In the Matter of the Complaint Against

GRAPEFRUIT PILL DIET,
P.O. Box 1418 and NU-GF DIET,
9454 Wilshire Boulevard at
Beverly Hills, California 90213

P.S. Docket No. 3/139

May 12, 1975

William A. Duvall Chief Administrative Law Judge

Lee H. Harter, Esq.,
Law Department, U.S. Postal Service,
Washington, D. C., for Complainant

Richard M. Crane, Esq .,
9595 Wilshire Boulevard,
Beverly Hills, California, for Respondent

INITIAL DECISION^1/

The General Counsel for the United States Postal Service, the Complainant in this case, has charged Grapefruit Pill Diet and NU-GF Diet of Beverly Hills, California, the Respondent, with engaging 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 filed Answer to the Complaint and denied engaging in any type of business that could properly be characterized as a scheme, but the Respondent did admit the use of the advertisements which were attached to the Complaint as Exhibits 1 and 2 thereto, and Respondent denied all the remainder of the charges of the Complaint.

The matter came on for hearing on April 14 before the undersigned in Los Angeles, California. At the hearing both parties were represented by counsel who participated in the examination and cross-examination of witnesses.

The Complainant charged that the Respondent was engaged in the use of false representation in connection with the sale of a program for losing weight. The program itself consists of two parts: One part is a diet which restricts the caloric intake of the individual who follows the diet to between 1200 and 1400 calories per day for a period of 14 days. The diet can be repeated as many days as the dieter chooses.

The other part of the program is a pill which is to be taken at the rate of one or two tablets before each meal with a glass of water or coffee or tea without crea, and the product also may be taken as a dietary supplement of Vitamin E and Vitamin C.

At the outset of the hearing certain exhibits which were stipulated into evidence established that the Respondent is engaged in business through the mails, and that the Respondent does fill orders for the product in exchange for the required remittance.

The specific charges set forth in the Complaint are found in paragraph III of that Complaint and they read as follows:

"By means of such advertisements, or others similar thereto, Respondents represent in substance and effect:

1.      That by use of Respondents' product, the
                         average obese man will lose:
                         a) 10 pounds in 10 days;
                         b) 18 pounds in 2 weeks (testimonial, Ex. 2-B);
                         c) a pound a day;
2.      That by use of Respondents' product, the
                         average obese woman will lose:
                         a) 10 pounds in 10 days;
                         b) 18 pounds in 2 weeks (testimonial, Ex. 2-B);
                         c) a pound a day;
3.      That the effective cause of weight loss is
                         the 'grapefruit pill', and not caloric
                         restriction; e.g.,
                               New Grapefruit Diet 'Pill' Gives Fast
                               Weight Loss (Headlines, Ex. 1 and 2-A);
                               The Grapefruit 'Pill' is Guaranteed to
                               Make You Slim Again;
                               * * *
                               Other Diet Methods Failed? Don't
                               Despair--Try the New Grapefruit 'PILL'
                               -- It Really Works] (Ex. 2-A);
4.      That the grapefruit pill is an integral part
                         of Respondents' program and necessary for the
                         reduction of weight;
5.      That the average obese person following
                         Respondents' plan can eat all he/she wants
                         and still lose weight (Ex. 1, 2-A);
6.      That the pills are absolutely safe;
7.      That little or not willpower is required to
                         lose weight using Respondents' product; e.g.,
                                 EASY WEIGHT LOSS (Headline, Ex. 2-A)
                                 EAT ALL YOU WANT...Still Lose Weight
                                 (Ex. 2-A)
                                 ...easily and quickly become slim; trim
                                 and attractive... (Ex. 1, 2-A)
                                 ...I have lost weight without trying.
                                 (Testimonial, Ex. 2-B)
8.      That the grapefruit diet pill contains a
                         diuretic in sufficient quantity to eliminate
                         excess water;
9.      That the grapefruit diet pill contains
                         ingredients in sufficient doses to counteract
                         hunger;
10.    That the user of Respondents' product will
                         experience a measurable and detectable loss
                         of weight after one pill and one meal; e.g.,
                                  You become satisfied on fewer calories
                                  and start losing weight immediately.
                                  (Ex. 2-B);
11.    That a person would have to eat 2-1/2
                         grapefruits every day to get the same vitamin
                         C content of one grapefruit diet pill (Ex.
                         2-B."

The issues involved in this case are, one, whether the Respondent does use the mails in the conduct of the business; two, does the Respondent make the representations which are set forth in the Complaint; and, three, are the representations found to have been made by the Respondent materially false, as a matter of fact.

The first of the foregoing issues has been disposed of.

In regard to the second issue, namely, whether the Respondent makes the representations set forth in the Complaint, it will be seen that the source of some of the representations are set forth in connection with the representation itself.

In view of the fact that the advertising literature used by the Respondent which was received in evidence as Complainant's Exhibits 1 and 2 will be attached to this decision as Appendices 1 and 2, no point would be served in dwelling at length on those particular charges for which the source is already stated. And in point of fact, most of the representations appear so clearly in the advertising literature of the Respondent that there is no need to dwell on this entire issue at length.

It will be pointed out, however, that representation 1(a) is based upon -- among other things -- the subcaption "Eat all you want and still lose weight," appearing on Appendix 2.

The source of representation 1(b) is stated.

The source of representation 1(c) is found -- among other places -- on Appendix 1 to this decision.

The source of the language in charge 2(a) is found on the first page of Appendix 2 under the language, "Eat all you want and still lose weight."

The source of representation 2(b) is stated in the Complaint.

The source of the language in representation 2(c) is found -- among other places -- in the third paragraph of Appendix 1 to this decision, and also on Appendix 2 to this decision under the language, "Lose up to a pound a day or more." Sufficient information is given in the Complaint as to the source of the language appearing in charge 3.

With respect to charge 4 of the Complaint the language on which this charge is based is found -- among other places -- in the first paragraph of Appendix A in language which indicates that the diet program features the use of a grapefruit pill that enables overweight people to easily and quickly become slim, trim and attractive "while still eating almost as much as you want."

The basis for the use of the language in the charge that appears as No. 5 in the Complaint is the same as that stated for charge 4.

Charge 6 is based on language that appears on Appendix 2A under the caption, "Absolutely safe. No side effects."

With respect to charge 7, the source of the language which forms the basis of this charge is stated in the Complaint.

The language which forms the basis for charge 8 appears on the reverse side of Appendix 2 under the caption, "Eliminates water buildup."

The language that forms the basis for charge 9 appears on the reverse side of Appendix 2 under the caption, "Counteracts hunger."

The source of the language which forms the basis of charges Nos. 10 and 11 is cited under those charges of the Complaint.

In determining whether the Respondent makes the representations which are set forth in the Complaint, there must be kept in mind the rule in regard to the interpretation of advertising material which is found in the case of Donaldson v. Read Magazine , 333 U.S. 178, where the Supreme Court of the United States said that the effect of advertising material is to be determined by the impact of such advertising material upon persons of ordinary minds.

In other cases that average reader, who has been referred to at times in this proceeding as "John Q", has been described as "unwary and unsuspecting"; "Those who are trusting"; and, "The ignorant and unthinking and the credulous." That description is found in the case of Charles of the Ritz v. Federal Trade Commission , reported at 143 F.2d 676.

It has been pointed out in the course of this proceeding, and it is stated again, that the purpose of the Postal misrepresentation statute is not to punish the person who makes the misrepresentation, but it is to protect persons who may be victimized by such misrepresentations.

Keeping in mind the foregoing criteria, it is found that the Respondent does make the representations which are set forth above and quoted from the Complaint.

There remains to be decided the last issue; namely, whether the representations found to have been made by the Respondent are materially false, as a matter of fact. In this connection there appeared as a witness for the Complainant Dr. Ernst J. Drenick who, in terms of his education and training and experience, is well qualified to testify in the area of medicine which is involved in this proceeding.

Dr. Drenick is an internist who has specialized in the fields of nutrition and metabolic disorders. Dr. Drenick is the Chief of the General Medical Section of the Veterans Administration Hospital in West Los Angeles, and he is a Professor at Los Angeles. He treats patients who are obese. he conducts research in the field of obesity and he keeps up with the literature that is published in this field.

Dr. Drenick defined obesity as an excess of body fat, and he expounded on this answer by saying that if a person accumulates 15 to 20 percent more fat over the ideal weight, the person is considered to be obese.

The cause of this obesity is the excess of caloric intake over the caloric expenditure.

The treatment of choice, and based on the testimony that has been presented today, the only treatment that is effective, exclusive of surgery or some debilitating disease, is the taking of steps which will produce a negative caloric balance in the individual. The way of achieving this objective is to educate the person to a greater activity level and to the reformation of his eating habits.

With respect to the ingredients in Respondent's product, Dr. Drenick testified that Vitamin E has no known effects on weight loss, and the same is true with respect to Vitamin C, sodium carboxymethylcellulose, freeze-dried whole grapefruit powder and whole grapefruit powder. Of course, the excipients and binders in the product are there simply as the vehicles by which the ingredients are compounded and held together.

On the label of this product there is a statement which reads as follows:

"No need for sodium carboxymethylcellulose or grapefruit powder in human nutrition has been established, and no dietary claims are made."

The person who orders and receives this product and takes it is told, on the label, to take one or two tablets before each meal with a glass of water, coffee or tea without cream, sweetened artificially if desired.

Dr. Drenick conducted a very interesting test with this product in which he, himself, took two of the pills 30 minutes before a meal. Within a couple of minutes after he took the pills as directed he had an X-ray of his stomach taken, and it showed very clearly that his stomach was approximately two-thirds full. Thirty minutes later another X-ray was taken of Dr. Drenick's stomach and there was nothing in the stomach except in the folds thereof. From the X-ray it could clearly be seen that the barium with which the product has been taken had moved from the stomach into the intestine, and the stomach again was empty except for the few traces of barium that remained in the folds of the stomach. There was nothing in the stomach to distend it.

Dr. Drenick testified that in view of the fact that 30 minutes after the product was taken the stomach was as empty as it had been 30 minutes or more before the product was taken, there is no way in which the taking of this product could serve to decrease the hunger of the person taking the product.

Dr. Drenick testified, also, that in order to lose one pound of fat tissue the person must have a net decrease of about 3700 calories.

There is testimony by the medical expert that the average diet of the average obese woman is from 2200 to 2400 calories per day. Now, if this average obese woman who has been pictures takes the diet and the pill as directed, she will ingest 1200 calories so that her decrease for that day will be 1,000 or 1,200 calories. At this rate of caloric deficit it will require approximately four days for this woman to lose a pound.

Comparable information with regard to the average obese male is that he consumes from 3000 to 3500 calories per day. If he follows the program of the Respondent he will reduce his caloric intake to such an extent that it will take him from two to three days to lose a pound.

The claims for losses heretofore found to have been promised by the Respondent in charges 1 and 2 of the Complaint are physiological impossibilities. Specifically, it will be impossible for a man or a woman who follows the program being sold by the Respondent to lose ten pounds in ten days, 18 pounds in two weeks, or a pound a day.

Reference has been made earlier to the fact that this pill which was being sold by the Respondent in conjunction with the program is represented as playing an important role in the efficacy of this product. The medical testimony in this case is to the effect that this pill has no effect whatsoever in terms of weight loss.

On several occasions Dr. Drenick pointed out the inconsistency between the instructions to the purchaser; to follow the regimen recommended by the Respondent, on one hand, and, then, on the other hand, to eat as much or almost as much of certain foods as he wants. Those two sets of directions simply cannot be followed with any hope of success in a reducing program. They are simply incompatible and irreconcilably so.

There is some testimony that under certain somewhat rare circumstances these pills are not absolutely 100 percent safe for all individuals. I am not particularly persuaded, however, by the claim of danger that may arise from taking these pills.

It is clear from the testimony in this case and, I think, it is almost a matter of which official notice can be taken that the following of any diet which calls for a restricted caloric intake requires the exercise of willpower. It was pointed out by counsel for the Respondent that when one goes to a physician and is placed upon a restricted diet, he is told to take whatever medications are recommended and to follow the restricted diet, but come back in three weeks. The purpose of coming back in three weeks is to see to it that the man has his willpower boosted and bolstered by the physician. It isn't really necessary in terms of the actual effect of the diet and the medication that the patient return to visit his doctor at the end of three weeks, so it can only be for the psychological help that the doctor gives to the patient.

According to the testimony of record in this proceeding, there is nothing in this product that would create or bring about a diuretic affect.

Since there is nothing in the diet pill that causes any reduction in weight, and in view of the statistics which have been previously given with respect to the length of time that will be required for the average obese woman and the average obese man to lose a pound of weight, it follows that, clearly, the user of the Respondent's product will not experience a measurable and detectable loss of weight after one pill and one meal.

There is insufficient evidence in the record to support a finding of falsity as to the last charge in the Complaint.

In this closing argument, Respondent's Counsel has raised some points which require some comment.

He argued that there was no testimony from any complaining witness that he was deceived, and that is quite true; but it is also equally true that there was testimony from the owner, the sole owner, of the Respondent that she does receive requests for refunds from dissatisfied customers.

Respondent's Counsel urged that the American people, the American public, is accustomed to seeing statements that this or that product is the most beautiful, loveliest and the most functional and the public is used to having other qualities of that type ascribed to different products, or used in connection with different products.

That point is true to a certain extent but it is also true that there is a line that must be drawn between puffing statements of the type that counsel mentioned and statements which contain material misrepresentations of facts, such as are found in the advertising material used by this Respondent. One example of the latter is the reference in the advertising material to the presence of a diuretic in the product when, in fact, there is nothing in the product that serves as a diuretic. Further, it certainly goes far beyond the realm of puffing to indicate that a person, man or woman, would lose ten pounds in ten days or 18 pounds in two weeks or a pound a day. As previously indicated, these are physiological impossibilities and to represent that they occur, and to represent it in a way that might even mislead a more sophisticated reader, is certainly not to be condoned or permitted or classified as puffing.

There was no medical testimony in this case, except that which was presented by the Complainant. That being so, there is ample foundation for finding that the statements made in these charges, with the exception of charges Nos. 6 and 11 are false, as matters of material fact. ( U.S. Health Club v. Major , 292 F.2d 665, CA 3, 1961)

In view of the foregoing considerations, it is concluded that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails within the meaning of Section 3005 of Title 39, United States Code.

Counsel for the parties have presented proposed findings of fact and conclusions of law. To the extent indicated herein, these proposed findings of fact and conclusions of law are adopted. Otherwise, such proposed findings and conclusions are rejected for the reasons stated, or because they are contrary to or unsupported by the evidence in this case, or because they are immaterial.

Having found and concluded as previously indicated, it follows that an order of the type provided by Section 3005 of Title 39, United States Code, should be issued against this Respondent.

____________________

1/ Transcribed from oral decision as rendered at close of hearing held April 12, 1975. Minor language changes have been made, but the substance of the decision is unchanged.