October 29, 1975
In the Matter of the Complaint Against
JOE WEIDER, d/b/a JOE WEIDER,
25 Maple Street, 55 Maple Street at
Norwood, New Jersey 07648,
d/b/a JOE WEIDER, CRASH-WEIGHT PLAN
801 Palisade Avenue at
Union City, New Jersey 07087
d/b/a WEIDER BARBELL COMPANY,
1220 - 5th Street at
Santa Monica, California 90401
P.S. Docket No. 2/81
October 29, 1975
William A. Duvall Chief Administrative Law Judge
Sheldon S. Lustigman, Esq.,
Bass & Ullman,
342 Madison Avenue,
New York, New York, for Respondent
James J. Robertson, Esq.,
United States Postal Service,
Washington, D. C., for Complainant
This proceeding was instituted when the General Counsel for the United States Postal Service (Complainant) charged in a Complaint that a scheme for obtaining money or property through the mail by means of false representation was being conducted under the names shown in the style of this case.
Two Answers to the Complaint were filed, respectively, as follows: one, on behalf of Joe Weider d/b/a Joe Weider, Crash-Weight Plan, 801 Palisade Avenue, Union City, New Jersey and Weider Barbell Company, Inc., 1220 - 5th Street, Santa Monica, California; and the other, on behalf of Weider Distributors, Inc., named in the Complaint as Joe Weider, 25 Maple Street, Norwood, New Jersey, and Joe Weider, Crash Weight Department, 531 - 32nd Street, Union City, New Jersey. The name and address Joe Weider, 55 Maple Street, Norwood, New Jersey, were, without objection, added to the Complaint at the hearing.
Both parties were represented at the hearing by counsel who participated in the examination and cross-examination of the witnesses, and who have filed proposed findings of fact, conclusions of law and supporting reasons.
The initial step in this decision is to set forth the basis by which the identity of the Respondent or Respondents was established. This step is complicated by reason of the multiplicity of names used and products sold in the operation of the business. No finding on this point is made, but if one would wish to cover his tracks and to render positive identification difficult, one method frequently attempted is to assume many personal or corporate names, diverse locations and variety of wares. The best way to begin to resolve the identity question is by reference to the affidavits of the postal inspectors who investigated this matter. These affidavits were, without objection, received in evidence after the hearing. Each different name and address used by Respondent is underscored when it first appears.
In response to an advertisement (Ex. C-1), Postal Inspector Michael W. Ryan, on December 19, 1972, ordered a 7-day supply of Crash Weight Formula #7 from Joe Weider, Norwood, New Jersey 07648 .
On or about January 20, 1973, this investigation was reassigned to Postal Inspector Robert C. Williams, Jr.
On March 12, 1973, Inspector Williams received the merchandise ordered by Inspector Ryan. The carton containing the shipment bore the return address of "Weider Distributors, Inc., 25 Maple Stree t , Norwood, New Jersey 07648 ." Enclosed with the ordered merchandise, and other material, was a printed sheet containing, insofar as is here pertinent, the rules of a weight-gaining contest which the customer was urged to enter, with instructions to return the printed sheet to Joe Weider Crash Weight Dept., 531-32nd Street, Union City, N.J. 07087 . (Ex. C-5) On the labels of the product it is indicated that each can yields 1500 calories when the contents are mixed with a quart of whole milk.
Because certain tablets represented as being capable of increasing the appetite had been promised to the customer, but not delivered with the order, Inspector Williams wrote to Weider on March 26, 1973, about this omission. On April 9, 1973, the Inspector received, under his test name, a bottle of tablets in a heavy mailing envelope bearing the return address of "Weider Distributors, Inc., 25 Maple Street, Norwood, New Jersey 07648." It is stated on the label of the bottle of tablets that they are distributed by Weider Food Supplements Inc., Woodland Hills, California 91364 . (Ex. C-8)
Responding to an advertisement appearing in the February 1972 issue of a publication called Muscle Builder - Power Magazine, the Inspector, on May 24, 1973, ordered a 14-day supply of the product from Weider Barbell Company, 1220 Fifth Street (Muscle Beach), Santa Monica, CA 90401 . In this same advertisement the order blank shows, as an address from which the product may be ordered, Joe Weider Crash-Weight Plan, 801 Palisade Avenue, Union CIty, N.J. 07087 .
In response to this order, there was received on July 16, 1973, a carton containing 12 cans of Joe Weider's Crash Weight Gain Formula #7 which, according to the labels, is distributed by Weider Food Supplements Inc., 21100 Erwin Street, Woodland Hills, California 91364 . It is also stated on the label that the product contains 900 calories in its dry state, and 1800 calories when it is mixed with 1 1/2 quarts of whole milk. There was also received in this shipment a one-page circular, bearing the caption "MUSCLE UP]" containing advertisements for a number of products, including Crash Weight-Gain Formula #7, being offered for sale by Joe Weider, 21100 Erwin Street, Woodland Hills, Calif. 91364 .
On May 22, 1973, the Postal Inspector ordered a 14-day supply of the product from Weider Barbell Co., 1220 Fifth Street (Muscle Beach), Santa Monica, CA 90401. On August 3, 1973, the Inspector received a carton bearing the return address of Weider Sporting Goods, 21100 Erwin Street, Woodland Hills, CA 91364 . The Postal Service C.O.D. form related to this parcel bore the return address of Weider Barbell Co., Inc., 21100 Erwin Street, Woodland Hills, CA 91364 . The label on this product indicated (1) that it had the same ingredients as the 900 calorie (dry) product which, when mixed with 1 1/2 quarts of whole milk, yields 1800 calories and (2) that it is distributed by Weider Food Supplements, Inc., 21100 Erwin Street, Woodland Hills, CA 91364. Accompanying this order, also, was the "MUSCLE UP]" advertisement, mentioned earlier, soliciting remittances for various products, including Crash Weight Gain Formula #7, to Joe Weider, 21100 Erwin Street, Woodland Hills, Calif. 91364.
Finally, as previously indicated, based on a later discovered advertisement, the caption was, without objection, amended at the hearing to include 55 Maple Street, Norwood, New Jersey 07648 as a new address for Joe Weider.
Out of this welter of data it is found that, for purposes of this proceeding, Respondent is engaged in the sale of the products Crash Weight Formula #7 and Crash-Weight Gain Formula No. 7, or some variation of these designations, under the following names and addresses:
(a) Joe Weider
25 Maple Street
Norwood, New Jersey 07648
Weider Barbell Co.
1220 5th St.
Santa Monica, Calif. 90401
Joe Weider Crash Weight Department
Union City, N.J. 07087
Joe Weider Crash-Weight Plan
801 Palisade Avenue
Union City, New Jersey 07087
55 Maple Street
Norwood, N.J. 07648
(b) The dealings of Inspector Williams with Respondent, as revealed by his thoroughly documented affidavit, provide ample justification for the addition as Respondents of the following names and addresses:
Weider Distributors, Inc.
25 Maple Street
Norwood, New Jersey 07648
Weider Food Supplements, Inc.
Weider Sporting Goods
Weider Barbell Co., Inc., and
21100 Erwin Street
Woodland Hills, California 91364
Subsection (a) of 139 U. S. Code 3005 sets forth the authority of the Postmaster General to issue a mail-stop order under certain circumstances. Subsection (b) of that section, in pertinent part, reads as follows:
"(b) The public advertisement by a person engaged in activities covered by subsection (a) of this section, that remittances may be made by mail to a person named in the advertisement, is prima facie evidence that the latter is the agent or representa- tive of the advertiser for the receipt of remittances on behalf of the advertiser.***"
The foregoing language, together with the evidence received at the hearing, including the post-hearing affidavits submitted by both parties, provide authority for inclusion of all of the names and addresses stated above by which the products under consideration in this proceeding are being advertised and sold through the mails.1/
THE REPRESENTATIONS ALLEGED TO BE FALSE
In the Complaint it is alleged that the Respondent makes the following representations which, in turn, are alleged to be materially false:
(1) That use of Respondent's product, as recommended, will lead to a fourteen pound weight gain in fourteen days; <
(2) That use of Respondent's product, as recommended, will lead to a fast, healthy weight gain;
(3) That use of Respondent's product adds muscle and strength to the entire body;
(4) That use of Respondent's product will add muscle and strength without the necessity of engaging in exercise programs;
(5) That Respondent's product is a unique and special formula;
(6) That the user of Respondent's product simply drinks his way to good health;
(7) That persons who respond to Respondent's advertisement will also receive in addition to Crash Weight Formula #7, appetite stimulating tablets;
(8) That a purchaser of Respondent's product will receive a 48-page illustrated guide referred to by Respondent as a "Weight-Gaining Course";
(9) That a purchaser of Respondent's product who orders promptly will receive as a "SUPER BONUS", a 15 course body-building book and three issues of a "Body-Building Newsletter" absolutely free with each order;
(10) That use of Respondent's product will allow an individual to gain weight in specific areas or that use of Respondent's product will allow an individual to control the distribution of newly gained weight;
(11) That Respondent's product is a new, scientific- ally blended, milk shake flavored drink;
(12) That Respondent's product is available in six flavors: Chocolate, Vanilla, Strawberry, Banana, Cherry and Butterscotch.
THE USE OF THE MAIL
In the Answers to the Complaints, and at the hearing, the Respondent admitted the use of advertisements to solicit remittances of money through the mail for its product, called Crash Weight Formula #7 or Crash Weight-Gain Formula No. 7 or some variation thereof (hereinafter called the product or Formula #7, except as otherwise indicated). Various free bonus items are promised to purchasers, but the item advertised and sold is the Formula #7. These advertisements were received in evidence as Complainant's Exhibits C-1, C-2 and C-3.
DOES RESPONDENT MAKE THE ALLEGED REPRESENTATIONS
In order to determine whether the Respondent makes the representations charged by Complainant as being false, resort must be had to the Respondent's advertisements, previously identified.
With respect to the charge that Respondent represents that use of the product will lead to a 14 pound weight gain in 14 days, Exhibits C-1 and C-3 appended to the Complaint, state, respectively:
"GAIN HEALTHY WEIGHT FAST] Up to 14 pounds in 14 days with CRASH WEIGHT FORMULA #7 *** Even if you have tried and found it difficult to gain weight.
we guarantee that you can add as much as 14 POUNDS in the next 14 days by enjoying this delicious nutritional drink]***" (Ex. C-1)
* * * * * *
"DRINK ON AS MUCH AS 14 POUNDS IN 14 DAYS." (Ex. C-3)
Concerning the allegation that Respondent represents that use of the product will lead to a fast, healthy weight gain, Exhibits C-1 and C-3 contain, respectively, the following statements:
"GAIN HEALTHY WEIGHT FAST] *** DRINK your way to good healthy weight]"
* * * * * *
"[P]ile on a 'pound-a-day'"
Concerning Respondent's alleged representation that use of the product adds muscle and strength to the entire body, it is stated in Exhibit C-1 that:
"It adds Muscle and Strength to your entire body". In Exhibit C-3, there is language in which it is stated that the new drink will "put an end to your muscle-starved, hungry-looking body ***" and that it will help "build muscles, power and energy."
With respect to the charge that Respondent represents that use of the product will add muscle and strength without the necessity of engaging in exercise programs, Respondent states in Exhibit C-1 that:
"This unique and special formula does the trick FAST]
No boring exercises to do***;" and in Exhibit C-3 that Formula #7--
"is made for athletes or for those who want to look like one."
As for the charge that Respondent represents the product is a unique and special formula, it is stated in Exhibit C-1 that Formula #7 is:
"A totally NEW DRINK Guaranteed to Shape-Up Your Skinny Body] *** Delicious nutritional drink *** This unique and special formula does the trick FAST]"
In Exhibit C-3, there is the following statement:
"Here's a totally new breed of nutritional 'wildcat' that's guaranteed to put an end to your muscle-starved, hungry-looking body- through a new, scientifically-blended, milkshake-flavored drink] *** NEW IMPROVED FORMULA***".
With respect to the charge that Respondent represents that users of this product simply drink their way to healthy weight, it is stated in Exhibit C-1:
"A totally NEW DRINK Guaranteed to Shape Up Your Skinny Body] *** Simply DRINK your way to good, healthy weight]***"
In Exhibit C-3 it is stated:
"You 'drink on' weight secretly - discreetly - IT STAYS ON]"
The basis for the charge that Respondent represents that persons who respond to its advertisement will also receive appetite stimulating tablets in addition to Crash Weight Formula #7 is found in language in Exhibit C-1 wherein it is stated:
"To add up to 14 pounds in 14 days YOU NEED *** 14 day supply of Appetite-Stimulating Tablets..."
Concerning the charge that Respondent represents that a purchaser of the product will receive a 48 page illustrated guide referred to by Respondent as a "Weight-Gaining Course", Exhibits C-1 and C-3, respectively, contain the following language:
"PLUS FREE] Weight-Gaining Course. A 48 Page illustrated guide packed with step-by-step instructions in weight-gaining methods."
* * * * * * *
"FREE Weight-Gaining and Muscle-building Course. This 48 Page illustrated guide sent FREE with each CRASH WEIGHT FORMULA #7 Kit.***"
With respect to the charge that Respondent represents that a purchaser of the product who orders promptly will receive as a "SUPER BONUS" a 15 course body building book and three issues of a "Body-Building Newsletter" absolutely free with each order, it is stated in Exhibit C-1, as follows:
"With Your Order of Any of our Famous Body-Power PRODUCTS...You receive a SUPER BONUS of our world famous 15 COURSE BODY-BUILDING BOOK and 3 ISSUES of our exciting 'BODY BUILDING NEWSLETTER' packed with photographs***".
Concerning the charge that Respondent represents that use of the product will allow an individual to gain weight in specific areas, or that use of Respondent's product will allow an individual to control the distribution of newly gained weight, it is stated in Exhibits C-1 and C-3, respectively:
"A totally NEW DRINK Guaranteed to Shape Up Your Skinny Body] *** It adds Muscle and Strength to your entire body..."
* * * * * *
Formula #7 is "made for athletes or for those who want to look like one."
Concerning the charge that Respondent represents the product as a new, scientifically-blended, milkshake-flavored drink, the product is described in Exhibit C-1 as:
"A Totally NEW DRINK Guaranteed to Shape-Up Your Skinny Body] *** Delicious nutritional drink***.
It is stated in Exhibit C-3 that the product is--
"a new, scientifically-blended, milkshake-flavored drink] *** It's a high calorie, concentrated drink..."
Finally, with respect to the charge that Respondent represents that the product is available in six flavors, the following language appears in Exhibit C-3:
"NEW] IMPROVED FORMULA. Six Different deep, creamy, hearty, delicious flavors: Chocolate, Vanilla, Straw- berry, Banana, Cherry & Butterscotch]"
In Soberin Aids v. U.S. Postal Service , 371 F. Supp. 1373, (D.C., S.D.N.Y., 1974) Judge Weinfeld quoted the following language from an earlier case on the point as to whether certain representations were made:
"It is not each separate word or a clause here and there of an advertisement which determines its force, but the totality of its contents and the impression of the entire advertisement upon the general populace. ... The ultimate impression upon the reader results not only from the total of what is stated but also from what is reasonably implied..." (Citing Vibra Brush Corp. v. Schaffer , 152 F. Supp. 461, 465 (U.S.D.C., S.D.N.Y. 1957), order vacated on other grounds, 256 F.2d 681 (2d Cir. 1958)).
With respect to many, if not most, of the alleged representations, the charges are simply restatements of the language of Respondent's advertisements. Concerning the remainder of the charged representations, the charges express "the effect [the] advertisements would most probably produce on ordinary minds." Donaldson v. Read Magazine , 333 U.S. 178, 189 (1947). Respondent makes the representations set forth in the Complaint.
Paraphrasing the Complaint, the Respondent is charged with representing in its advertising material that it is offering for sale a newly-discovered, good-tasting, specially-formulated drink which, when taken in addition to regular meals, will enable any person to gain in 14 days as much as 14 pounds of weight that will be represented by muscle tissue that is well distributed throughout the body, and which will produce added physical strength. As an added inducement to purchase, the prospective customer is promised certain publications which relate to the subject of "body-building," and, in some cases, a supply of "Appetite-Stimulating Tablets."
THE TESTIMONY OF THE WITNESSES
Although this decision thus far has been largely written as if there were only one product being offered for sale, there are, in fact two products involved in this proceeding: one, a can of Joe Weider's Crash Weight Formula #7, which when mixed with one quart of whole milk yields 1500 calories (Ex. C-4); and, two, a can of Joe Weider's Crash Weight-Gain Formula #7, which when combined with one and one-half quarts of whole mile yields 1800 calories (Ex. R-2).
Each product, before the addition of milk, contains 900 calories. There is a dispute as to which Respondent sells which product, but, as previously has been stated, all the names mentioned earlier herein are used in the operation of a business the core of which is the advertising and selling through the mail of a product which it is claimed will produce a 14 pound weight gain in 14 days. It also has been shown that the products sold have the same caloric value, which differs only with the quantity of whole milk, or other ingredients, with which it is mixed. Under these circumstances the association of a particular product with a particular Respondent is not necessary to a decision in this case.
Dr. Leo Lutwak, M.D. was the first witness to be called by the Complainant. Dr. Lutwak is Professor of Medicine, University of California Medical School, Los Angeles, California, and Chief of the Section of Endocrinology, Nutrition and Metabolism, Veterans Administration Hospital, Sepulveda, California. His lengthy curriculum vitae (Ex. C-7) discloses education, professional experience, academic appointments, board certifications (MEdical Examiners and Clinical Nutrition), professional society memberships, honors and publications that require his being recognized as pre-eminently, if not uniquely, qualified to testify in regard to the subject matter of this proceeding.
Dr. Lutwak identified the following as causes of underweight: the inadequate consumption of calories, cancer, psychiatric problems resulting in anorexia nervosa, some gastro-intestinal diseases that do not permit proper utilization of food, and genetics. (Tr. 29)
Weight gain is a chemical process resulting from the conversion of nutritionally ingested material into tissue ( id .). If a person attempts to gain weight too rapidly, there can be certain untoward results. For example, if a person has been subsisting on 1500 calories per day, the addition of 1500 or 1800 calories per day would be a dramatic caloric increase which the body might not tolerate. On the other hand, the addition of that many calories to the daily diet of a person who normally consumes twice that amount could be tolerated. (Tr. 33)
One quart of milk contains 45 grams of lactose, and 1 1/2 quarts contain 67 1/2 grams. In the case of skinny persons who do not usually drink milk, and there are such persons, if they ingest more than 25 grams of lactose per day, the result could be extremely sever diarrhea, gastro-intestinal cramping, and gas, all of which would cause the loss of other nutrients. (Tr. 35)
For a skinny individual who had been consuming 1500 calories per day, the addition each day of the fat (about 38 grams) contained in Formula #7 would be poorly tolerated and the result would be nausea and further diarrhea. (Tr. 35)
A person who is on a 1500 calorie per day diet consumes approximately 200 to 500 milligrams of sodium per day. Formula #7, when mixed with one quart of whole milk, contains approximately 700 milligrams of sodium. Such a dramatic increase in the consumption of sodium could, depending on the status of the individual, produce congestive heart failure. (Tr. 35) This result would not occur to a "skinny" person normally ingesting more than 1500 calories per day who decides to gain weight and takes Formula #7. The last-described type of person may, however, have lactose intolerance. (Tr. 63)
Lest it be thought that the assumption in the foregoing situations involving individuals who consume 1500 calories per day presents an extreme case, Dr. Lutwak pointed out that the incidence of lactose intolerance is a definite possibility. According to some recent studies, approximately 20 per cent of the American population are not tolerant of lactose. Even a normal individual consuming 2000 - 30000 calories per day might not have been consuming lactose, and for these people the sudden addition of even 40-60 grams of lactose per day would be sufficient to produce, in the course of the first few weeks, tremendous symptoms of the type heretofore described. (Tr. 36-37)
Again, for a normal individual, the ingestion of a product such as Formula #7 which is relatively rich in fat and high in soluble sugar could produce nausea. This is an individual reaction which is not wholly predictable, but it occurs in a significant percentage of the population (not over 50 per cent). (Tr. 37-38)
If a person increases his caloric intake but does not increase his physical activity, the result is the addition of fat to the body. This fat is distributed to certain external fat depots, such as around the neck, on the back below the shoulder blades, on the sides of the chest, along the pectoralis muscle, the abdomen (particularly above the hip bone), the hips, and the backs of the thighs, and to some internal organs such as the liver and the intestines. There is, however, no food or food supplement that permits the user to control the distribution of newly gained weight or to gain weight in specific areas. (Tr. 40)
If a person adds 1500 calories, or more, to his daily food intake but does not exercise, he does not thereby increase his strength. Such a person will, also, not add muscles to his physique. (Tr. 48) For a person who is not malnourished, the protein derived from Formula #7 will replace muscle tissue that is being normally broken down, but it will not form new muscle tissue. (Tr. 71) If a skinny person gains weight by taking Formula #7, only be exercising will he gain strength. (Tr. 82)
Dr. Lutwak prescribes diet supplements at times for his patients, and, based on his familiarity with such products, he said that there is nothing special or unique about Respondent's Formula #7, as compared with other products being sold for similar purposes and which are available on the market. (Tr. 48-49)
The witness examined the label on the tablets sent, in some instances, with orders of Formula #7, which label indicates (and it was not questioned) that 6 tablets per day contain the following amounts of the specified ingredients (Ex. C-8):
Iron (from Ferrous Gluconate) ... 45 mg. 450%
Thiamine Hydrochloride........... 8 mg. 800%
Riboflavin....................... 3.6 mg. 300%
Niacin........................... 30 mg. 300%
Cyanocobalamin................... 6 mcg. X
L-Lysine Monohydrochloride....... 250 mg.
Pyridoxine Hydrochloride (Vit. B-6) 0.5 mg. X
Choline Dihydrogen Citrate....... 10 mg. * *
In a special base containing Dessicated Liver, Malt, Yeast.
* Minimum Daily Adult Requirement
** Need in Human Nutrition not Established
X Need in Human Nutrition Established, but no MDAR Set.
DIRECTIONS: Two tablets taken 30 minutes before each meal;
6 tablets daily.
Distributed by: WEIDER FOOD SUPPLEMENTS INC., Woodland
Hills, Calif. 91364.
With respect to pills containing these ingredients, Dr. Lutwak stated, in effect, that there are some people who might eat more while taking these pills because these people are unusually susceptible to the power of suggestion. As to whether tablets containing the foregoing ingredients would, in and of themselves, stimulate appetite, the witness answered that, because the use of these tablets has never been subjected to a scientifically conducted double-blind test, he could not flatly say that the appetite of some individuals would not be stimulated. The nature of the answer and the caution with which it was expressed strongly indicate Dr. Lutwak's doubt that the tablets would stimulate the appetite of any but an extremely limited number of persons, and that there would be many persons whose appetite would not be affected by the ingestion of the tablets. (Tr. 53-54)
Deficiencies of thiamine and niacin in the diet would cause the loss of appetite. A deficiency of either of these substances is unusual and, if such a deficiency exists, it is difficult to identify. If an individual with such deficiencies were to be found, Formula #7 probably would contain enough thiamine and niacin to restore the needed vitamins to adequate levels. (Tr. 115)
Coming to the crux of this case, namely, whether a person taking Formula #7 will gain 14 pounds in 14 days, Dr. Lutwak said that it is possible that there may be some individuals who could achieve that rate of weight gain, but that the average, normal individual would gain weight at the rate of about three quarters of a pound per day, assuming the use of the 1500 calorie product. (Ex. C-4). To gain a pound a day for fourteen days a person would have to ingest from 1800 to 2600 calories per day more than his maintenance requirements. (Tr. 118) Thus, even the 1800 calorie version of the product would not, as is represented for it, cause all persons who take it to gain 14 pounds in 14 days. That there are significant numbers of individuals for whom the consumption of the product will not produce the promised results is not stated or suggested in the advertisements.
The medical expert was cross-examined at length and in detail, but in none of the particulars summarized above, which are important to the decision in this case, was his testimony weakened or changed.
Respondent called to testify four witnesses, as follows:
1. David C. Blanchard, A.A., Bakersfield College, California; B.A., Sacramento State College, California; Certificate in Physical Therapy, Stanford University, California; Registered Physical Therapist;
2. James Hanley, B.S. in Physical Education, Utah State University; M.S. in Physical Education, Southern Illinois University; Teacher, Athletic coach, physical education trainer, writer in area of physical education and sometimes employee of and writer for Joe Weider;
3. Arnold Schwarcenegger, professional body builder, holder, at one time or another, of the following titles -- Australian Weight Lifting Champion European Junior Weight Lifting Champion, Junior Mr. Europe, Mr. Universe, Mr. World and Mr. Olympia, and
4. Sam Permison, U.S. Navy, retired; warehouseman employed by Weider International (address not disclosed in the record.)
Mr. Blanchard's testimony will be considered first. To begin with, he is not really certain as to the product he used in a study he conducted for a Mr. John Lima, General Health and Fitness Corp., 531 32nd Street, Union City, New Jersey 07087. (Ex. R-5) The study purports to show that those participants taking an 1800 calorie per day dietary supplement (with added ingredients) tended to lose less weight than did those participants who did not take the dietary supplement. Mr. Blanchard is strongly of the view, however, that he used a product called Protein Weight-Gainer, a liquid, which is put up in cans labeled to show that the contents aggregate 600 calories. The study was conducted by Mr. Blanchard with young men engaging in early season football practice at Stanford University.
There are several reasons why the results of this study are of minimal significance in the consideration of this case. The subjects of the study, being collegiate football players, are not representative of the general public to whom Respondent's advertisements are addressed. All of these football players had been given a physical examination by a physician prior to engaging in the test, (Tr. 181) so each one must have been in adequate physical condition to withstand the rigors of the practice sessions. All participants in the study were on a "training table" diet and the players were encouraged to, and about half of them did, add other, high-calorie ingredients to the product they were taking.
There was no comparison of the number of calories consumed by those taking the supplement with the number of calories consumed by those not taking the supplement. The report of the study shows that only those participants who took Protein Weight-Gainer developed diarrhea during the course of the study. (Tr. 181-182) There may have been some participants in the study who did not take the supplement but who did develop diarrhea, but no light is shed on this point because "There are no remarks on the people who did not partake of the supplement***." (Tr. 182) Some of the participants who did not take the dietary supplement lost no weight. (Tr. 148)
The next witness, Hanley, conducted another study (Ex. R-7) relied upon by Respondent. This 14-day study was conducted in 1968 when Mr. Hanley was an athletic coach and teacher at Lake Superior State College. He selected 48 persons whom he divided into Groups A, B, C and D, with 12 persons in each group. One group (Group A) lived off the campus, so Mr. Hanley could not control, and he did not know, what they ate. Despite this lack of control, Mr. Hanley stated that Group A took only Formula #7, which Hanley said had a content of 1600 calories (Ex. R-7, p. 3); Group B took the food supplement and was on a special diet; Group C took the food supplement, plus another product called "Insta-Power", and, also, a special diet; and Group D took the food supplement, plus a different product called "Super Pro 101" and, also, a special diet.
It is difficult to see how this "study" could be expected to establish anything in the field of weight gain that would shed light on this proceeding. One reason for this statement is that, admittedly, no one knows what Group A consumed in addition to Formula #7, whatever its caloric content was (Tr. 198, 238), and the remainder of the participants took different food supplements, in addition to a special diet, to such an extent that the results as to Groups B, C and D can not be related to or compared with the results for Group A or within their own three Groups. For whatever it may be worth, in Mr. Hanley's study no person in Group A (those who took only the food supplement identified by Mr. Hanley as Weider's Crash Weight (R-7, p. 2)) gained 14 pounds in 14 days. (Tr. 246). The average gain for this group was 8.75 pounds.
Mr. Schwarcenegger testified that he uses Formula #7 to gain weight. He does not like the flavor of Exhibit C-4, the 1500 calorie version (Tr. 345), so he uses the 1800 calorie version which he always enriches with additives of various kinds, among which are milk, nuts, dry food, bananas and, sometimes, whiskey. (Tr. 309) In addition to the use pf Formula #7, Mr. Schwarcenegger said that his regular diet consists of 3 meals per day of steak and eggs, and that he eats the same amount of food throughout the year. (Tr. 288) The witness said that when he trains he works out 4 hours per day and takes up to 5 cans per day of Formula #7. This regimen permits him to gain perhaps 10 pounds in 14 days (Tr. 287), but he said he would gain more if he exercised less.
Mr. Schwarcenegger operated a gymnasium in Munich for a period of about two years. Some of the people who came to him wanted to gain weight and he recommended Formula #7 to them. He said that some of these people did not gain weight because they had poor metabolism, which, when corrected, permitted them to gain weight.
Mr. Schwarcenegger is paid by Weider International for stories he writes for various publications and for pictures of himself. Another fringe benefit is the fact that he purchases Formula #7 and other Weider products at cost. (Tr. 303) He, also, consults with Mr. Weider about once a month on the subject of physical training. (Tr. 316)
The last witness to testify in this proceeding was Mr. Sam Permison, Warehouse Manager for Weider International in California. Mr. Permison testified that he supervises the shipping of Formula #7 from California and that the product he ships is identical to the 1800 calorie product (Ex. R-2), which was received in evidence at the insistence of Respondent. (Tr. 370, 379, 381) Three flavors - chocolate, vanilla and strawberry - are now sold by the Respondent. With each shipment a copy of a booklet entitled "Gain 14 Pounds of Solid Muscles In 14 Days" (Ex. R-9) is enclosed. (Tr. 378, 381-382)
On the front cover of this booklet is a sticker or label bearing the following instruction:
"DISREGARD ALL COUPON ADDRESSES
SEND ALL ORDERS TO
21100 ERWIN ST.
WOODLAND HILLS CA 91364"
Except for the sticker or label, Ex. R-9 is identical with Ex. R-1 on which there is a sticker or label bearing the following instruction:
"DISREGARD ALL COUPON ADDRESSES
SEND ALL ORDERS TO
JOE WEIDER DEPT 852
55 MAPLE STREET
NORWOOD NJ 07648"
In these booklets sent with the product, purchasers are told to "beef-up' each glass of CRASH-WEIGHT with high-calorie, easy-to-blend foods: bananas, yogurt, honey, eggs, etc. This will add loads of extra calories to your CRASH-WEIGHT drinks to help make it faster and easier for you to gain up-to-a-pound-a-day." (Ex. R-1 and R-9, 3rd unnumbered page, excluding front cover.) "For more details of this 'beefing up' process" the reader is referred to "page 16 and the special CRASH-WEIGHT recipes on page 23." (See also p. 5, Ex. C-9)
These instructions point up the sharp contrast between what the prospective purchaser is told in the advertising material and what the customer is told in the post-sale literature. The pre-sale advertising matter extols the weight-gain potency of Formula #7, in and of itself, whereas the booklets sent to the purchaser with his order reveal that substances other than milk are recommended to " help " achieve the result previously promised for Formula #7, alone.
ARE THE REPRESENTATIONS TRUE OR FALSE
Initially, it is found that, except in a few instances which probably result from oversight or inadvertence, persons who order Formula #7 probably are sent, also, the "Weight Gaining Course" guide, the 15 course body-building book and three issues of a "Body-Building Newsletter." Thus, representations IV (8) and (9) are found to be true on the basis of (1) Permison's testimony and (2) the Sayers and Cooper affidavits submitted by Respondent and received in evidence without objection after the hearing. Additionally, whether in fact such literature is sent to purchasers is not regarded as being material, since the purchaser is primarily, if not solely, interested in obtaining the products that assertedly will assist directly in weight gain.
With respect to representation IV (12), it is true that Mr. Permison did state that the product is now prepared in only three flavors, and not six as represented in the advertising. Although the representation is literally false, the fact that only the flavors of chocolate, vanilla and strawberry are now available is scarcely sufficient to influence a purchaser who is interested in obtaining this highly-touted weight-gaining aid. The representation is false but not material.
No finding is made with respect to the truth or falsity of representation IV (7) because the expert testimony in regard to the appetite-stimulating capability of the pills sent to customers for that purpose is inconclusive.
By far the most important representation, and the one which forms the heart of this case, is the one stated in IV (1) to the effect that taking Formula #7, as recommended, will produce a 14 pound weight gain in 14 days. Respondent stresses the "as recommended" portion of the charge and it states that the literature "recommends" the addition of various high-calorie ingredients to "beef-up" the product. This recommendation is made, but it is not made until after the product has been ordered and received by the purchasers. What the prospective purchaser is led by the advertising to believe is that Formula #7 is, itself, the answer to their yearning to be able very quickly to acquire additional weight, muscle, strength and a more shapely body.
The falsity of representations set forth in the Complaint as paragraphs IV (1), (2), (3), (4), (5), (6), (10) and (11) is established by the exhibits received in evidence and by the testimony of Dr. Lutwak related to each of the foregoing representations, a summary of which testimony is to the following effect:
(1) and (6) The 1500 calorie version of Formula #7 will cause no one to gain 14 pounds in 14 days. (Tr. 41) The 1800 calorie version of the product probably will enable some persons to gain that amount of weight in the stated period of time, but the latter product will not, as the reader of the advertising matter is led to believe, permit all persons to achieve that result. (Tr. 118)
(2) The use, as recommended, of Formula #7 will, for the significant percentage of the population with lactose intolerance, produce nausea, diarrhea and other gastro-intestinal symptoms which will result in illness and loss of weight, rather than the advertised fast, healthy weight gain. Other serious complications could result from the use of Formula #7. (Tr. 35-37)
(3) and (4) Unless a person exercises while taking Formula #7, the added calories will produce added fat on the body, but no additional strength or muscle. (Tr. 39)
(5) and (11) Formula #7 is a more or less run-of-the-mill diet additive and does not constitute a "unique and special formula." (Tr. 49)
(10 Neither Formula #7 nor any other food supplement or product will allow an individual to gain weight in specific areas or to control the distribution of newly gained weight. (Tr. 40)
The foregoing summary, based, as it is, upon the testimony of the only competent expert witness thoroughly qualified to testify in regard to the effect of taking Formula #7, demonstrates that in this case the "advertiser deliberately induces its patrons to purchase its product in the belief that its value far exceeds its true worth." Borg-Johnson Electronics, Inc. v. Christenberry , D.C.S.D.N.Y., Kaufman, J., 169 F. Supp. 746, 751 (1959)
A motion by Respondent to keep the record open after the hearing for the purpose of taking the testimony of a Dr. Marino Zoller, who was to have been called by Respondent to give testimony as an expert medical witness in this case, was granted. (See Order dated July 16, 1973) A date was set for the taking of the testimony of Dr. Zoller, but, for reasons not apparent from the record, no request was made for a renewed session of the hearing to take such testimony. Accordingly, the testimony of Dr. Lutwak is the uncontradicted medical testimony in this record and that fact, even if that testimony were not so convincing in and of itself, is sufficient to establish the state of medical opinion on the crucial issues. (See U.S. Health Club, Inc. v. Major , CA 3, 292 F.2d 665 (1961)).
Since many of the representations made in the advertisements, whether relating to the 1500- or the 1800-calorie Formula #7, are both material and false, it does not matter under which name Respondent sells which product. The fact is that under a variety of names and from a variety of addresses there is being conducted a scheme or device involving one phase or another of the business of selling a product or products through the mails by falsely representing in advertising material that users will receive benefits far greater than they actually will experience. Orders may be placed with, and remittances may be sent to, any of the various names and addresses.
CONCLUSIONS OF LAW
The Respondent under the names and addresses Joe Weider, 25 Maple Street and 55 Maple Street, Norwood, New Jersey 07648; Weider Distributors, Inc., 25 Maple Street, Norwood, New Jersey 07648; Weider Barbell Co., 1220 5th Street, Santa Monica, California 90401; Joe Weider Crash Weight Department, 531 32nd Street, Union City, New Jersey 07087; Joe Weider Crash-Weight Plan, 801 Palisade Avenue, Union City, New Jersey 07087; Weider Food Supplements, Inc.; Weider Sporting Goods; Weider Barbell Co., Inc.; and Joe Weider, all at 21100 Erwin Street, Woodland Hills, California 91364, 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 39 U. S. Code. 3005.
Proposed findings of fact, conclusions of law and supporting briefs have been submitted by the parties. To the extent herein indicated these proposed findings of fact and conclusions of law are adopted. Otherwise, such proposed findings of fact and conclusions of law are rejected for the reasons stated or because they are immaterial.
An order of the type provided by 39 U. S. Code 3005, substantially in the form attached, should be issued against all of the foregoing names employed in the conduct of the unlawful business herein found.
1/ Because of the joint nature of the activities conducted under all of these names, hereafter they will be collectively referred to as "Respondent."