In the Matter of the Complaint Against

SKINNY SUIT at
Terminal Annex, Vox 60969,
Los Angeles, California 90060 and
Box 100649,
Atlanta, Georgia 30348 and
Box 124,
Tarzana, California 91356

and

SKINNY SUIT and/or A.B.C. BEAUTY, INC. at
Box 80035,
Atlanta, Georgia 30341

P.S. Docket No. 3/44

August 6, 1975

William A. Duvall Chief Administrative Law Judge

Daniel S. Greenberg, Esq.,
Law Department, United States Postal Service,
Washington, D. C., for Complainant

Anthony Michael Glassman, Esq.,
Miller, Glassman & Browning,
360 North Bedford Drive,
Beverly Hills, California, for Respondent

INITIAL DECISION
HISTORY OF THE PROCEEDING

This proceeding was initiated by the filing, on May 17, 1974, of a Complaint by the Consumer Protection Office of the Law Department, United States Postal Service (Complainant) against Skinny Suit and A.B.C. Beauty, Inc., (hereinafter referred to collectively as "Respondent") at various addresses in Los Angeles, Tarzana and Beverly Hills, California (Complaint later withdrawn as to the latter address), and in Atlanta, Georgia. The Complainant charged Respondent with 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.

An Answer to the Complaint was filed on June 6, 1974, on behalf of Respondent in which it was admitted that Respondent solicits remittances of money through the mails by means of advertisements appearing in publications of nationwide circulation; that advertisements attached to the Complaint as Exhibits A, B and C thereto (Exhibits A and B to the Complaint are attached hereto as Appendices A and B to this Initial Decision) are employed by Respondent to attract attention to its business; that such advertisements are typical of those used by Respondent; and that Respondent offers for sale through the mail a product called the "Skinny-Suit" (hereinafter sometimes called "the product" or "the garment"). In the Answer Respondent averred that the specific charges in the Complaint are unwarranted characterizations of the language in the advertisements and Respondent, otherwise, denied the allegations of the specifically charged representations and Respondent denied, also, that the specifically alleged representations are materially false as a matter of fact.

The matter came on for hearing before the undersigned at a hearing held, at Respondent's request, in Los Angeles, California, on August 8 and 9, 1974. Both parties appeared by Counsel who participated in the examination and cross-examination of witnesses and who have filed Proposed Findings of Fact, Conclusions of Law and Argument in Support thereof, the latter of which was filed on October 11, 1974.

THE ALLEGED REPRESENTATIONS

The specific representations which Complainant charged Respondent with making, and which were alleged to be both material and false are the following:^1/

"(1) That the use of Respondents' product can cause a loss of 6-9 inches from its user's hips, tummy, waistline and thighs after just three days;"

(2) That the user of Respondents' product can accomplish the losses described in sub-paragraph (1) without the necessity of restricting caloric intake or engaging in a physical exercise program;

(3) That Respondents' product is a new innovation;

(4) That Respondents' product lifts, firms and rounds the user's derriere and trims flabby midriff bulge;

(5) That Respondents' product was developed after 8 years of experimentation employing over 200,000 persons;

(6) That Respondents' product will be delivered to the purchaser in a reasonable period of time;

(7) That user's of Respondents' product can lose 16 inches and more from their hips, waistline, tummy and thighs after just three days use;

(8) That Respondents' product is not adjustable but is sized to fit the purchaser;

(9) That the simple wearing of Respondents' product produces the results described in subparagraphs (1), (4) and (7)."

THE USE OF THE MAILS

By its admissions in the Answer to the Complaint, Respondent concedes that in the sale of its product it causes advertisements to appear in widely disseminated publications, and that by this means it solicits remittances of money through the mail.

DOES RESPONDENT MAKE THE REPRESENTATIONS
REMAINING IN THE COMPLAINT

For quicker disposition of the question as to whether Respondent makes the representations set forth, and remaining, in the Complaint, the following tabulation is presented:

Representation              Specific Language in Indicated Appendix ^2/

         (1             A - "Skinny-Suit reduces you instantly...then -
                                lose 6-9 inches from your hips, tummy,
                                waistline and thighs in just 3 days-without
                                diet-or your money back]"
                          B - "We do unconditionally guarantee that you
                                will lose 6-9 inches from your hips, tummy,
                                waistline and thighs in just 3 days - or
                                your money back]"
 (2) and (9)        A - Language, above, in respect to lack of
                                necessity to diet.
                          B - "How does it work? You're inches trimmer,
                                inches slimmer the second you slip on your
                                "Skinny Suit'. It reduces you even faster
                                 with your own everyday activities."
         (3)            A - "NEW] SKINNY-SUIT"
                          B - "'SKINNY-SUIT' is a brand new way]"

Representation             Specific Language in Indicated Appendix

         (4)            A - "***Skinny-Suit lifts, firms and rounds your
                                derriere, trims flabby midriff."
                          B - Substantially the same language as quoted,
                                immediately above, from Appendix A.
         (7)            B - "***So many women attain 'instant inch loss'
                                with 'Skinny-Suit.' Then go on to lose 16
                                inches or even more from hips, waistline,
                                tummy and thighs in just 3 days."

It is patent from the above tabulations that no exercise in interpretation is required to determine that Respondent makes the representations remaining in the Complaint.

THE TRUTH OR FALSITY OF RESPONDENTS' REPRESENTATIONS

The Skinny-Suit is a non-porous, seamless, constrictive, latex-like garment which covers the area from under the bustline to a point just above the knees. The theory of the Respondent is that the garment causes fat to be displaced for an extended period of time, and that this happy result is enhanced by 91) the exercise program (mentioned only obscurely in the advertising material) and (2) the heat generated and retained by the device and the exercises. Patrons were put, also, on high-protein/low carbohydrate diets, a feature nowhere mentioned in Respondents' advertisements.

Mrs. Wanda Barney, the owner of the Respondent, in 1961 operated an exercise and weight-reduction salon in Santa Maria, California, under a franchise granted by the Eileen Feather Salon. Based on conversations with women patrons, she began to work with various belts and garments for the purpose of taking inches from the waistline, hips and thighs. From these efforts the Skinny-Suit in its present form evolved. (Tr. 228-234)

The device later was used by Mrs. Barney and her associates in a "special control program" that was given once a week, once every 2 or 3 weeks, or once a month to patrons who were taking the regular courses at the salon in Santa Maria and in salons which were operated at other locations.

Mrs. Barney supervised the measuring of the women and she was assisted by Mrs. Betty Phillips. Mrs. Barney used the device and she testified that she experienced an accumulated loss of 5 1/4 inches from the waist, hips and thighs. When other women followed the Skinny-Suit program, the witness stated that losses ranged between 3-4 inches to 11-12 inches, with more obese persons experiencing greater inch losses than those persons not so obese. (Tr. 235-237) Over the course of a number of years, Mrs. Barney operated salons in as many as ten or eleven locations, in each of which the "special control program", involving the use of the Skinny-Suit, was followed. She estimated that she supervised or assisted in measuring thousands of women participants in the program, all of whom lost "inches in the waist, tummy, hips and thighs." (Tr. 244)^3/

The 'program" achieved great popular acclaim, and some of the women took it four or five times and many participants brought in their friends to take it. Usually, the measurements were taken immediately before and after engaging in the "program", but in, perhaps, dozens of occasions, the measurements were taken the next day, after a weekend, or the next time the patron came to the salon. (Tr. 250) On many occasions, the patrons measured themselves (Tr. 251) and they would indicate that they could wear clothes that previously had been too tight for them. (Tr. 252)

In 1968, Respondent's program was investigated by the Attorney General of the State of California because of some of the claims made for the "program" in terms of inch loss. A representative

Respondent was enjoined, generally, from making representations that any specific number of inches could be lost in a specific period of time and from making any false or misleading statements relating to its business. (Tr. 261, 352, Ex. R-D.)

On cross-examination, Mrs. Barney stated that she did not know at what time of day the subjects were measured, nor when, nor whether, they had been to the bathroom at the time they were measured. (Tr. 314-315) Some of the persons who submitted favorable affidavits were paid the cost of the notary fees, plus another Skinny-Suit or its cash equivalent. (Tr. 323) Mrs.Barney does not think that everyone will lose 6 to 9 inches in the waist, tummy, hips and thighs by using the Skinny-Suit, (Tr 327) but she believes that all people with excessive girth can achieve those results, although she has run no tests to determine if the mere wearing of the Skinny-Suit, without exercising, will produce the results claimed by Respondent. (Tr. 333)

Mrs. Betty Phillips, who worked with Mrs. Barney in various salons for a number of years, gave testimony which generally corroborated that of Mrs. Barney in such matters as the conception and production of the suit, the number of women who used the "special control program" and the results thereby achieved. In her own case, Mrs. Phillips never took her own measurements a day or two after wearing the suit and performing the exercises, hence she did not know what such measurements would have disclosed. (Tr. 390)

There were two lay witnesses who testified as to their use of the Skinny-Suit and the "special control program." Their testimony was unenlightening. For a wide variety of reasons, measurements of the girth taken with a tape measure by anyone - particularly non-trained, non-professional persons, are unreliable and inaccurate.

There was also testimony of Maurice Roy, who was employed by Mrs. Barney for a number of years at her salons, and who maintained records of the measurements of some of the patrons. He stated that during the period of his employment he measured three women 24 hours after they had completed the "special control program" and that in the case of these women the inch losses present at the close of the program were still evidence 24 hours later. Mr. Roy described the exercise program in which all of Mrs. Barney's "special control program" patrons engaged. Mr. Roy measured a number of patrons immediately before and after they performed the exercises and he recorded the results of these measurements. All of the patrons in the "special control program" were regular patrons of Mrs. Barney's salons and the regular program incorporated exercises as well as diet restrictions. (Tr. 220, 222) Mr. Roy's system of taking measurements was unscientific and the results thereby produced are open to serious questions.

Respondent's last witness was Brian Whipp, Ph.D., whose testimony will be discussed later in this decision.

Dr. Ernest J. Drenick, a doctor of medicine whose distinguished qualifications are set forth in Ex. C-7, was called by Complainant to testify in this matter. Dr. Drenick is a Diplomate of the American Board of Internal Medicine and he has had a special interest in the fields of nutrition and metabolism, particularly in the area of obesity.

Dr. Drenick pointed out that excessive weight is caused by the intake of more calories than the body expends, with the excess being stored as fat, the greatest amount of which will be deposited around the middle of the body, causing the girth to be increased. To reduce excessive girth, the medical profession employs a combination of diet and exercise, each of which is appropriate to the individual patient.

The Skinny-Suit will have a temporary effect in reducing the girth of an individual, but it will not cause any fat loss. (Tr. 36) The girth loss will be caused by displacement of tissue fluids, displacement of intestinal contents and expulsion of gas. (Tr. 73) The addition of the exercise program advocated by Respondent, which is a very moderate program, would not be conducive to any significant loss of fat. The wearing of the garment would not increase the temperature of the body as a whole, nor would it increase the metabolic rate. Because it is an insulating area, however, it would permit the temperature of the core of the body, which is normally higher than skin temperature, to gradually penetrate outward and heat up the skin. This action would not cause either the loss of fat or the reduction of girth. (Tr. 36-38)

Dr. Drenick stated categorically that the wearing of the Skinny-Suit might cause a temporary six-inch loss from the user's hips, tummy, waistline and thighs in three days, but it absolutely would not cause a six-inch diminution as a result of fat loss. (Tr. 41) The garment may lift a sagging derriere temporarily, but it certainly will not firm or round the area in question. The lifting effect would last until the garment is removed. Dr. Drenick did not know whether the garment being sold by Respondent represents an innovation. While the exercises may cause a conditioning of the muscles, this improvement would not in any way be assisted by the garment. (Tr. 41-44) The tissue fluids that would be displaced by the garment would be redistributed to their normal locations in the course of from one-half hour to three hours. (Tr. 74) There would be no accumulative reducing effect from wearing the Skinny-Suit on two or three consecutive days. (Tr. 75) It is very difficult to arrive at reliable measurements using a measuring tape and no accurate, reliable and scientific measurements can be obtained except by people specially trained for that purpose. (Tr. 76)

Insofar as heat and perspiration are concerned, the wearing of the Skinny-Suit will give the appearance of increasing the water loss, because, since the water can not evaporate, it will accumulate. The appearance will be that water is condensing under the garment. Actually, if such a garment is worn, the body will put out less water than it ordinarily does. Without the garment water evaporates or gets soaked into clothing so that it is not seen. Under such a garment, the body quickly adapts and puts out less water which has less chance to evaporate. (Tr. 82) The Skinny-Suit is a garment that is at room temperature, and the only thing that will happen is that the temperature from the inner portions of the body gradually extends to the skin, which then will be nearer the temperature of the inner part of the body, but it will still be the ordinarily normal 98.6 degree body temperature. What the wearer perceives as heat is simply the nerve endings being exposed to a higher temperature than that to which they are accustomed. (Tr. 83)

Any fluid lost by sweating will cause a loss of weight, but this weight loss will not be localized to the area under the Skinny-Suit. Furthermore, the fluid lost by sweating, and its attendant weight loss, will be replaced when one, as he must, drinks liquids.

Some of the tissue fluid that is displaced by the constrictive force of the garment would be forced into areas not covered by the garment, such as, for example, the lower thigh area. In this and similar areas, there would be an increase in circumference which to some extent would offset the inch loss occurring in the area covered by the garment. Some of the fluid so displaced would go into the pelvic or cheat areas where, for various reasons, the increased circumference would not be detectable, or it would be less detectable. (Tr. 96-98)

The exercise periods of Respondent's program total about one hour per week, do not include what is regarded as a medically significant exercise program, and they would play only "a very minor part" in terms of fat-loss. (Tr. 117)

The final witness for the Complainant was Dr. Robert L. Swezey, M.D., F.A.C.P., whose extensive and impressive curriculum vitae was introduced as Exhibit C-8. Dr. Swezey, at the time of the hearing, was a Professor of Internal Medicine at the University of Southern California, Los Angeles. he has a subspecialty in rheumatology, which encompasses arthritic disorders in general, and, he has, also, a specialization in Physician Medicine and Rehabilitation. He is Board certified in both Internal Medicine and in Physical Medicine.

On the subject of losing weight, Dr. Swezey said that one may use a combination of diet and exercise, but the key to weight reduction, as a practical matter, is dietary control. (Tr. 122)

With respect to the exercises in Respondent's program, set forth in Exhibit C-6, those that might have some effect on reducing the girth would be those that would strengthen the abdominal muscles, specifically, the one called the "tummy toner" in which the person lies flat on the floor and raises his legs. The wearing of the Skinny-Suit all day would have an adverse effect on the condition of the stomach muscles because one tends to use less than normal the muscles that are being supported by a corset. There is, therefore, less stimulus to the muscles, resulting in a weakening of the muscles. Wearing the garment 20 minutes or so per day, or while Respondent's exercises are being performed as directed, would have no measurable effect. (Tr. 125)

In some persons, the wearing of the Skinny-Suit would cause enough compression to produce a nine-inch, total, reduction in the sum of the measurements of thighs, the waist and the tummy, but the original girth measurements will return soon after the garment is removed. (Tr. 146) He said that Dr. Drenick's estimate of one-half to three hours for the time in which displaced fluids would return to their normal locations, and his own estimate of one-half to one hour, are, both, reasonable approximations. (Tr. 153) If a person performed the exercises a sufficient number of days in a row, one could expect some strengthening of the abdominal muscles, but the wearing of the garment while exercising would produce no additional muscular strength. (Tr. 128)

As to whether the Skinny-Suit is an innovation, the witness was not certain, and his answer necessarily was inconclusive.

Since the changes in weight that would result from Respondent's exercises would be negligible, or very slight, the amount of change that one could anticipate in the buttocks area would be negligible, but it is possible there might be some slight alteration in the tone of the muscles that would improve their appearance. The effect of the addition of Skinny-Suit would be that, while the garment was worn, the compression of fat around those tissues would be of such a nature as to "make things less" *** "but once the garment was removed, they would go back to their previous condition." (Tr. 130, 146)

On cross-examination Dr. Swezey stated that fluids displaced by the Skinny-Suit would return in one-half to one hour. (Tr. 140) He repeated that the results of exercising in conjunction with the suit would be no different than exercise without the suit. The suit would not cause any resistance that would be beneficial in strengthening muscles. (Tr. 143)

Dr. Swezey concurred in the view, formerly expressed by Dr. Drenick, that the garment could cause skin temperature to rise to the body's core temperature, but that, in itself, it would not in any way create a different temperature in the muscles, although it would help the muscle to relax.

A person will tend to perspire under the suit as much as elsewhere. The wearing of the garment would not increase one's perspiration rate, but if one does the exercises he will perspire, generally, assuming he exercises vigorously enough to cause any perspiration. If sufficient perspiration occurs, there will be a temporary measurable weight loss until the fluid in the body is replenished. On the other hand, the Skinny-Suit might inhibit perspiration, but perspiration would accumulate more under the garment. (Tr. 156-159)

The Skinny-Suit will not cause an increase in muscle temperature because its effect will be a superficial kind of heating which would penetrate only a few millimeters below the surface of the skin. The heat, therefore, would not reach the muscles. Thus, there would be no caloric expenditure due to increased muscle temperature such as would be experienced with the use of shortwave diathermy and ultrasound devices.

When asked whether the wearing of the Skinny-Suit would increase the strenuousness of the exercises, Dr. Swezey replied in the negative. The lever arm of the suit, as opposed to the full length of the leg is such that the suit would present a very minimal, although some, resistance. The amount of resistance provided by the garment, as opposed to lifting the weight of the leg would be relatively insignificant, probably of no consequence. (Tr. 170-171)

There remains to be considered only the testimony of the expert witness called by Respondent, Dr. Brian J. Whipp. Dr. Whipp obtained his Ph.D. in physiology at Stanford University in 1967. His qualifications in his field, also, are notable and outstanding. At the time of the hearing, he was an Associate Professor of both physiology and medicine. His particular areas of research interest are the control of breathing and the energetics of exercise.

Dr. Whipp's testimony is found far more often to be in agreement with that of Dr. Drenick and Dr. Swezey than it is at odds with their testimony. Some illustrations of this statement are:

1. After the garment is removed, the configuration of the body "would very rapidly return to its position, original condition." (Tr. 443)

2. Respondent's exercises would cause some strengthening of the stomach muscles, and some reduction in weight from all parts of the body, both of which, together, could cause some reduction in girth. The addition of the wearing of the garment, because it provides so little resistance, measurable only by special equipment capable of discriminating measurements, might case a loss of only "a couple of pounds, a few pounds" in from 3 to 6 months above that produced by the exercises without the use of the garment. (Tr. 446-447)

3. Tissue fluid is moved by constriction of the garment into areas of the body not covered by the garment. These uncovered areas would have larger circumferences for the time they contain the fluids. When the garment is removed, these tissue fluids will return to their normal locations in a matter of minutes. (Tr. 450-452)

4. Concerning the strenuousness of the exercises, Dr. Whipp said that walking at a comfortable pace on a level street causes a 400 per cent increase in one's rate of metabolism as compared to the individual's metabolic rate while he is at bed rest. A highly trained athlete can achieve a twenty-four-fold metabolic rate increase. Respondent's bicycle-riding exercises, followed as directed, on the other hand, would produce only a 300 per cent increase, and that "is not much of an increase in this spectrum of potential increase." (Tr. 417-422)

5. The core temperature of the body is 37 degrees Centigrade. Muscles at rest are 34-35 degrees Centigrade and, under strenuous exercise, they go up to 36-38 degrees. Heat in the muscles is dissipated to some extent by the circulation of the blood. Some heat under the garment would be dissipated by sweating at parts of the body not covered by the garment. The body would compensate to a considerable degree - perhaps as much as 75 per cent - for the increased heat in areas covered by the Skinny-Suit. (Tr. 424-427)

Despite the agreement indicated by the discussion under item 5, above, there was one possible conflict between the testimony of Dr. Whipp with the testimony of Drs. Drenick and Swezey, and this was with respect to the question of whether, and if so by how much, the wearing of the Skinny-Suit would raise the temperature of the skin and muscles in the area under the suit.

It will be recalled that Drs. Drenick and Swezey gave it as their opinion that since the Skinny-Suit could not generate heat, but could only contain it, the heat under the garment would not rise above the normal core temperature, which usually is 98.6 degrees Fahrenheit.

Dr. Whipp stated that if the temperature of the muscles under the suit is increased 1 degree Centigrade, there would be an 8 per cent increase in the rate of metabolism. As an illustration, he said that under this hypothesis the metabolism rate produced by the bicycle-riding exercise, which is about 300 per cent of the bed-rest rate, would be increased to about 320 per cent. Dr. Whipp frankly stated, however, that he did not know how much of an increase of temperature under the garment would occur, but he said it could be "maybe half a degree." (Tr. 424) He later said that this estimate is a "guess." (Tr. 440) It must be pointed out also that Dr. Whipp estimated certain metabolic rate increase if the temperature of the muscles (not the skin surface) is increased by the wearing of the garment. Dr. Whipp never made a positive statement that the muscles in the area under the garment would be heated above core temperature.

The "possible conflict" scarcely rises to that level in view of Dr. Whipp's characterization of the possible temperature rise under the garment, but the point is mentioned to show that even in areas in which there is not complete unanimity in the testimony of the experts, the difference, if any, is so slight as to be negligible.

The testimony of the highly qualified experts testifying at the call of both parties to this proceeding has established beyond cavil that the use as directed of Respondent's product, including the Skinny-Suit and the exercise program, do not and can not produce the results promised for them in Respondent's advertising literature. The only charge remaining in the Complaint with respect to which Complainant failed to sustain its burden of proof is the charge that Respondent's product is an innovation. Except as to this charge, the competent, credible evidence in this record establishes that the charges remaining in the Complaint are material and they are unquestionably false.

CONCLUSION OF LAW

Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations contrary to the provisions of 39 U. S. Code 3005.

An Order substantially in the form attached, as provided by 39 U. S. Code 3005, should be issued against this Respondent.

Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered. To the extent herein indicated such proposed findings of fact and conclusions of law are adopted. Otherwise, such proposed findings of fact and conclusions of law are rejected as being contrary to or unsupported by the evidence, or because they are immaterial.

____________________

1/ In its Proposed Findings and Conclusions, Complainant withdrew charges (5), (6) and (8)."

2/ The specific language quoted is not the only language that could be used as the basis for the various charges. In addition, the tenor of the advertisements, taken as a whole, conveys the impression embodied in the representations.

3/ She estimated the number of women to be from 150,000 to 300,000 of the Attorney General's office was sent, incognito except to Mrs. Barney, to the salon where she observed the program and she noted the results of the measurements taken at the start, and at the conclusion, of the session which she observed. After this investigation, Respondent executed a Stipulation for Consent Judgment and Final Judgment containing certain agreements, but Respondent was not required to discontinue the "special control program."