In the Matter of the Complaint Against

BRAD MITCHELL and AMAZING DIETS, INC.
27313 Plymouth Road at
Detroit, Michigan 48239

P.S. Docket No. 5/147;

12/30/77

Sobernheim, Rudolf

APPEARANCES FOR COMPLAINANT:
H. Richard Hefner, Esq.
Law Department U. S. Postal Service
Washington, DC 20260

APPEARANCES FOR RESPONDENT:
John D. Sills, Esq.
Moore, Sills, Poling, Wooster, Sinn & Taylor, P.C.
1550 North Woodward Avenue
Birmingham, MI 48011

POSTAL SERVICE DECISION

This is an appeal from the Initial Decision of Chief Administrative Law Judge William A. Duvall, issued 18 August 1977. In his decision Judge Duvall found that respondents represented that "Fat Burning System" (a combined program of ketogenic diet and exercise) was an effective means of overcoming obesity and permitted one following this system to lose fat at a rate of more than one pound daily, without regard to caloric count or quantity of food consumed; that such system was a sure remedy for obesity, differed significantly from other methods for its control, and was effective irrespective of the number of unsuccessful attempts to reduce previously made by an obese person. Judge Duvall further found that these representations were false and materially so.

In support of these findings, he accepted the testimony of Dr. Vincent Cordaro, a physician employed by the Food and Drug Administration (FDA) in the U.S. Department of Health, Education and Welfare (HEW) and assigned to work with the Postal Service as collaborative officer. The sum and substance of Dr. Cordaro's testimony was that a diet excluding carbohydrates, such as respondents', may endanger the health of many persons who use it for too long or who are borderline or actual diabetics and that it is medically wrong to prescribe the same diet for all persons. Diets prescribed by physicians to reduce obesity are balanced in the intake of proteins, carbohydrates and fats and are intended to reduce caloric intake. Since respondents' diet does not restrict the amount of fat and protein eaten a dieter following respondents' "Fat Burning System" is likely to gain rather than to lose weight. Moreover, respondents' rope-jumping exercise program which accompanies the diet may be too strenuous for very obese persons or persons with unrecognized cardiac, kidney or metabolic (diabetis) defects.

He rejected the testimony offered on behalf of respondents by Morris Mitchell, his wife, and a family friend, employed by respondents sometimes as a model. Mr. Mitchell has a high school education and is engaged in the business of body building. Whatever knowledge of the effects of diets on the body he has acquired is empirical and without theoretical grounding. He is not licensed to practice medicine or any other paramedical profession and he does not hold himself out to be so licensed. His wife and family friend are likewise not professionally trained in the medical or in a paramedical profession.

The testimony of Mr. Mitchell relied on the books of two medical writers Robert C. Atkins, M.D., and Carlton Fredericks, Ph.D. who promote reducing diets free of carbohydrates. But neither they nor any other medical or diet expert was called by respondents to testify on their behalf.

Mr. Mitchell himself in his testimony recognized the need for individualization of reducing diets to fit the dieter in the warning included in "Fat Burning System" that the purchaser before embarking on the program should consult his physician as to its appropriateness. But, as the Chief Administrative Law Judge so properly stated, at that point the purchasers have parted already with their money. The testimony of appellant's wife and family friend related to weight losses achieved by them in observing the diet but the least that can be said about their testimony is that they undertook a far more strenuous exercise program than "Fat Burning System" prescribed. This obviously contributed to the extent and rapidity of their alleged weight loss which was thereafter repeated in respondents' advertising as a basis for the representations found therein.

Respondents in their appeal state two exceptions to the Initial Decision: that it was contrary to law and contrary to the great weight of the evidence. As to the first exception no further argument is presented unless it be the implied one that to decide a case against the weight of the evidence is automatically contrary to law.

As to the second exception, respondents make three points:

(1) That complainant's medical witness was not qualified to testify in this matter;

(2) That the Chief Administrative Law Judge gave insufficient weight to the testimony in behalf of respondents; and

(3) That the record reflects a split of medical opinion in the light of which respondents representations cannot be said to be false.

None of these points are well taken.

Dr. Cordaro, complainant's medical witness, has been a physician since 1943. He has been engaged in various branches of medical practice and since 1968 has been employed by the FDA. Since 1971 he has been the collaborative officer assigned by the FDA to work with the Postal Service on matters involving false advertising of medical products and plans. Even though his practice for a number of years during the 1960's was in a field having little bearing on the subject matter of this proceeding, his prior practice certainly made him familiar with the general principles of treating obesity, its causes and remedies, including diet and exercise programs such as respondents are selling. Moreover, in the last six years as the FDA collaborative officer with the Postal Service he has become familiar with the type of product or plan advertised by respondents and the problems raised by their advertising. Hence, his testimony was properly received and judged to be credible and worthy of reliance. On the other hand, respondents' witnesses (Mr. Mitchell, his wife and a family friend) are lay persons without professional training in medical or paramedical fields that would allow them to speak with authority on the effects of the diet and exercise program set forth in "Fat Burning System." In addition, the testimony of Mr. Mitchell's wife and family friend hardly rises above the character of the anecdotical.

As to the alleged lack of consensus of medical opinion, it appears from the record that there are at least two writers on food and diets who propound the type of diet which is found in "Fat Burning System" as a means of overcoming obesity. However, neither of the authors of these works nor anyone else was presented by respondents as a witness, subject to cross-examination on their views. The mere admission in evidence of the books by Drs. Atkins and Fredericks is wholly insufficient to overcome the testimony of complainant's medical witness.

In order to establish the consensus of the medical profession it is not necessary to show that there are no disenters. A mere showing that there are some who hold divergent views is insufficient to establish the kind of conflict within the medical profession which would reduce the views of any physician solely to a matter of opinion. See U.S. Health Club, Inc. v. Major, 292 F.2d 665 (3d Cir., 1961); Owen Laboratories, Inc. v. Schroeder, 284 F.2d 445 (7th Cir. 1960) and cases there cited. Moreover, what is involved here is not the expression of opinion but representations of fact which expert evidence has shown to be false and which, therefore, exceed the limits of puffing. Borg-Johnson Electronics v. Christenberry, 169 F.Supp. 746 (S.D.N.Y., 1959).

Accordingly, there is no error in the Initial Decision of the Chief Administrative Law Judge and on appeal to the Judicial Officer it is upheld. An appropriate remedial order under the provisions of 39 USC § 3005 will be issued forthwith.