P.S. Docket No. 3/44
February 19, 1976
In the Matter of the Complaint Against
SKINNY SUIT
at Terminal Annex,
Box 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;
APPEARANCES: Anthony Michael Glassman, Esq.
Donald L. Saltzman, Esq.
Miller, Glassman & Browning
360 North Bedford Drive
Beverly Hills, California 90210
for Respondent
Daniel S. Greenberg, Esq.
Law Department
U. S. Postal Service
Washington, D.C. 20260
for Complainant
POSTAL SERVICE DECISION
The subject case is before the undersigned on appeal by the Respondents herein, Skinny Suit and/or A.B.C. Beauty, Inc., from the Initial Decision of Chief Administrative Law Judge William A. Duvall wherein it was held that Respondents were 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 United States Code § 3005. The proceedings were initially instituted by the filing of a Complaint by the Consumer Protection Office of the Law Department United States Postal Service, the Complainant herein. A hearing was held in accordance with the applicable Rules of Practice in Proceedings Relative to False Representation and Lottery Orders, 39 Code of Federal Regulations Part 952, Judge Duvall's decision issued and this appeal followed, all in accordance with the Rules of Practice.
The item, sold through the use of the mails by Respondents, which is the subject of the false representation charges is called a Skinny-Suit. It is described in the Initial Decision as "a non-porous, seamless, constrictive latex-like garment which covers the area from under the bustline to a point just above the knees." Although the Complaint initially included nine charges of advertising misrepresentation, Complainant later withdrew three of these (Charges 5, 6 and 8) and Judge Duvall found a fourth (Charge 3) unproven on the record. The remaining advertising representations charged in the Complaint, and found by Judge Duvall, to be both made by Respondents' advertising and materially false are:
"(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 scribed in sub-paragraph (1) without the necessity of restricting caloric intake or engaging in a physical exercise program;"
"(4) That Respondents' product lifts, firms and rounds the user's derriere and trims flabby midriff bulge;"
"(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;"
"(9) That the simple wearing of Respondents' product produces the results described in subparagraphs (1), (4) and (7)."
In their appeal from the Initial Decision Respondents do not take exception to the finding that their advertising makes the representations alleged in Charges (1), (4) and (7) of the Complaint, quoted above, but do take exception to the finding that their advertising makes the representations alleged in Charges (2) and (9). For ease of reference the two advertisements at issue are attached hereto as Exhibits A and B. Respondents draw attention to certain portions 1/ of the advertisements which they contend "make it clear that use of the Skinny Suit results in a more than temporary loss of inches only when used in conjunction with physical activity of some sort, be it normal everyday activities or the program outlined by the 'Skinny Sessions'" (appeal Brief, p. 11). This argument ignores the bold claim made in both advertisements "'Skinny-Suit' reduces you anywhere . . . any time . . . Every time you have it on]" The reference in the advertisements to "Skinny Sessions" without explanation as to what those might be, only promises "faster" results in conjunction with such sessions. If one were to assume that the "Skinny Sessions" involved some form of exercise it would all the more encourage the thought that merely wearing the Skinny-Suit would bring the promised results albeit not as quickly. The statement, relied upon by Respondents, that the Skinny-Suit reduces one "during your normal activities," negates, in this context, rather than emphasizes any necessity for physical exercise. I think it clear that the advertisements represent, in substance, that the results advertised can be achieved "without the necessity of restricting caloric intake or engaging in a physical exercise program" as charged in Complaint allegation (2). Likewise the charge in Complaint allegation (9) "that the simple wearing of Respondents' product produces the results described in subparagraphs (1), (4) and (7)" is also implicit in the advertising. Donaldson v. Read Magazine, 333 U.S. 178, 179 (1948). The truth or falsity of these representations is a separate matter, taken up later in this decision in considering Respondents' further exceptions to the Initial Decision. Respondents' threshold exception to the finding that their advertisements make these representations is disallowed.
Respondents' second exception is that the Initial Decision was in error for the reason that Complainant failed to meet its burden of proof by substantial evidence that any of the Respondents' representations are materially false. In so doing, Respondents have framed their appeal in what might be termed a general exception to the weight to be given to the testimony of Complainant's medical witnesses on the ground that they did not base their testimony on any actual testing of the product in question. In effect, Respondents' appeal takes exception to the conclusions drawn by Judge Duvall rather than to his specific findings of fact even though Respondents'overall review of the testimony in their appeal brief, is presented in a manner indicating Respondents' view that the record supports their advertising claims. The cases cited by Respondents in their appeal brief are not support for the proposition that medical opinion must be founded upon tests of the product to constitute substantial evidence of the falsity of the advertising claims. Respondents' principal citations are to Jeffries v. Olesen, 121 F.Supp. 463 (S.D. Cal. 1954); Atlanta Corporation v. Olesen, 124 F.Supp. 482 (S.D. Cal. 1954); United States Health Club v. Major, 182 F.Supp. 759 (D.C. N.J. 1960); and Fanning v. Williams, 174 F.2d 95 (9th Cir., 1949). Not only are all these cases clearly distinguishable from the present case on their facts but they all arose, and were decided, prior to the enactment in 1968 of the current false representation statute, 39 United States Code § 3005, which no longer requires proof of a knowing intent to defraud but only of material falsity of advertising claims. 2/
Respondents quote certain portions of the decision in Jeffries v. Olesen, supra, wherein the court held that the product there being sold through the mails was not misrepresented. However, the case did not turn on the issue of testing of the product but on the holding of the court that the Government interpretation of the advertising claims was "clearly erroneous" and the further finding that anyone mature enough to make use of the device being sold was qualified to judge its worth and no reasonable person would be misled by the advertising claims as interpreted by the court. As Complainant points out in its reply brief that case presents a factual situation which is a far cry from the instant case as evidenced by the detailed physiological explanation given by Respondents' medical witness in support of the efficacy of the Skinny-Suit. In Atlanta Corporation v. Olesen, supra, the decision of the court was based upon a lack of procedural due process depriving the seller of the product the right to testify on a matter directly affecting intent to defraud. While the court there made findings regarding divergent medical testimony, citing American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902) and Reilly v. Pinkus, 339 U.S. 269 (1949), it did not rest its decision on that basis. The District Court's observation, quoted by Respondents, as "interesting and relevant", that it would be more concerned if the device were harmful in its operation or involved a substance to be taken internally, may be interesting but it is certainly not relevant as there is no authority for restricting the application of the postal false representation statute to situation involving physical safety or internal consumption. What is more interesting as well as relevant is the fact that in Reilly v. Pinkus, supra, the Supreme Court although restraining enforcement of a fraud order for other reasons 3/ stated, at page 274, "But even if we assume that medical opinion is in a state of flux on this question (the value of a certain ingredient as a weight reducer) we think that there was sufficient evidence to support the findings that the efficacy of the 'Reducing Plan' as a whole was misrepresented in Respondents' advertising." It is to be noted that this case was before the Supreme Court on appeal from a decision of the Third Circuit Court of Appeals which had expressly found that:
"The proceedings in the Post Office Department do not disclose that any scientific test or research was made with the appellee's product or plan or that the opinions of the medical experts were funded upon the results of any such research or tests. On the contrary, the testimony of the medical experts at the hearing in the Post Office Department seems clearly to have been founded solely upon professional opinion based upon a general reading or authoritative textbooks and discussions with other members of the medical profession and indicates that with respect to the efficacy of appellee's product and plan there are two schools of thought, albeit one may be outmoded and fallacious in the opinion of a majority of the members of the medical profession." (Emphasis added) Pinkus v. Reilly, 170 F.2d 786 at 791
In discussing its earlier holding in American School of Magnetic Healing v. McAnnulty, supra, the Supreme Court in Reilly v. Pinkus, supra, clarified the earlier decision as follows:
"Important questions concerning the scope of the McAnnulty case and the sufficiency of evidence to support post office fraud orders prompted us to grant certiorari. First. It is contended here, as both courts below held, that the findings of the Postmaster General must be set aside under the rule of the McAnnulty case. There the Postmaster General had forbidden use of the mails upon finding as a fact that petitioner was guilty of falsehood and fraud in obtaining money by representations based on claims that the 'mind of the human race is largely responsible for its ills, . . . and that the human race does possess the innate power, through proper exercise of the faculty of the brain and mind, to largely control and remedy the ills that humanity is heir to . . . .' This Court set aside the fraud order, pointing out that there were two widely held schools of opinion as to whether the mind could affect bodily diseases, and that scientific knowledge had not advanced to the point where an actual intent to deceive could be attributed to one who asserted either opinion. Thus there was 'no exact standard of absolute truth by which to prove the assertion false and a fraud.' At best, testimony either way was held to be no more than 'opinion' in a field where imperfect knowledge made proof 'as of an ordinary fact' impossible. Respondent appears to argue that the McAnnulty case bars a finding of fraud whenever there is the least conflict of opinion as to curative effects of a remedy. The contention seems to be that even the testimony of the most experienced medical experts can never rise above a mere 'opinion' unless the expert has made actual tests of the drug to determine its effects in relation to the particular representations alleged to be false. The McAnnulty holding did not go so far. We do not understand or accept it as prescribing an inexorable rule that automatically bars reliance of the fact-finding tribunal upon informed medical judgment every time medical witnesses can be produced who blindly adhere to a curative technique thoroughly discredited by reliance scientific experiences. But we do accept the McAnnulty decision as a wholesome limitation upon findings of fraud under the mail statutes when the charges concern medical practices in fields where knowledge has not yet been crystallized in the crucible of experience. For in the science of medicine, as in other sciences, experimentation is the spur of progress. It would amount to condemnation of new ideas without a trial to give the Postmaster General power to condemn new ideas as fraudulent solely because some cling to traditional opinions with unquestioning tenacity. 170 F.2d 786." (Emphasis added) Reilly v. Pinkus, supra, at pp. 273, 274
In its further treatment of the due process problem, referred to in footnote 3, supra, the court observed (at page 276):
"Moreover, the issues in post office fraud cases make such cross-examination peculiarly appropriate. Proof of fraudulent purposes is essential--an 'actual intent to deceive.' See Seven Cases v. United States, 239 U.S. 510, 517. Consequently fraud under the mail statutes is not established merely by proving that an incorrect statement was made. An intent to deceive might be inferred from the universality of scientific belief that advertising representations are wholly unsupportable; conversely, the likelihood of such an inference might be lessened should cross-examination cause a witness to admit that the scientific belief was less universal than he had first testified." (Emphasis added)
It is apparent that the element of intent to deceive, which is no longer an essential in postal false representation cases since the 1968 amendment, played a large part in the formulation of the test, on judicial review, of postal fraud orders. 4/
"Appellants' second contention as to the admission of evidence is that the testimony of Drs. Mayer and Grollman should not have been admitted because it did not represent a 'universality of scientific belief' that 'Regimen Tablets' were ineffective--the test appellants allege was established by the Court in Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L. Ed. 63 (1949). This objection fails to note an important distinction between Reilly v. Pinkus, supra, and the present case. There the Government sought to use expert medical testimony not only to establish that certain product claims were false but also to establish that the claims had been advertised as part of an intentional scheme to defraud. In the present case the Government proved that appellants intended to defraud by other evidence than that of the two doctors, such as the testimony tending to prove appellants were aware of adverse expert opinion, and chose to disregard it. The testimony of Dr. Mayer and Dr. grollman was introduced only to establish that the advertising claims made for Regimen were scientifically false and was admissible for this purpose. McCormick, Evidence ?? 13-15 (1954)." United States v. Andreadis, 366 F.2d 423, 433 (2d Cir. 1966), cert. denied, 385 U.S. 1001.
Even so, the standard Respondents here urge of actual testing of the product to qualify the expert medical opinion is nowhere to be found. While in a given case tests might be necessary to draw a particular conclusion depending on the circumstances such circumstances have not been shown in the present case. In this connection it is to be noted that both of Complainant's medical experts testified that their testimony was in conformity with the consensus of scientific and medical opinion. 5/ Moreover, Judge Duvall's detailed findings and well-reasoned analysis of all of the medical testimony of these witnesses and of Respondents' medical witness make it clear that what possible conflict might be said to exist is slight indeed, and especially so when viewed in conjunction with the breadth of the advertising representations found by Judge Duvall to be materially false.
The two other cases relied upon by Respondents, both decided under the prior statute, require but brief comment. U.S. Health Club v. Major was reversed on appeal because the appellate court found that the medical testimony of the government expert was not, as the Not at Court found, a personal opinion but rather reflected the consensus of medical opinion. U. S. Health Club v. Major, 292 F.2d 665 (1961), cert. denied, 368 U.S. 896 (1961). In citing Fanning v. Williams, supra, Respondents state that "the government's medical experts actually ran tests and experiments to determine the efficacy of the advertised products" (Appeal Brief, p. 21). The recitation of facts in the cited decision indicates, however, that the tests were run to ascertain the chemical elements and ingredients in the product, not its efficacy. Nevertheless the appellate court upheld the finding of fraud based upon the expert medical opinion which it found to e the consensus of scientific knowledge. Neither case supports Respondents' exception on the facts.
Conclusion
In conclusion I find no support in law or fact for Respondents' exceptions to the Initial Decision and they are disallowed. The Initial Decision reflects in my view a proper result supported by substantial evidence and it is hereby affirmed. Accordingly, a remedial order will issue forthwith.
02/19/76
Lussier, Edward F.
"How? Skinny-Suit reduces you during your normal activities. Faster when you follow instructions for delightful Skinny Sessions. though total inch loss varies with the individual, we promise fantastic results -- or your money back]" Exhibit B:
"How does it work? You're inches trimmer, inches slimmer, the second you slip on your 'Skinny-Suit.' It reduces you even with your own everyday activities. Faster when you follow the instructions for your delightful 'Skinny Session.' After your session, you just go ahead and do whatever you were going to do anyway. And your 'Skinny-Suit' keeps on reducing you."
2/ Public Law 90-590, 82 Stat. 1153, 1968 U.S. Code Cong. & Admin. News, pp. 1327, 4290-4302; Lynch v. Blount, 330 F.Supp. 689 aff'd 404 U.S. 1007.
3/ i.e., The denial of the right of cross-examination on the crucial issue of intent to deceive.
4/ It may be noted that the distinction was recognized by at least one court even before the civil statute was amended in 1968. Thus, in a criminal mail fraud action brought under 18 U.S.C. § 1341 the Second Circuit Court of Appeals held: