In the Matter of the Complaint Against

NUTRI-DIET,
22028 Ventura Boulevard at
Woodland Hills, California 91364

and

E-PLUS DIET,
18588 Ventura Boulevard at
Tarzana, California 91356

P.S. Docket No. 3/74

February 24, 1975

Rudolf Sobernheim Administrative Law Judge

APPEARANCES: Lee H. Harter, Esq.
Consumer Protection Office
Law Department U.S. Postal Service
Washington, D.C. 20260 for Complainant

Richard M. Crane, Esq.
9595 Wilshire Boulevard
Beverly Hills, California 90212 for Respondents/>

INITIAL DECISION

This is a proceeding by Complainant against Respondent NUTRI-DIET and E-PLUS DIET, whom Complainant seeks to add as party respondent in this proceeding, under 39 U.S. Code 3005 which authorizes action against Respondent upon evidence satisfactory to the Postal Service that Respondent is "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations."

Complainant alleges that Respondent NUTRI-DIET and E-PLUS DIET are engaged in such a scheme through the sale of a modified diet and all-vitamin (plus E) tablets and Respondent NUTRI-DIET also through the sale of a diet plan and multi-vitamin (plus E) tablets.

Specifically, Complainant in its complaint alleges that by the use of advertisements Respondent NUTRI-DIET represents in substance and effect:

"A. that the effective cause of weight loss in Respondent's product is the 'All-Vitamin Tablet', not caloric restriction;

B. that Respondent's product contains ingredients in sufficient doses to 'eliminate hunger pangs';

C. that Respondent's product contains ingredients in sufficient doses to 'curb and control the appetite';

D. (withdrawn by Complainant in post-hearing brief, p. 10)

E. that the use of Respondent's product requires little or not willpower to lose weight; e.g., 'easy and healthy weight loss...' (emphasis supplied)

F. that the ingredients in Respondent's product are 'new.'" and that such representations are false (Complaint, Par. III, IV).

In its answer to the complaint Respondent NUTRI-DIET admitted the use of the advertisement, a copy of which Complainant had attached to the complaint, and the receipt of money through the mail from purchasers of its diet and tablets in response to the advertisement.

It limited its admission that it made the representations alleged in the complaint to those which could be reasonably inferred from its advertisement and denied that the representations made by it were false.

Subsequent to the hearing held herein, at which both parties offered evidence, and to the filing of briefs Complainant moved to amend the complaint to include E-PLUS-DIET, 18588 Ventura Boulevard at Tarzana, California 91356, as a party respondent. Complainant in support of its motion attached thereto as documentary evidence copies of (i) an advertisement of E-PLUS DIET, identical in text (but for the headline and mailing address) with Respondent's NUTRI-DIET previously mentioned advertisement, published in the National Enquirer of 12 November 1974; (ii) a post office box application showing that the box to which purchasers are directed to send money and mail in response to the E-PLUS DIET advertisement was opened in the name of Milton Kalman who signed the answer filed by Respondent NUTRI-DIET in this proceeding; (iii) the label of the bottle of tablets received by a postal inspector in response to a test mailing, identical (except for the number of tablets sold0 with that on the bottle received by the same postal inspector in response to the test mailing addressed by him to Respondent NUTRI-DIET (Compl. Ex. 3); and (iv) the original diet folder received by the inspector in response to his test mailing to E-PLUS DIET which is identical in content and appearance with the folder received by him in response to his original test mailing to Respondent NUTRI-DIET (Compl. Ex. 4).

Respondent opposes Complainant's motion to add E-PLUS DIET as a party respondent on the ground that the difference in the headlines between the NUTRI-DIET and E-PLUS DIET inappropriate and argues that Complainant, assuming it prevailed against Respondent NUTRI-DIET, should then proceed against E-PLUS DIET as an evader of the NUTRI-DIET decision by way of supplemental order after a new hearing. The motion will be decided as part of this Initial Decision.

FINDINGS OF FACT

1. Milton Kalman is doing business under the name of NUTRI-DIET at 22028 Ventura Boulevard, Woodland Hills, California 91364, and under the name of E-PLUS DIET at 18588 Ventura Boulevard at Tarzana, California 91356.

2. Respondent NUTRI-DIET by the advertisement hereinbelow set forth solicits readers thereof to purchase from it, and receives from the purchasers money through the mails for "a copy of this successful diet and all-vitamins (plus E) tablets" for a ten to thirty day supply at prices ranging from $5.00 to $10.00. The advertisement (Compl. Ex. 1; Complt Ex. I) reads in full as follows:

"Lose Weight Fast With

New 'All-Vitamin' Tablet

Healthful New Discovery Stops Hunger Pangs Tablets

Contain All Daily Requirements + Vitamin-E

LOS ANGELES (Special) -- New scientific discoveries have produced an 'all vitamin' diet tablet that eliminates hunger pangs and prevents overeating. It quickly works wonders on overweight people and is gaining great popularity across the country with glowing reports of easy and healthy weight loss 'while eating almost as much as you want.'

Nutritionists' files are bulging with happy testimonials from formerly overweight people who are now trim and slim again. Those who use the new all-vitamin (plus E) diet tablet report that it is so effective you will lose weight the very first day and keep on losing day after day until you reach your most attractive size -- without exercise or starvation. Scientists report that if you are lacking even one essential vitamin or nutrient you will experience pangs by supplying your body with ALL the right vitamins, minerals and nutrients on a daily basis,' states Dr. Roger Johnson, world renowned nutritionist.

The new chewable diet tablet, taken before each meal, contains ALL THE DAILY REQUIREMENTS of vitamins, minerals and nutrients PLUS vitamin E and other ingredients that help curb and control the appetite. It also acts as an aid to all-around good health and energy. Best of all, you can still eat almost as much as you want of the 'forbidden foods' like steak, chicken, fish, sauces, gravies, bacon & eggs and still lose weight.

NOW AVAILABLE

To get a copy of this successful modified diet and all-vitamins (plus E) tablets, send $5.00 for 10 day supply (or $7.00 for 20 day supply or $10.00 for 30 day supply) to: NUTRI-DIET, Dept. NE. 22028 Ventura Blvd., Woodland Hills, Cal. 91364 (money-back guarantee)."

3. Another advertisement by Respondent NUTRI DIET (Compl. Ex. 2) advertises like tablets and diet under the heading "Lose Weight Fast With New Multi-Vitamin Tablet" and with subheadings in the text "Stop Hunger Pangs" and "All Daily Requirements" and substituting "multi-vitamin" for "all vitamin" but otherwise with the same text as the advertisement (Compl. Ex. 1), set forth in Finding of Fact No. 2.

4. E-PLUS DIET also solicits readers of its advertisement (Compl. Mot., Ex. 1) to purchase from it, and receives from its purchasers money through the mails for, a "successful modified diet and all-vitamins (plus E) tablets," which are in fact the same diet and tablets sold by Respondent NUTRI-DIET. The advertisement of E-PLUS DIET follows the text of the first advertisement of Respondent NUTRI-DIET (Compl. Ex. 1) except for the substitution of E-PLUS DIET and its address for the name and address of NUTRI-DIET and a new headline reading as follows:

"Lose Ugly Fat Easily With

New Vitamin 'E-Plus' Diet"

5. Complainant has alleged that Respondent NUTRI-DIET represents that:

(i) the vitamin tablets sold by Respondent are the effective cause of weight loss. The heading of the NUTRI-DIET advertisements clearly creates this impression in urging readers to lose weight with new all-vitamin or multi-vitamin tablet. The text also states that the vitamin diet tablet "prevents overeating" and "quickly works wonders on overweight people" and leads to loss of weight while eating "almost as much" or "almost as much *** of the forbidden foods' *** as the reader may want. By using such language Respondent NUTRI-DIET makes in fact to the ordinary reader the representations which paragraph III A of the complaint charges.

(ii) its product eliminates hunger pangs. The advertisement asserts in so many words that Respondent NUTRI-DIET's vitamin tablet "eliminates hunger pangs" by "supplying [the] body with ALL the right vitamins, minerals and nutrients on a daily basis." Hence, Respondent NUTRI-DIET makes the representation charged to it in paragraph III B of the complaint.

(iii) its product curbs and controls the appetite. Respondent NUTRI-DIET's advertisements state that its tablet contains all the daily requirements of vitamins and minerals "PLUS vitamin E and other ingredients that help curb and control the appetite." There can be no question that Respondent NUTRI-DIET makes specifically the representation charged in paragraph III C of the complaint.

(iv) use of its product requires little or no willpower to lose weight. Respondent NUTRI-DIET's advertisements speak of "easy" weight loss, promises weight loss "the very first day" and continuing "day after day", and holds out such results while the user of the tablets eats "almost as much" as he wants. These phrases interspersed throughout the advertise- ments lead an ordinary reader to believe that with the use of Respondent's part, that is: without the willpower normally required and commonly known to be required to lose weight. Hence, Respondent NUTRI-DIET in effect makes the representation charged in paragraph III E of the complaint.

(v) its vitamin tablet is "new". This statement made in the heading of the advertisements may be deemed to convey to the reader that Respondent NUTRI-DIET uses ingredients not heretofore used, hence "new", or uses known ingredients to an end to which they were heretofore not used, hence to a "new" purpose, or uses known ingredients in a "new" combination. Whichever interpretation Respondent NUTRI-DIET may have had in mind, all are conveyed to the ordinary reader whichever he may select. Hence, Respondent NUTRI-DIET makes the representation charged in paragraph III F of the complaint.

6. The E-PLUS DIET advertisement (Compl. Mot., Ex. 1) promises that ugly fat is lost "easily" with new vitamin "E-PLUS" diet. It emphasizes in the heading, more so than the advertisements of Respondent NUTRI-DIET, that the vitamin intake is combined with dieting. But it places, as these advertisements had not done, emphasis on vitamin E intake as the major operative factor. The remainder of the advertisement, unchanged in text from those used by Respondent NUTRI-DIET and offering the same tablets and diet folder, again leads the ordinary reader to believe that the tablets are a new product, controlling hunger pangs and curbing appetite, resulting in easy, immediate and rapid weight loss. The ordinary reader is plainly led to believe that the crux of E-PLUS DIET's offer is the tablets which allow the dieter to eat 'almost" as much as he or she wants and require no willpower or suffering to follow the diet. Hence, the E-PLUS DIET advertisement, notwithstanding slight verbal change, makes the same representations which paragraph III of the complaint charges.

7. "Each 3 Tablets" of Respondent NUTRI-DIET contain vitamins A, B-1, -2, -6, C and E, niacinamide, pantothenic acid and iron in quantities equal to or greater than the minimum daily adult requirement. No such requirement has, however, been established for vitamin E and three other substances in the tablets. The cited ingredients are contained in a base composed of sodium carboxymethylcellulose (hereinafter called "cellulose"), binders and excipients (Compl. Ex. 3; Compl. Mot., Ex. 3).

8. When dissolved in a solution simulating gastric fluid, the whole tablet, having a volume of 1.5 cc expands after 30 minutes (T 50) to 5 cc and the tablet, crushed to imitate the effect of chewing, expands to 7.5 cc (T 19, 21-22, 42; Compl. Ex. 5). The volume of 7.5 cc equals one and one-half teaspoonful (T 23). Although Respondent NUTRI-DIET recommends that before each meal the user should chew one or two tablets and drink a glass of water, coffee or tea (Compl. Ex. C-4) of an estimated volume of 250 cc (T 51), no test of the volume of the tablet or tablets, when taken with a glass of such fluids and added to the simulated stomach fluid was made (T 47). Respondent NUTRI-DIET's expert witness, a pharmacologist, testified that the tablets, chewed and taken with a glass of water gave the water the density of a glass of milk (T 134).

9. The reader of Respondent NUTRI-DIET's advertisement receives, as promised in the last paragraph thereof, not only the vitamin tablets but a flyer giving him two one-day sample diets, one of 1200, the other of 1500 calories (Compl. Ex. 4). The flyer also contains weight and calorie charts, "helpful suggestions" on dieting and exercise with diagrams of the latter and an extensive "plug" for Respondent NUTRI-DIET's "new combination multi-vitamin diet tablet that will help satisfy all *** minimum daily requirements of nutrients and thereby help prevent hunger pangs and overeating" (Compl. Ex. 4).

10. Both parties called expert witnesses to establish the falsity or defend the truth of the representations charged in the complaint to have been made by Respondent NUTRI-DIET in its advertisement and found to have been made (FF No. 5).

11. Complainant called as its witness the section chief for internal medicine at the V.A. Hospital in Los Angeles, California, who since 1955 was also a professor of medicine in the School of Medicine of the University of California at Los Angeles (Compl. Ex. 6). The witness, extensively educated in the United States and certified by the American Board of Internal Medicine in 1950 ( ibid .), is a member of professional societies specializing in the field of nutrition, a reviewer for professional journals and author or co-author of eighty papers, abstracts, chapters of books and other communications, many involving studies of obesity and its treatment ( ibid .). In sum, he is a highly qualified specialist in the field of nutrition and metabolic disorders (T 55 et seq .; Compl. Ex. 6).

12. a. This physician testified that obesity was caused by excess caloric intake which is stored by the body in the form of fat and that an excess intake of 20 to 30% amounted to obesity (T 58). The cure for obesity is to cut caloric intake or increase caloric consumption, i . e . to eat less and exercise more (T 58, 74). This requires willpower to carry through to permanent weight loss (T 71).

b. The 1200 calorie diet furnished by Respondent NUTRI-DIET to purchasers would lead to weight loss by everyone, though faster by men than women, but the 1500 calorie diet suggested by Respondent NUTRI-DIET in its flyer (Compl. Ex. 4) and also furnished to customers by E-PLUS DIET may not always cause weight loss, especially in middle-aged women only moderately overweight (T 60-62, 76). This basic theory of Complainant's medical expert witness as to the cause and cure of obesity was not contested by Respondent's expert witness (see Resp. Ex. 2, p. 1; cf . T 145).

13. The physician testified that suggestions in the flyer on diet and exercise are helpful and nothing therein would hurt the ordinary person (T 100 et seq .).

14. It was, however, the firm opinion of Complainant's medical expert that the tablets have no effect on weight loss whatsoever (T 62, 68, 79, 98, 107-108).

a. The normal American diet has enough vitamins and nutrients (T 97) and the diets outlines by Respondent NUTRI-DIET are well-balanced and do not lack required nutrients. Hence, consumption of extra vitamin tablets would add nothing to the dieter's health (T 62).

b. The tablets provide neither a suppressant for hunger pangs nor do they control appetite.

(i) The cellulose in the tablet which is made of ground plant fibers and has a laxative effect (T 63) provides about 7.5 cc of mass compared to a stomach capacity of 1500 to 2500 cc and provides for too little bulk to give a feeling of stomach fullness (T 64, 88). Moreover, such fullness would not suppress hunger pangs since the cellulose is not a nutrient (T 87-88). Nor does the addition of an 8-ounce glass of water increase a feeling of fullness in the stomach (T 64). The theory that drinking water before a meal cuts the appetite has been disproved (T 93): water intake before a meal does not cut the intake of food (T 95-96).

(ii) It is false to state that a person "lacking even one essential vitamin or nutrient" will "experience hunger pangs" (Compl. Ex. 1, 2). Alcoholics, for instance, who do not eat well and miss vitamins, nevertheless, do not feel hunger (T 70).

(iii) Appetite is a psychological desire for food which ingestion of vitamins increases rather than curtails (T 65) nor is any drug or substance known which would control appetite (T 91).

(iv) Moreover, even as a placebo the tablets sold by Respondent NUTRI-DIET would not be helpful for controlled studies have shown that patients are not fooled by them (T 118-119).

15. The physician testifying as Complainant's expert witness did not know of Roger Johnson, Ph.D., whom the advertisements of both Respondent NUTRI-DIET and E-PLUS DIET quote, or the Institute of Aging Research to which he holds himself out to be a professional dietary consultant (Resp. Ex. 2). He further testified that the key to Johnson's view lay in the following sentences ( id ., p. 7):

"If a low calorie diet simply contains less food, it will also provide less vitamins. Simply then, when a low calorie reducing diet is not supplemented with vitamins, etc., the body will adjust to this by burning less energy. No body fat will be burned. Alternatively, when vitamins are supplemented, the body burns more energy, and weight is lost." and added that Johnson's assertion was false since experiments had shown otherwise. In particular, studies made in 1969-71 by the Obesity Research project at the V.A. Center in Los Angeles which he directed, showed that the body burned fat even if no vitamins were contained in the diet (T 117).

16. Respondent did not call Roger Johnson as a witness on the ground that Johnson could not be available on the day of the hearing. No witness testifying at the hearing knew anything about the school from or the field in, which Johnson had obtained his Ph.D. or the institute with which he claims to be associated (see T 181).

17. It called as its witness a pharmacologist, originally trained in India who came to the United States in 1970 (T 125) and now works as a pharmacological consultant to medical centers in Kansas City, Missouri, and to hospitals at Santa Barbara, California. The witness described himself as seeking to establish a new specialty of medication therapist who accompanies the physician, to whom he is consultant, on his rounds and decides on the therapy to be used since he keeps up with the literature on therapies and medications which physicians find it more and more difficult to do (T 128-9, 177-8). Essentially, according to the witness, the physician would diagnose the patient and he would recommend to the physician the appropriate therapy (T 129) or, if the latter had outlined it on the patient's record, would proceed with the practical application of the physician's orders (T 130).

18. Respondent NUTRI-DIET's pharmacological expert witness testified that in his view, when one of the tablets sold by Respondent NUTRI-DIET was dissolved in a glass of water, the water became a fluid of greater density than ordinary water, more like a glass of milk and, hence, would be retained in the stomach longer than a plain glass of water (T 134 et seq .).

19. Cellulose is used in dieting to avoid a feeling of starvation (T 138) but the dense fluid formed by a chewed tablet dissolving in water, more like a glass of milk, would have "very little effect on hunger pangs" (T 154-155). Nevertheless, the witness concluded that he though that the tablet had "some effect" on reducing hunger pangs (T 155).

20. He termed himself "not a great proponent of vitamins" and did not recommend that most of "his" patients take them regularly (T 139). He believed that lower calorie diets required the body to produce its own carbohydrates (T 145-146) for which the body needed help from enzymes possibly of different character and in different quantities than provided by ordinary diets (T 146). He acknowledged that the possibility that low calorie diets did not produce adequate vitamins or enzymes and the quantum of the hypothetical shortfall were disputed but inclined toward believing such phenomenon likely because of the destruction of heat-sensitive vitamins in cooking (T 149). He concluded that if persons on low calorie diets lack vitamins they would be on the safe side to ingest additional vitamins and that Respondent NUTRI-DIET's tablets provided an adequate supplement (T 150-151, 183).

21. He testified further that many physicians felt such precaution appropriate and that out of 70 to 100 obese patients observed by him perhaps 40 to 60 were given regular multiple vitamin supplement tablets. He observed perhaps half a dozen physicians out of about twenty with whom he deals to prescribe such vitamin supplements (T 158-9, 160).

22. The vitamins in the tablets do not interact with the cellulose base (T 166).

23. On the basis of the detailed findings of fact made above and of the record as a whole I find:

a. The advertisements of Respondent NUTRI-DIET (Compl. Ex. 1, 2) will be understood by, and are making to, the ordinary reader the representations set forth in paragraph III of the complaint.

b. The advertisement of E-PLUS DIET makes to such ordinary readers the same representations as are made by Respondent NUTRI-DIET. The inclusion in the headline of the advertisement (Compl. Mot., Ex. 1) of the word "Diet" does not overcome for an ordinary reader the impression, created by the preceding reference to "Vitamin E" and the text of the advertisement as a whole, that the nub of E-PLUS DIET's weight-losing scheme and that which he or she pays for are vitamin tablets which make restricted food intake "almost" unnecessary and avoid the unpleasantness of the rigorous regimen which the E-PLUS DIET folder (Compl. Mot., Ex. 4) actually proposes.

c. Complainant's motion and Respondent's opposition raise no issues of fact which differentiate the representations made in the advertisements of Respondent NUTRI-DIET and those of E-PLUS DIET.

d. The representations made by Respondent NUTRI-DIET and by E-PLUS DIET in their respective advertisements are false in fact.

(i) Even on the basis of the evidence adduced by Respondent NUTRI-DIET the effective cause of any weight loss achieved by those who purchase the goods offered by it or by E-PLUS DIET is the observance for the necessary time of the low calorie diets which come with the vitamin tablets. Whatever the vitamin tablets accomplish, it is not weight reduction, effective reduction of hunger pangs or appetite control. Hence, the representation (Compl., par. III A) that the vitamin tablets are the effective cause of weight loss is false.

(ii) The testimony of Complainant's medical expert that a

7.5 cc mass of cellulose cannot fill up the stomach so as to avoid hunger pangs if thoroughly persuasive. The contrary assertion that, because the cellulose gives the water taken with it greater density, the denser liquid effectively reduces hunger pangs is far from convincing. But even the expert witness of Respondent NUTRI-DIET claims at mose "some" effect of the tablets on hunger pangs. That is a far cry from eliminating hunger pangs which according to the advertisements is the "trick". Hence, the representation (Compl., par. III B) that the tablets eliminate hunger pangs is false.

(iii) The testimony is plain that no drug or substance exists to curb appetite, the psychological appeal of food. The contrary representation (Compl., par. III C) that the tablets curb or control the appetite is unquestionably false.

(iv) The testimony leaves also no doubt that weight loss through dieting is hard for most people and requires a strong will to reach the desired result. Nothing in the testimony adduced by either party supports the view that ingestion of the tablets, as directed, makes weight loss easy and requires little or no self-restraint as the dieter can eat "almost" as much as he or she wants. It follows that the contrary representation (Compl., par. III E) that weight loss with the tablets sold by Respondent NUTRI-DIET or by E-PLUS DIET is easy is false.

(v) The vitamins, nutrients and cellulose are not new ingredients in the tablets which Respondent NUTRI-DIET and E-PLUS DIET sell. The record is bare of any evidence that any of these ingredients interact and affirmatively shows that the vitamins and cellulose do not interact. Hence, the representation (Compl., par. III F) that the ingredients in the tablets are new is false. It would be equally false, moreover, to represent that the tablets represent a new combination or interaction of their ingredients.

CONCLUSIONS OF LAW

1. Respondent NUTRI-DIET is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of 39 U. S. Code 3005.

2. E-PLUS DIET is engaged in a like scheme or device, involving the same product as that sold by Respondent NUTRI-DIET. As to adequacy of proof of product identity compare VITA-E-DIET , P.S. Docket Nos. 2/138 and 2/153 (Postal Service Decision 1975).

3. Complainant's motion to add E-PLUS DIET as party respondent is proper. See 39 CFR 952.12(c); see also id ., (d). No reason has been shown by Respondent NUTRI-DIET or on behalf of E-PLUS DIET why the granting of the motion would prejudice either or why it should otherwise not be granted. Complainant's motion shows that no genuine issues of fact exist which would prevent granting its motion and the opposing brief raises none. Hence, Complainant cannot be restricted to proceeding against E-PLUS DIET independently or upon application for supplemental order herein. Compare as to the latter procedure VITA-E DIET , supra . Accordingly, the motion to amend is granted and E-PLUS DIET added as party respondent herein.

4. The advertisements of Respondents will be understood by the ordinary reader to make the representations set forth in paragraph III of the complaint. See Donaldson v. Read Magazine , 333 U.S. 178, 189 (1948). They are false and materially so and greatly exceed such puffing as may be allowed by the authorities, all upholding Postal Service orders, cited in Respondent's brief. Institute for Weight Control, Inc. v. United States Postal Service , 348 F. Supp. 1304 (D.C.N.J. 1972); Baslee Products Corp. v. same , 356 F. Supp. 841 (D.C.N.J. 1973); united States v. Outpost Development Corp ., 369 F. Supp. 399 (C.D. Cal. 1973), aff'd 414 U.S. 1105 (1973); N. Van Dyne Advertising Agency, Inc. v. United States Postal Service , 371 F. Supp. 1373 (S.D.N.Y. 1974); see also United States Postal Service v. Kalman , F. Supp. (C.D. Cal. 1975). The use of clouding phrases, such as "almost", "helps to curb and control" or "Vitamin 'E-Plus Diet", does not overcome the impression created in the mind of the ordinary reader by the advertisements as a whole or by more strongly appealing or emphasized contrary language. As Respondent's brief (p. 2) correctly notes, "[i]t is also the law that very slight semantic shading of advertising representations will not deflect clearly deceptive representations."

5. Accordingly, an order in the form attached, as provided in 39 U. S. Code 3005, should be issued.