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;

APPEARANCES:
Lee H. Harter, Esq.
James J. Robertson, Esq.
Law Department
U. S. Postal Service
Washington, D.C. 20260
for Complainant

Sheldon S. Lustigman, Esq.
Bass & Ullman
747 Third Avenue
New York, New York 10017
for Respondent

POSTAL SERVICE DECISION

This proceeding is before the undersigned on Respondent's appeal from the Initial Decision of Chief Administrative Law Judge William A. Duvall concluding that Respondent was engaged in conducting a scheme or device for obtaining money through the mails by means of false representations within the meaning of Section 3005 of Title 39, United States Code.

The Complaint, as amended, contained sixteen allegations of materially false representations in Respondent's advertising. Three of these were withdrawn by Complainant (Charges 7, 11 and 13) and two were resolved against the Complainant (Charges 1 and 10) leaving in issue whether Respondent made the following eleven allegedly false representations:

"(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;

* * * * *

"(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;

* * * * *

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

* * * * *

"(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 indentical 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.'"

Respondent takes exception to the direct and implicit findings and conclusions of the Chief Administrative Law Judge on these remaining eleven allegations, in some instances on the issue of whether the alleged representation was in fact made and in some instances on the issue of whether it was materially false. Respondent also takes exception to the Initial Decision's recommended scope of the § 3005 order insofar as it includes "Betty Weider's, Dept., Beauty and Figure Aids" and to the disposition, on page 3, of Respondent's argument concerning the failure of the Postal Service to bring action against a competitor.

The Initial Decision appended certain advertising material pertinent to the charges. For purposes of convenience in reference and since the exceptions relate in great part to this advertising, the Appendix to the Initial Decision is also attached to this final agency decision.

Depending upon which advertisement is viewed the item being merchandised here is called by various names: "Iso-Tensor Bustline Increase", "Instant Bustline Increaser", "Iso Tensor Plan", "Total Bustline Improvement Plan" (Appendix A); "Lady Bountiful Iso-Tensor", "Danish Bustline Increaser-Firmer-Shaper", "Total Bustline Improvement Plan" (Appendix B), "Iso Tensor Plan", "Total Bustline Increaser Plan" (Appendix C), "Beauty Bustline Persuader" (Appendix D).

The physical product being sold is a spring tension high resistance exercise device, illustrated on Appendix D over the advertisement for "Beauty Bustline Persuader". Along with the "Iso Tensor" the purchaser receives a foldout brochure illustrating a series of ten exercises, six of which are performed with the "Iso-Tensor". The others, such as one described as "Floor Dips", which appears to be a pushup exercise, do not require the "Iso-Tensor" device. The brochure also advises that gaining or losing weight "whichever is necessary in your case" will help the individual realize her fullest bustline potential and footnotes this advice with the information on where to write to Betty Weider to obtain free booklets on gaining, or losing, weight.

Respondent's first and perhaps most important exception is to the finding that Respondent's advertising directly or indirectly falsely represents that the user will experience an increase in her breast size as alleged in Charge 2 above. Each party produced qualified medical doctors as expert witnesses who agreed that the use of the "Iso-Tensor" device will have no effect on the size of the female breast (Tr. 24-26, 126) although exercise may increase the circumference of the trunk at the nipple line by increasing certain muscles along the line of the measurement. The two major muscles affected would be the pectoralis major and the latissimus dorsi muscles. The pectoralis major muscle is the large chest muscle which forms the platform for the breasts. Respondent's medical expert testified that the greatest increase in mass could be expected from the pectoralis major muscle but that the latissimus dorsi muscle increase, because of its location, would have the greater effect on contributing to the increase in circumferential, or bustline, measurement (Tr. 331, 337). The latissimus dorsi muscle is a muscle of the back and side. That the user's projected bustline increase would be due in large part to enlargement of her back muscles is a fact indiscernable from Respondent's advertising. Similarly, the fact that the female breast may increase in size due to adding weight by increased caloric intake is irrelevant to the advertising in Appendices A and B. The purchaser only learns of this aspect after the purchase. Mention of the diet plan is made in the Appendix C advertisement with the promise of an increase in breast size. However, Respondent's own medical expert testified that the breasts are the parts of the body that are most stable with relation to the amount of fat deposits (Tr. 130) and, therefore, least likely to increase with an increase of total body fat. The fact that improved posture may result from the exercises or that an increase in the underlying pectoralis major muscle, by adding thickness to the chest, may tend to flatten out any concave area in the upper breast does not equate to an increase in breast size. Respondent contends that the advertisements are not misleading and points to a consumer marketing study, in evidence as Respondent's Exhibit (RX) 3, conducted especially for Respondent, which shows that 88% of the women interviewed after viewing the advertisement appearing as Appendix C hereto, would measure the "bustline" as the total body circumference at the nipple line. The other choices available to the subjects of the interviews were to circle one of three other figure outlines showing a circumferential line above the breast, a circumferential line below the breast and a figure showing no line as such but illustrating the brassiere cups. The latter figure was chosen by 6.7% of the women interviewed. However, it is not where the bustline measurement is to be taken but whether the reader of the advertisements might reasonably expect an increase in the size of her breasts that is at issue in this charge. Respondent contends that its advertising makes no representation, direct or implied, about increasing the size of the breasts and takes issue with what it terms the "amorphous assumption" of Judge Duvall "that 'the photographic matter' and the 'language employed' is so presented as to 'emphasize their breasts'. (I.D. 14)." One need only refer to the appendices hereto to see that the finding of Judge Duvall was not based upon any vague assumption but is in fact compelled by the evidence. The pictoral representations along with terms such as "fuller," "deeper," "lovelier and more beautiful proportions," "total bustline," "Lady Bountiful," "full natural beauty--the way nature intended" are a masterpiece of misdirection if the end result is essentially better posture and larger trunk muscles leaving the small breasted woman still small breasted. Is the prospective purchaser viewing, for example, Appendix B hereto, not reasonably entitled to believe that her purchaser may produce for her something akin to the very prominent display evidenced in the photograph?

Applying the test of Donaldson v. Read Magazine, 333 U.S. 178, 179 (1948), there is no doubt but that the representation alleged in Charge 2 above is made in Respondent's advertising.

Far from departing from ordinary common sense or indulging in flights of fancy as Respondent suggests would be necessary (Brief p. 10) the average reader would have to be blind not to reach the same conclusion. The application of Gottlieb v. Schaffer, 141 F.Supp. 7, 16 (S.D. N.Y. 1956), to the protection of "the gullible and the simple . . . even though they do not reach the level of the ordinary mind" is not necessary to uphold the result in this case. That the representation is false is clear from the record and there is no question about its being material and substantial.

Respondent's next exception is to the finding that Charges 3 and 14 above are materially false, namely, that the user will experience a detectable and measurable increase in her bustline after just 10 seconds' use (Charge 3) or 60 seconds' use (Charge 14). The Initial Decision rightly concludes that either period of time would not produce any permanent increase in the bustline measurement or breast size. Respondent contends that the evidence reflects that a temporary effect would be obtained by such limited exercise and that the Complaint does not allege, nor does the advertising represent, that the results after taking the 10 or 60 second test are permanent. Respondent's expert testified that even the 10 second exercise would result in the temporary hardening and thickening of the muscle and also the sense of tension in the muscle area which would continue for a period after the exercise stopped (Tr. 92-94, 118). ^1/ Complainant, in its Reply Brief, while not contesting that a temporary change in the underlying muscle being exercised, may take place, contends that the finding of material falsity is justified on the basis justified on the basis that the 10 and 60 second tests are "come-ons" to the false representation of breast size increase and also to the later charges of alleged false representation regarding the amount of the increase to be expected in bustline measurement.

"Q Do you believe it is possible for a woman to pick up the Iso-Tensor device and use it for 60 seconds and to see a detectable and measurable increase in her bustline?

"A Yes, with these qualifications, if I may, you Honor. Beauty is in the eyes of the beholder and if a woman buys a new dress, she feels she looks prettier. If we do exercises to make ourselves feel stronger, we usually look better that first day.

"This is a part of our wonderful self-deception that keeps us happier than may be we have a right to be but so, therefore, there is a very subjective kind of assessment on the part of the woman who is looking to see her breasts change and hoping to see them change.

"She has invested in this to do this and if she does something, she is apt to see things that might not be there.

"Q After 60 seconds' use, will this be detectable and measurable using Iso-Tape measure?

"A Within 60 seconds, with her consciousness of what she is trying to realize through this device and exercise and so on, she may well be holding herself in a much more elegant posture, which would improve her appearance. But the bustline itself, the breasts would not be any different." (Tr. 27-28).

On the surface Respondent's exception has two points in its favor. The Complaint does not use the word "permanent" in Charges 3 and 14 and the evidence does indicate that there can be a very temporary thickening of the muscle causing a sensation of tension and a slight increase in measurement. However, the lack of the word "permanent" does not render the charge invalid if the implication of permanence is present. I so find. Moreover, there is no increase whatsoever, temporary or otherwise, in the female breast size and it is impossible to separate the glaring "10 Second" test in Appendices A and B from the overall representation, already found false, of breast size increase. As I view it this adds to the misrepresentation in Charge 2 since in these two advertisements the guarantee of a money back refund within three days is quite obviously related to the 10 second test which only further serves to convince the purchaser that her dream of a fuller bosom is beginning to come true.

Respondent's next three exceptions, concerning Charges 4, 5 and 6 above, will be taken up together in view of the approach taken by the parties in their briefs on appeal. Charge 4 is the representation that the user of Respondent's product will experience firming and shaping of her total bustline. I agree with Judge Duvall that the "total bustline" here necessarily includes the breasts. Charge 5 is the representation that the user will experience her breasts becoming fuller and shapelier. Charge 6 is the representation that the product will recontour the breast and produce larger, more beautifully proportioned breasts. Respondent contends that findings of material falsity cannot be sustained. It makes two introductory arguments. The first is that the findings of falsity are inconsistent with the finding of fact in the Initial Decision that the user of Respondent's product will experience an increase in her total bustline. I do not see it that way. The total bustline measurement may increase without producing the results represented in Charges 4, 5 and 6 as they now stand.

The second argument relates to certain concessions made by Complainant in its Reply Brief. The first concession is with respect to Charge 5. Complainant has made a motion, hereby granted, to amend the Complaint to conform to the proof and drop from this charge the words "and shapelier" leaving only the alleged false representation of the breasts becoming "fuller". ^2/ It bases this on the testimony of Respondent's medical expert that the change in shape of the underlying muscles would reduce any concavity in the upper chest (Tr. 126, 127).

The second concession is with respect to Charge 6. However, on this point Complainant's Reply Brief introduces some confusion on its position. The paragraph heading appears to be a concession on failure of proof on the complete charge. However, the full statement of the position immediately following that heading concedes only that some "recontouring" is possible but still denies any possibility of increase in the size of the breast. ^3/ Respondent's characterization (Answer to Reply Brief, page 2) of this as a concession that the product will recontour the breasts and produce larger, more beautifully proportioned breasts understandably interprets the concession in the broader sense as indicated in the bold print paragraph headline. However, the statement in the body of the argument is consistent with the remainder of the brief and is thus taken as the true concession but were it otherwise it would not be accepted as it is contrary to all the proof. The record is clear that the breasts do not become larger except for the possible increase in size due to an increase in body weight and this latter possibility does not render the representations truthful for the reasons previously discussed above.

Dr. Sjostrand testified that by increasing the bulk of the pectoralis muscle, a woman would fill out the concavity immediately above the breast, reshaping slightly, its appearance (Tr. 126-27, cf. Tr. 99). Thus, some 'recontouring' is possible, but with this concession, Complainant reiterates its position that Respondent's program will not increase the size of the breast." (Reply Brief, p. 27)

Respondent's contentions on the merits cite certain testimony to establish the truth of the representations. I have reviewed this testimony along with the rest of the testimony and for the reasons given do not agree. Respondent states (Brief, p. 21) that Complainant's medical expert "declined to have any expertise on the effect of the product on the breasts and would only venture a guess (Tr. 22, 23)." The testimony at page 22 was related not to the breasts as such but the expected increase in total bustline measurement in the normal person using an optimal muscle-strengthening program. At page 23 he testified that there would be no basis for assuming any change in the breast tissue in such a program apart from whatever might occur due to an increase in caloric consumption. Likewise the testimony of Respondent's medical expert (Tr. 88, 126) regarding growth and firmness of the pectoralis muscles does not relate to any firming of the breasts as such. The testimony of Respondent's two user witnesses (Tr. 342, 374) that they felt their breasts were firmer after using the product was rightly discounted by Judge Duvall as contrary to the medical testimony.

Respondent's argument on the merits regarding the breasts becoming "fuller" or "larger, more beautifully proportioned breasts" rests on testimony of improved posture (Tr. 86), increased thickness of the pectoralis major muscle (Tr. 89, 128) and filling out with muscle any concave area in the upper chest (Tr. 98, 99, 126, 127). That these results will affect physical appearances is not in doubt but neither is the fact, as I view the record, that the user will not experience her breasts becoming firmer, fuller or larger and more beautifully proportioned.

Respondent attributes (Brief, p. 5) to Complainant's medical expert the testimony that if bustline means total circumference "the bustline would become fuller and shapelier (Tr. 26)". If anything the testimony is the opposite. With respect to Charge 8 that the user can experience the represented increase in her bustline and/or breast size without the necessity of altering her caloric intake, Respondent contends there is no basis for upholding that charge. Complainant responds that the representation is one of omission from Appendices A and B where diet is not mentioned and the purchaser first finds out about this part of the plan after she has made her purchase. While the bustline measurement may be increased without an increase in caloric intake the same is not true for an increase in breast size. Therefore this charge, insofar as it relates to breast size, is clearly established on the record.

Respondent's next exceptions are to the findings that it falsely represented that its product will produce an increase in a user's bustline of 3-1/4 inches after just 21 days (Charge 9) and an increase of 2 inches after just 14 days (Charge 12). These two charges have been treated by the parties as relating solely to the amount of the increase in measurements. Respondent correctly states that the only advertisement where the 3-1/4 inch increase is mentioned is Appendix A. It contends (Brief, p. 28) that the 3-1/4 inch result portrayed therein is not held out as a promise to purchasers but merely "sets forth the measurements of that one subject, Janette Couper". To adopt such a construction would, I believe, ignore the reality of the advertisement's own emphasis upon this one individual in promoting Respondent's product. If this is not something the prospective purchaser viewing this advertisement can believe will also happen to her if she makes the purchase, why show it? Certainly, the advertisement with its words like "Amazing", "Incredible", "Instant", "revolutionary new" and "miraculously" give no indication that the pictoral result and heralded increase are but an isolated example.

Regarding the truth of the representation in Charge 9 Respondent contends that since the advertisement also refers, under the "after" picture to the Iso-Tensor "course", and in the body of the advertisement, to the "Bustline increaser and shaper plan" and "Instant Iso-Tensor Plan", that the diet must be considered as part of the "course" or "plan". The trouble with this is that the purchaser is not told this at the time of purchase. Even the most careful reading of the entire advertisement does not give the reader the impression that diet rather than the "revolutionary new instant Bustline Increaser" is the trick. The whole thrust of the advertisement is to the Bustline Increaser which she is to take "in your hands--stand in front of your mirroe. USE IT."

Respondent also contends (Brief, p. 28) that its medical expert "Dr. Sjostrand felt that such a 3-1/4 inch gain would be likely in three weeks (Tr. 91)". "Likely" appears unduly strong when the cited testimony ^4/ is read. Moreover, it is obvious that in adding "all favorable factors on top of each other to get that figure" the gaining of weight is an important element. The representation in Charge 9 is materially false.

With respect to the Charge 12 allegation of a bustline increase of 2 inches in 14 days, Respondent contends that the words "up to" negate the representation of any positive 2-inch increase. The advertisements in question here are Appendices B and C. The addition of words "up to" are no disclaimer of results otherwise reasonably impressed upon the mind of the reader when the advertisement as a whole is considered. See Weider Distributors, Inc., P.S. Docket No. 3/23 (1974). While the box in the middle of Appendix C listing certain test results,

"A. That is, of course, impossible, on theoretical grounds to say exactly how much but if you think of that one and a half or two inches would be something that is possible without gaining weight.

"Well, you have to add all favorable factors on top of each other to get to that figure. That is a very high figure but I think that is only something that you can determine only by exact determination of a study.

"Theoretically, you cannot rule out or support the figure.

"Q. Theoretically, you cannot rule out or support it. I do not follow it.

"Would it depend on how much weight was gained? Is that what you are saying?

"A. Yes, of course." (Tr. 91) none of which show a 2-inch increase, might raise a question, the description adjacent thereto which explains that this test was conducted "under the most difficult conditions", along with the mention of the 2-inch increase four separate times in the advertisement, once without the limiting "up to" language, all tend to impress upon the mind of the reader that 2 inches would be normal. Respondent cites Jarvis v. Shackelton Inhaler Co., 136 F.2d 116 (6th Cir. 1943), Pinkus v. Walker, 61 F.Supp. 610 (D.C. N.J. (1945), Pinkus v. Reilly, 170 F.2d 786 (3rd Cir. 1948), Reilly v. Pinkus, 338 U.S. 269 (1949) and Jeffries v. Olesen, 121 F.Supp. 463, 473 (S.D. Cal. 1954) in support of the proposition that its money-back guarantee means that the product will not work for some users. As I read these cases, and others cited by Complainant, ^5/ they do not raise Respondent's guarantee of a money-back refund to the level of negating the representations alleged to be false in this case. In the Pinkus cases cited by Respondent, while the lower court referred to the money-back guarantee as evidence that the product was not a universal remedy the United States Supreme Court, on review, had no difficulty in concluding that there was sufficient evidence upon which to base a finding of material misrepresentation, 338 U.S. 261 at 274-275. I consider appropriate here the conclusion of the court in G. J. Howard, cited in footnote 5, supra, that "in the instant case it was correct for the Post Office Department to find that the plaintiff could not erase the illegal taint of its conduct by its 'money back' guarantee". Moreover, note that as to the advertisements in Appendices A and B the guarantee is of three day duration and is statedly related to results from taking the "10 Second Test". As earlier pointed out in my findings on Charge 2 the purchaser who experiences the temporary muscle tension resulting from these tests may be even further lulled into the belief that its all beginning to happen to her and thus the refund offer becomes part of the deception rather than a warning that the results are not to be expected.

The truth or falsity of the 2-inch, 14-day representation is another matter. Complainant's medical expert, while not professing any expertise in knowing how much an optimal muscle strengthening program would increase the total measurement, estimated one inch would be maximum over a three month period (Tr. 22, 24, 67). Respondent's medical expert testified, based on his experience "of doing weight work, it is a reasonable thing that you can increase 6 to 10 per cent in muscle strength within a two week period. I think it is not unreasonable but I think this is something where you have to rely on actual measurements to get the final answer" (Tr. 87-88). The question upon which this testimony was based included the assumption of thickening of the muscles and of improved posture and was preceded by a series of questions (Tr. 86-87) regarding the effect of improved posture. Assuming, however, that his testimony regarding increased muscle strength is unrelated to posture and a 6% muscle increase was achieved by the average woman following Respondent's program, the subject would have to start out with a 33-1/3 inch bustline measurement to achieve the 2-inch increase.

The improbability of this 2-inch muscle increase from following Respondent's program is evidenced further by the results of the study prepared for Respondent by Fitness Institute Limited (RX 1), which will be discussed in greater detail in connection with Charges 15 and 16, where a more strenuous exercise program was conducted (Tr. 161-162) than that set forth in the brochure purchases of Respondent's product receive, and the results were markedly below the 2-inch mark. I have reviewed the testimony of the three user witnesses who were paid to participate in the program and personally measured by Respondent Joe Weider and find in unconvincing. The sum of the evidence supports the finding of falsity as to Charge 12.

Respondent takes exception to Judge Duvall's permitting the Complaint to be amended to include the allegations of Charges 15 and 16, which deal with the study conducted by Fitness Institute Limited and the advertisement which is Appendix C hereto. The motion was made to amend the Complaint after the Complainant had rested its case and upon completion of cross-examination of the author of the study who was Respondent's witness (Tr. 192). However, both this witness and Respondent's medical expert were available and did in fact testify the following day of the hearing. There has been no showing of prejudice to Respondent and Judge Duvall's ruling was properly within the scope of the Rules of Practice governing amendment of pleadings.

Charge 15 is that Respondent represents that the documented results in the Appendix C advertisement were obtained under conditions identical or substantially similar to those to be followed by the purchaser. In the brochure which the purchaser receives when she buys the "Iso Tensor" she is told to start with "no more than 2 crushes to each exercise". A "crush" is one repetition with the "Iso Tensor" device. She is also instructed to add one extra crush every other exercise day until she is doing 12 "crushes" per exercise. ^6/ She is then told to add a second full set of 12 "crushes" "starting with two crushes and gradually increasing the number to 12 for the second set" and then to add a third set the same way until she can do 36 "crushes". She is also told to do the exercises at least once a day and at least 4 times weekly but that "daily exercise brings top results and twice daily brings the ultimate in bust-beautifying results" (CX 8).

The Fitness Institute Limited report (RX 1) is the basis for the claims made in Appendix C (Tr. 160-161). The instructions received from Mr. Weider regarding the test were to assemble 10 young ladies of small to medium bust and put them on a 14-day program with the stipulation that they do three sets of 12 repetitions beginning with the first day and that they should be kept strongly motivated to make sure they follow through (Tr. 161-162). The report states the subjects were instructed to perform the entire program twice each day, once under the supervision of the Fitness Institute and once at home (RX 1, p. 4). The author of the report who witnessed the subjects exercising the first day testified that they did not do all 12 repetitions that day and he doubted it was likely they could exert maximum effort to start (Tr. 201). While initially testifying that a woman doing three sets of 12 repetitions would in all likelihood achieve a greater increase in measurements than one performing only 2 crushes (Tr. 186), he later explained that maximum force with 2 crushes would produce better results than lesser effort with 12 repetitions (Tr. 204). Complainant's medical witness considered this "conceivable" (Tr. 48, 49). Respondent's medical witness first testified that there would be a greater effect with the greater repetitions (Tr. 199, 123) but on the second day of testimony explained that depending on pressure exerted by the subject the two repetitions could be as effective as twelve (Tr. 320, 329). He added that "the general experience of weight lifters was that they gain more working with a number of repetitions up to 8 or 10 repetitions" (Tr. 329). Viewing the total testimony, the instructions given to the Fitness Institute by Respondent and Respondent's own instructions in the exercise brochure there appears little doubt that the greater number of repetitions is considered by all concerned to be the more effective program and the one which will produce the better results.

Respondent contends that the advertisement makes no representation that the documented test results shown therein were obtained under conditions identical or substantially similar to those to be followed by the purchaser of Respondent's product. The advertisement proclaims "Documented Proof of amazing results with the Iso Tensor Plan". These results are graphically represented in the box to the left of the claim. The natural and normal conclusion would be that the plan is the same one the purchaser will use. In fact, it was not.

Charge 16 is to

Respondent also takes exception to the finding in the Initial Decision that Respondent solicited remittances by means of false representations under the name "Betty Weider's Dept. Beauty and Figure Aids". The inclusion of this Respondent is based upon Appendix D hereto which was included with the product when shipped to the purchaser. Respondent contends that "It is most unlikely that any purchaser of Respondent's product would seek to reorder the same product by virtue of this post sale stuffer or, if they did, would be misled by any of the representations therein" (Brief, p. 39). The Appendix D promotion makes the claim that the Beauty Bustline Persuader "Assures a fuller, deeper and higher bustline in just five minutes a day". It includes an order form soliciting remittances to the name referenced above at addresses in Beverly Hills, California, and Montreal, Canada. It is sent through the mails. Respondent contends that the failure to identify this advertising material in the Complaint filed in this case precludes adding this Respondent, and the failure to introduce proof that Appendix D was sent out with other products compel dismissal. I disagree. The solicitation is no less a solicitation because the purchaser has already made one purchase. The likelihood of her using the form to make another purchase or giving it to a third person for that purpose is not in issue. When sent with the product purchased in response to Appendices A, B or C and using the "fuller, deeper" langauge it can definitely serve the purpose of obtaining an order for the product. There is no basis to assume that the original deception of the purchaser would be cleared up before the form was put to use. Our Rules of Practice provide for conforming the pleadings to the evidence. As I view it, the evidence establishes that Betty Weider's, Dept. Beauty and Figure Aids at P. O. Box 3725, Beverly Hills, CA 90212 or 2875 Bates Road, Montreal, Canada, is properly a

Respondent against whom the recommended mail stop order should apply.

Respondent raises as its final point of error in the Initial Decision the failure to find relevancy to this proceeding of action taken, or not taken, by the Postal Service in connection with a competitor of Respondent, Mark Eden. Judge Duvall's holding on page 3 of the Initial Decision that the only matter properly before him was the issue of whether the subject Respondent violated the statute, was manifestly correct and consistent with the holding in Beauti-Breast of Paris, P.S.Docket No. 1/140 (March 1975). The purpose of this administrative proceeding is to determine whether, on the evidence presented, a violation of 39 U.S.C. § 3005 exists in the case at bar. The Mark Eden decision in P.O.D. Docket No. 2/204 is not determinative of the issues in the case before us. Nor is the fact that the Judicial Officer Department does not have docketed any Complaint regarding current advertising by that firm. Even assuming that such advertising was violative of the law and assuming further that no separate and distinct legal defenses were available to that company, assumptions that could only be established as fact by a trial on the merits, the unfairness Respondent speaks of would not be against it but against the public and would present no valid excuse for its own violation of the law. It would be disruptive of the whole administrative process to require the trial of separate cases to be merged at the insistence of a Respondent in such actions or, in the alternative, to excuse a statutory violation on the basis that a Complaint has not been instituted against a competitor.

All of Respondent's exceptions to the Initial Decision have been considered and are hereby denied. It is my conclusion that the alleged representations were in fact made by Respondent and that they are all materially and substantially false. Accordingly, I am issuing, contemporaneously with this decision, an appropriate order under 39 U.S.C. § 3005.

05/23/75

Lussier, Edward F.

____________________

1/ In further support of its contention, Respondent alleges (Brief, p. 19) that Complainant's expert "testified that with a ten-second use of the device, one is able to see a detectable and measurable increase, and that the user looks better the first day (Tr. 27)." I do not read the testimony, the sum total of which follows, as supporting that summary.

2/ With respect to Charge 5, Respondent argues that any finding of material falsity is erroneous but points out that the Initial Decision makes no specific reference to this particular charge in the findings. Adverse findings on the breasts becoming fuller are contained on page 22 of the Initial Decision and also on page 25. Although no specific reference is made to Charge 5, I consider it obvious that the failure to mention it was an oversight. Even if the failure to make certain findings were construed as a recommended dismissal of Charge 5, such an implied recommendation would be rejected on the basis of my independent review of the evidence.

3/ "COMPLAINANT CONCEDES THAT IT HAS FAILED TO CARRY THE BURDEN OF PROOF IN ESTABLISHING THE FALSITY OF THE REPRESENTATION THAT RESPONDENT'S PRODUCT WILL RECONTOUR THE USER'S BREAST AND PRODUCE LARGER, MORE BEAUTIFULLY PROPORTIONED BREASTS, COMPLAINT, PARAGRAPH V(6).

4/ "Q. Now, Doctor Sjostrand, if a woman were to use this device for 3 weeks and exercised as directed and, in addition, were to gain weight, which she needed to gain, could such a person, - or is it likely that such a person could have an overall increased measurement of three and one-quarter inches in 3 weeks?

5/ Harris v. Rosenberger, 145 F. 449, 455 (8th Cir. 1906), cert. den. 203 U.S. 591; Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir. 1939), cert. den. 308 U.S. 587; G. J. Howard Co. v. Cassidy, 162 F.Supp. 568, 572-573 (E.D. N.Y. 1958); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F.Supp. 746, 751 (S.D. N.Y. 1959). All of the cases cited by both parties on this point arose under the prior postal statute which required proof of intent to defraud. In 1968 Congress amended the statute so that proof of scienter is no longer necessary and the validity of that amendment has been upheld. See Lynch v. Blount, 330 F.Supp. 689 (1971), aff'd 404 U.S. 1007.

6/ At this rate of increase a daily user would not reach one full set of twelve repetitions until the end of three weeks' use.