P.S. Docket No. 2/96
March 19, 1975
In the Matter of the Complaint Against
JOE WEIDER and BODY PERSUASION SYSTEMS, INC.,
21100 Erwin Street at
Woodland Hills, California 91364
and
"5" MINUTE WAIST SLIMMER PLAN and
"5" MINUTE BODY SHAPER PLAN,
2875 Bates Road at
Montreal, Quebec
P.S. Docket No. 2/96
March 19, 1975
William A. Duvall Chief Administrative law Judge
APPEARANCES:
James J. Robertson, Esq.
Law Department U.S. Postal Service
Washington, D.C. 20260 for Complainant
Sheldon S. Lustigman, Esq.
Bass and Ullman
747 Third Avenue
New York, New York 10017
INITIAL DECISION
This proceeding is brought under 39 U. S. Code 3005. The General Counsel for the United States Postal Service (Complainant) has charged that a scheme or device for obtaining money or property through the mail by means of false representations is being conducted under the following names and addresses: Joe Weider and Body Persuasion Systems, Inc., at Woodland Hills, California; and "5" Minute Waist Slimmer Plan and "5" Minute Body Shaper Plan at Montreal, Quebec, Canada (hereinafter referred to collectively as "Respondent").
The activity in which Respondent is engaged is the sale through the mail of a device bearing various names, and which may be described as follows (Ex. C-1):
At one end there is a short piece of line (about 1 1/2 feet long), one end of which is passed through a button and tied so that the end of the line will not fray and so that the button will not slide on the line; at the other end of this line there is a flat, triangular piece of plastic with a hole in one corner through which the line is passed and tied; at the other two corners there are hooks, to each of which is attached a small (approx. 2 in. diam.) pulley; through each pulley, a piece of line (approx. 7 ft. in length) is led; to one end of each of the two longer lines there is a single, plastic-covered loop; and to the other end of each of the two longer lines there are two plastic-covered loops.
The user of the device is to fasten the top, or button, end of the short line to something that can be made to hold firm, such as a hook in a wall or a doorknob. When this has been done, the user gets down on the floor, places his hands in the single loops on the longer lines and places his feet in the double loops on the other end of the longer lines. The user then engages in certain exercises involving various leg and arm movements while lying on his back, stomach or on either side. The exercises to be taken are explained in a booklet entitled "Joe Weider's TOTAL BODY SHAPER". (Ex. C-1-B)
In the Complaint, it is charged that in the sale of this device through the mails Respondent makes the following representations which are alleged to be both material and false:
"(1) That five-minute use of its product can cause a loss of 6 inches from a person's waistline;
"(2) That the user of this product may achieve the reduction in weight or measurements indicated in subparagraph (1) while maintaining his present level of caloric intake;
"(3) That the user of Respondents' product can lose 6 inches from their waist by simply doing one exercise for five minutes each day for 21 days;
"(4) That the user of Respondents' product may achieve the reduction in weight or measurements indicated in subparagraph (3) while maintaining his present level of caloric intake;
"(5) That use of Respondents' product exercises all of a person's body muscles in one coordinated movement;
"(6) That use of Respondents' product is safer than a strenuous gym workout;
"(7) That Respondents' product permits a person to exercise more efficiently or more effectively than would otherwise be possible;
"(8) That a user of Respondents' product will lose 4 inches from their waistline and 10 pounds of excess weight after just 14 days use;
"(9) That use or Respondents' product is completely safe, regardless of age;
"(10) That the purchaser of Respondents' product will receive a free, handy, pocket-size wallet which may be used to carry the product;
"(11) That a user of Respondents' product will lose 14 pounds after 21 days use;
"(12) That a user of Respondents' product may achieve the weight loss indicated in subparagraph 11 without restricting caloric intake;
"(13) That a user of Respondents' product may lose 80 pounds of weight and 11 inches from the waistline after 6 months use without restricting caloric intake;
"(14) That a user of Respondents' product may lose 5 inches from their waistline and 10 pounds of fat with (sic) reducing caloric intake;
"(15) That use of Respondents' product is safer than any other vigorous activity;
"(16) That a user of Respondents' product will lose 4-1/2 inches from his hipline and 23 pounds after just 21 days use without restricting caloric intake."
In the sale of the device previously described, Respondent has advertised in such publications as "Male", "Cosmopolitan", "Photoplay" and "Modern Screen" (Exs. C-2-A-1, C-2-A-2, C-2-B, C-2-C and C-2-D, copies of which are attached hereto as Appendices A, A-1, B, C and D). This advertising material must be examined to determine whether Respondent makes the representations quoted above from the Complaint.1/
Rather than quoting at length from the language of Respondent's advertisements, the various representations have been listed and opposite each one, when appropriate, there is a citation to a portion of an Appendix at which each representation appears.2/
Charged Representation
Number Appendix Where Found
(1) This representation is not made;
it is too restrictive in that the
reader is advised that the
5-minute use of Respondent's
product must be repeated every day
for 21 days in order to achieve
the stated results.
(2) Because this representation is
predicated on (1), above, this
representation is not made for the
reasons stated in regard to
representation number (1).
(3) App. A and A-1 , top
headline and
language beside picture of man
shown on App. A-1; App.B , in
large print at top of page.
Charged Representation
Number Appendix Where Found
(4) Same as for representation Number
(3).
(5) App. B , left-hand column,
1st
paragraph under "What is this
ingenious 5 minute waist shaper
plan?"; App. C , left-hand
column,
1st paragraph under "What is this
ingenious plan?"
(6) App. B , left-hand column,
2nd
paragraph under "What is this
ingenious 5 minute waist shaper
plan?"; App. C , center
column, 2nd
paragraph under "What is this
ingenious plan?"
(7) and (15) Because these statements, if made,
are regarded as mere "puffing", no
effort has been made to locate
them.
(8) App. B , left-hand column,
1st
sentence under "How much can you
expect to lose in 14 days?";
App.
D , left-hand column, under
"What
comes off in 14 days?"
(9) App. A-1 , right-hand column,
numbers 1 and 5 under "'Expert'
Testimonials".
(10) App. A and B , in the order
coupon.
This representation is not
regarded as being a material
representation.
(11) and (12) App. B , purported
testimonial of
Aleta Hopkins.
(13) App. B , center column,
picture and
data regarding Janet Houte, except
that reduction in waist
measurements is shown as 9 inches.
(14) App. C , top half of page,
picture
and data regarding Janette Coupar.
(16) App. D , top half of page,
picture
and data regarding Joanne Cox.
In summary of the foregoing tabulation, it is found that Respondent makes the representations set forth in paragraph IV of the Complaint as subparagraph numbers (3), (4), (5), (6), (8), (9), (10), (11), (12), (14) and (16). Representation number (13) is made in part but the alleged loss of 11 inches in waist measurement is not represented. The finding that Respondent makes the representations indicated above is based upon either the specific language of the advertising matter or upon the effect such advertisements "would most probably produce on ordinary minds." Donaldson v. Read Magazine , 333 U.S. 178, 189.
With respect to the representations thus found to have been made by Respondent, it must now be determined whether such representa- tions are true or false. In making this determination consideration must be given to the testimony of the witnesses.
Complainant's witness was Donald W. Pettis, M.D. Dr. Pettis is a graduate of Stanford University Medical School, he is a member of the faculty of the Medical School of the University of Southern California and he is certified by the Board of Internal Medicine. (Tr. 14)
Dr. Pettis said that about 35-40 per cent of the normal human body is fat and that the presence of amounts of fat in excess of these percentages is considered to be obesity. He said that the treatment for obesity is a three-pronged approach, namely, increased exercise, decreased food intake, and the stimulation of motivation to remain on the program.
According to Dr. Pettis one pound of fat represents approximately 3000 calories. In order to lose one pound of fat, one has to have a deficit in the roughly approximate amount of 3000 calories. In the ordinary reducing program the aim is to achieve a 600-700 calorie deficit per day, which, together with the appropriate amount of exercise, is designed to accomplish a weight loss of 1 1/2 to 2 pounds per week. Sheer body weight loss can be produced by losing water, but this is only a temporary weight loss which is quickly - in a matter of hours, or perhaps a day - regained. This type of weight loss does not represent fat loss. (Tr. 15-17)
Dr. Pettis gave the following examples of rates of caloric expenditure:
1. A highly trained athlete can expend no more than 50-60 calories per minute, and this rate of expenditure can not be maintained for any long period of time;
2. A person lying in bed will expend about one calorie per minute;
3. The average person doing calisthenics will expend 4-5 calories per minute;
4. A trained sprinter sprinting will expend 30-40 calories per minute;
5. A person in poor physical condition swimming will expend 60-80 calories per minute, but, again, these figures represent top expenditures at rates which can not be sustained;
6. In a general way, a person can do hard work - if given suitable rest periods - during a day that may produce an average expenditure rate of 15 calories per minute, but this is about as great an expenditure rate as a person in good physical condition can achieve. Dr. Pettis said that he had examined Respondent's instruction booklet (Ex. C-1-B) and that the exercises described and depicted therein would produce, at most, caloric expenditure at the rate of 6-7 calories per minute, or 30-35 calories per 5-minute exercise period. He said that a person would not lose 6 inches from his waist by performing the exercises as directed by Respondent if such person did the exercises 5 minutes per day for 21 days, but maintained his previous caloric intake. While any exercise in the proper amount will increase one's fitness, he would not expect anyone to lose 4 inches off his waist and 10 pounds of weight simply by following Respondent's exercise plan for 14 days. Similarly, if a person maintains his caloric intake and uses the device as indicated by Respondent, such a person will lose neither 14 pounds in 21 days, nor 80 pounds in six months.
Dr. Pettis was asked whether a person who uses the device as directed by Respondent would lose 23 pounds and 4 1/2 inches from the hip line in 21 days. The witness pointed out that this would be a weight loss of about a pound a day (a claim which he categorized as "ridiculous" (Tr. 55)), and he said that such a weight loss could not be so produced.
Dr. Pettis said that if a person takes the exercises shown on pages 7 - 15 of Respondent's booklet two times a day, for 5 minutes each time of use, for a period of one week while maintaining his caloric intake, the person might, allowing generous estimates for his caloric expenditure, lose 1/4 to 1/2 pound in 1 week and 1/2 - 2/3 pound in 2 weeks. Allowing, generously, a caloric expenditure of about 100 calories per day, such a person could lose about 1 pound in 1 month and 6 - 7 pounds in 6 months.
With further reference to Respondent's exercise program, Dr. Pettis said that if a person follows the exercises as shown on pages 7 - 15 of Respondent's booklet, and if he exercises so strenuously that at the end of 5 minutes he is exhausted, he might expend 100 - 150 calories. Dr. Pettis said that if one's caloric intake stays the same but the amount of exercise increases, he will lose weight - the amount of weight loss depending on how much he exercises.
In spite of the foregoing testimony, however, Dr. Pettis did say that for the average person who has no joint problems, the kind of turning, twisting and leg-raising depicted in Respondent's booklet would be useful. (Tr. 65)
Appearing as a medical witness for Respondent was Leroy J. Amar, M.D. Dr. Amar, a graduate of Howard University Medical School, Washington, D. C., specializes in the fields of obstetrics and gynecology, and he is affiliated with a number of hospitals in the Los Angeles area.
Dr. Amar became acquainted with Respondent's device through his roommate. He said that on July 12, 1973, Mr. Weider asked him to use the device twice per day for 5 - 6 minutes each time of use and to let Mr. Weider measure him. Mr. Weider also told Dr. Amar that he would like to have Dr. Amar's opinion of the device. Dr. Amar said that on July 12, 1973, he weighed 199 pounds and that his waist measured 39 7/8 inches. From July 16 through July 22, 1973, he used the device every night and occasionally (perhaps twice per week) in the morning. He testified that after 6 days of such use, he weighed 190 pounds and he measured 39 1/2 inches in the waist. (Tr. 367-371).
Dr. Amar said that he was not on a restricted diet during the time he exercised with Respondent's device but that he did substitute diet drinks for Coca-Cola and Pepsi, and he reduced from 16 to 6 the number of bottles or cans of such drinks he consumed per day.
The use of the device did not aggravate a back injury he suffered a few years earlier, and he said that its use causes less strain and fatigue than running, push-ups, knee bends and the like. It does cause a slight ache in stomach muscles when it is first used. (Tr. 372-3).
According to Dr. Amar, whether a person could lose 4 inches from his waist and 10 pounds in weight in two weeks by only using the "body-shaper" two times per day, would depend a great deal on the physical condition, glandular structure and caloric intake of the individual, and whether the person actually works at the program. (Tr. 374)
Dr. Amar said that he does not know whether the caloric expenditure resulting from 5 minutes use of the device is comparable to the caloric expenditure caused by doing 5 minutes of sit-ups or leg raises without the device. (Tr. 376) In fact, Dr. Amar pointed out several times that he does not know much about matters relating to "oxygen intake and caloric breakdown" and the "metabolic and catabolic processes in the body". (Tr. 383, 389)
Dr. Amar agreed with Dr. Pettis that the treatment of choice for obesity consists of diet and activity. (Tr. 399) When asked questions as to whether persons could realize the various weight and girth losses in the manner set forth in the different charges in the complaint, Dr. Amar said that such effects were "possible", "probable" in some cases, and "improbable, although sometimes it does happen." (Tr. 409, 430, 432, 436-7) Finally, Dr. Amar said that he would not expect all persons who use Respondent's device in accordance with Respondent's instructions to accomplish even one of the more modest reductions claimed by Respondent (4 inches from waistline and 10 pounds in 2 weeks, as set forth in Charge No. (8)). Relating his answer to his own practice, Dr. Amar said that he has a patient population of about 10,000 patients, of whom 1,000 are overweight, and of the latter group he could select 40 people who could achieve such results. Dr. Amar concluded by saying: "I would be happy to see, say, ten per cent of them achieve that result." (Tr. 474-5)
Another witness called by Respondent was David Franklin Berg, a Registered Physical Therapist, who received his B.S. degree in Physical Therapy from the University of Southern California, followed by an M.S. degree in Rehabilitation Counseling from the same institution.
Mr. Berg began to use the device regularly two weeks before the hearing, at which time he weighed 192 pounds and his waist measured 35 inches. He used the device two times per day for five minutes each time, except on two occasions when he used it for 14 and 12 minutes, respectively. He said that at the end of the period he weighed 180 pounds and that his girth at the waist was 33 inches. Mr. Berg said that the large number of repetitions of the different exercises which the device makes possible develops one's endurance. The resistance factor in using the device, he said, is very low. He continued by saying that the low resistance factor permits the high number of repetitions, which means that work is going on, which means that energy is being expended, with the result that weight is lost. Mr. Berg said that using the device made him tired but did not leave him fatigued.
Mr. Berg disclaimed being on a restricted diet, but he admitted to reducing his milk consumption from 1/2 gallon per day to 3 eight-ounce glasses per day. (Tr. 76) He also cut back from 5 to 2 slices of bread per day. (Tr. 99) Mr. Berg weighed himself and he measured himself with a cloth tape measure. Mr. Weider, who asked Mr. Berg to testify, gave the device to Mr. Berg and paid him to do the exercises two times per day for two weeks. (Tr. 109-110)
There followed a succession of user witnesses whose testimony is best presented in tabular form with accompanying comment, as follows:
Witness Weight Waist Thigh
1. Ellis start 207 lb. 35"
30 days later 171 lb. 31"
decrease 36 lb. 4"
This witness weighed himself on bathroom scale; he was
measured by his wife using a cloth tape measure.
2. Dixon start 121 lb. 30"
7 days later 114 lb. 25"
decrease 7 lb. 5"
This witness works periodically for Weider as a model; she
was measured alternately by a photographer's assistant and
by Mr. Weider. She admitted adopting an unnatural pose in
an advertisement for the device in this proceeding.
3. Cox start 215 lb. 40 1/2"
1 wk. later 200 lb.
decrease 15 lb.
2 wks. later 190 lb. 34 3/4"
overall decrease 25 lb. 5 3/4"
This witness is the General Manager for Mr. Weider. He
weighed himself on bathroom scales and he was measured by
Mr. Weider "Right about where my belt goes". (Tr. 178)
4. Christiansen start 260 lb. 46"
after 10 days 240 lb 40 1/2"
decrease 20 lb. 5 1/2"
This witness said that he used the device twice a day, as
directed, that he took his own measurements and weighed
himself on bathroom scales.
5. Santangelo start 132 lb. 38 1/2" 27" 23 1/2"
1 wk. later 118 lb. 36" 25" 22"
decrease 14 lb. 2 1/2" 2" 1 1/2"
This witness testified that she used the device twice a day,
five minutes each time, and that she measured herself with a
cloth tape measure. Despite the fact that she sees Mr.
Weider as a patient once a week, her testimony in regard to
results claimed to have been obtained is somewhat more
reasonable, and, therefore, it is more nearly credible than
most of any other of Respondent's user witnesses.
6. Tizzard start 208 lb. 46"
after 14 days 192 lb. 39"
decrease 20 lb. 7"
This witness used the device 45 minutes in the morning and 1
hour in the evening; he "cut down sharply on his eating";
and he was weighed and measured by his wife. Exercise
lowers his desire for food.
7. Battaglia start 126 lb. 38" 35 1/2"
after 7 days 118 lb. 36 1/2" 32 1/4"
decrease 8 lb. 1 1/2" 3 1/4"
after 14 days 113 1/2 lb. 36" 27 1/2"
overall decrease 12 1/2 lb. 2" 8"
This witness, who has known Mr. and Mrs. Weider socially for
a number of years, was weighed by Mr. Weider and measured by
Mr. Weider.
8. Joanne Cox start 167 lb. 44" 33 1/2"
after 21 days 144lb. 39 1/2" 27"
decrease 23 lb. 4 1/2" 6 1/2"
This witness is the wife of witness number 3, above, Mr.
Cox.
The only competent, credible, objective and impartial testimony in this record is that of Dr. Pettis. The crux of his testimony is that to lose a pound of fat requires a caloric deficit of approximately 3000 calories. The use as directed of Respondent's device causes about the same calorix expenditure as would be produced by engaging in calisthenics, or, at most, about 6 to 7 calories per minute, or 30 to 35 calories per 5-minute exercise period. Two such periods per day would produce a caloric expenditure of 60 to 70 calories per day. Dr. Pettis;s statement that to talk of losing a pound of fat per day is ridiculous becomes completely understandable, the claimed results of the user witnesses to the contrary notwithstanding. Whatever their cause, whether through error in weighing and measuring or from some other motivation, the results claimed to have been attained by these witnesses are, except as noted herein, so unreasonable and so unrealistic as to provide their own refutation. Of course, the duration of the use of the device by the witness Tizzard far exceeded the usage recommended by Respondent.
Assuming, arguendo , that the persons whose testimonials appear in Respondent's advertisement may have achieved the weight losses in the stated time periods claimed in the testimonials, although the competent, credible evidence in this case completely negates such claims, it is beyond cavil that such losses, if they occurred, resulted from far more, in terms of exercise and caloric restriction, than just one or two five-minute periods of use of Respondent's product with no reduction in caloric intake as the claims would indicate.
There were photographs of some of the user witnesses and near the close of the hearing there was an offer of proof in regard to testimony that would have been given by the photographer by whom most of the photographs were taken. (Tr. 476-478) The witness in lieu of whose testimony the offer of proof was made was Robert Gardner, who leases space in the building owned by Mr. Weider and who does photographic work for use in Respondent's advertisements. It was said that, if called to testify, Mr. Gardner would state that the pictures taken by him, both the "before" and "after" photographs, were made with the same camera, the same lens, and the same lighting conditions and that the pictures accurately reflect the condition of the subjects as they appeared when photographed.
Accepting this offer of proof at face value, it is obvious from looking at the photographs, themselves, that although lighting conditions may have been the same, light angles were different, the subject's postures were different in the "before" and "after" shots and the camera angles in such pictures were different. One witness (Dixon) admitted that she adopted an unnatural pose for a "before" photograph used in an advertisement received in evidence as Ex. R-2 (App. E hereto).
The credible evidence in this proceeding is clear and convincing that Respondent's representations shown herein as numbers (3), (4), (8), (11), (12), (13) - insofar as it represents a weight loss of 80 pounds in 6 months without caloric restriction, (14) and (16) are material misrepresentations which are false as matters of medical fact.
The remainder of the representations either are not made, or they are made and consist of puffing, or they are immaterial or they have not been shown to be false. Specifically, representations (1), (2) and (13) - insofar as it charges that Respondent makes a representation that the user of the product will lose 11 inches from the waistline are not made by Respondent. There was insufficient proof of the falsity of representations numbers (5), (6) and (9), and representations numbers (7) and (15) are regarded in this case as "puffing". Representation number (10) is not regarded as being a material misrepresentation.
Based on consideration of the entire record in this proceeding, it is concluded as a matter of law that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of 39 U. S. Code 3005.
Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered and they are adopted to the extent herein indicated. Otherwise, such proposed findings and conclusions are rejected because they are unsupported by, or contrary to, the evidence, or they are immaterial.
An order of the type authorized by 39 U. S. Code 3005 should be issued against Joe Weider and Body Persuasion Systems, Inc., 21100 Erwin Street, Woodland Hills, California 91364 and "5" Minute Waist Slimmer Plan and "5" Minute Body Shaper Plan, 2875 Bates Road, Montreal, Quebec, Canada.
____________________
1/ In paragraph "1." of the Answer, Respondent admits that it advertises its product and that it solicits remittances of money through the United States mails.
2/ The citation of a place in a particular Appendix does not mean that the cited place is the only place in Respondent's advertising matter at which the representation charged as being false appears.