could create a subconscious bias that could affect the reliability of the reported results. It is true that, later, on redirect examination, Mr. MacLenon attempted to change his testimony to indicate that the subjects were told that the purpose of the test was to note what effect, if any, the use of the device would have. His original testimony, however, was more spontaneous and, because of his manner and demeanor at the time of his earlier testimony, that earlier testimony is accepted as the more credible version of the information actually given to the subjects of the study.

A tape marked in gradations of tenths of an inch was used to measure the subjects and it was generally agreed that the use of an unmarked measuring device would have been greatly preferable.

Mr. MacLenon, himself, listed among others, the following ways in which the test conducted by the Fitness Institute could have been improved:

(1) By keeping the knowledge of the purpose of the test from the subjects of the study and from the other participants, such as the technicians who performed the measuring,

(2) By having a larger sample of persons participating in the study as subjects,

(3) By controlling the caloric intake of the subjects,

(4) By having a control group for the purpose of comparison.

All in all, the test and the report of it were not persuasive, either as to the methodology or as to the results reported.

THE USERS

Respondent presented three young ladies as witnesses to tell of their experiences with the use, as directed, of Respondent's device.

Miss Colleen Cohn said that over the 2-wee period of her use of the device, she achieved a two-inch increase in the circumference of her torso measured at the nipple line. The person who measured Mrs. Cohn was Mr. Joseph Weider, the president of the corporate entity of which the Respondents are a part. It scarcely could be declared that Mr. Weider was free of at least a subconscious interest in the result of the measurements. Mrs. Cohn said she experienced no discernible or measurable increase after the first day on the program, which certainly extended longer than ten or sixty seconds.

Mrs. Ida Forbes said she also experienced a two-inch increase in circumference when measured around her body at the nipple line. Mr. Weider also performed these before and after measurements. Mrs. Forbes said that her breasts feel fuller and that she has been told that her breasts look bigger, since she followed Respondent's program for two weeks. In this connection, reference is made to the expert medical testimony on this phase of the matter.

Miss Karen Christopher was the last of the users of the product to testify. She said that her circumference at the nipple line, measured by Mr. Weider, increased in two weeks by one and five-eighths inches. She said she noticed that her breasts were firmer after completing the program, than they had been before starting on the program. When asked whether the opinion of two medical experts -- that the Respondent's program would have no effect on the firmness of the breast of the user -- would have any effect on her opinions or cause her to change her belief about the increased firmness of her breasts, she replied with conviction in the negative.

The testimony of the three young ladies illustrates the dangers inherent in placing reliance on lay testimony in matters requiring medical, scientific, or other professional expertise.

CONCLUSIONS

Findings have been made in respect to every charge in the Complaint and reasons have been stated for the findings. Except where otherwise stated, when a finding of falsity has been made concerning a charge in the Complaint, that finding is to be construed as meaning that the false statement is materially false, as a matter of fact.

I wish to compliment Counsel for both parties upon the quality of the proposed findings of fact, conclusion of law, and supporting arguments, submitted orally by them this morning. I have heard and considered these proposed findings of fact and conclusions of law, together with their supporting reasons. To the extent herein indicated, such proposed findings and conclusions are adopted. Otherwise, such proposed findings and conclusions are denied because they are contrary to, or unsupported by, the evidence, or because of their immateriality.

In view of the findings heretofore made, 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 within the meaning of Section 3005 of Title 39, United States Code.

Accordingly, an order in the form attached, as provided by 39 United States Code, Section 3005, should issue against this Respondent.

1/ Transcribed from oral decision as rendered at close of hearing held August 5, 6, 7, 1974. Minor language changes have been made, but the substance of the decision is unchanged.

2/ The abbreviation "Dept." appearing in the name "Betty Weider's Dept. Beauty and Figure Aids, P. O. Box 3725, Beverly Hills, CA 90212" was omitted from the caption of the Complaint. Because (1) this omission is the result of an obvious oversight; (2) in order to conform the pleadings to the proof; and (3) since Respondent is not prejudiced thereby; the abbreviation "Dept." has been inserted.