In the Matter of the Complaint Against

SLIMMER,
P. O. Box 5485 at
Mobile, AL 36605

and

SLIMMER and/or VANITY HOUSE, INC.,
k Road at
Mobile, AL 36605

P.S. Docket No. 5/175

12/06/77

Sobernheim, Rudolf Administrative Law Judge

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

Irving Silver, Esq.
812 Downtowner Blvd.
Mobile, Alabama 36608 for Respondent

INITIAL DECISION

This is a proceeding by complainant against respondents under 39 USC 3005 which authorizes action against respondents on evidence satisfactory to the Postal Service that respondents are "engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations." Complainant alleges that respondents are engaged in such a scheme in the sale of the "Slimmer."

Specifically complainant in paragraph II of the amended complaint alleges that respondents through the use of an advertisement (Compl. Ex. 1) make representations, directly or indirectly, in substance and effect, whether by affirmative statements, omission or implication, as follows:

"(1) That the mere wearing of Respondent's 'Slimmer' will cause the user to lose 5-10 inches from the hips, stomach, waist, and thighs, in 4 days;

(2) That said girth loss will be due, in whole or in significant part, to loss of fat;

(3) That said girth loss will be due to a physiological change, rather than to the temporary, mechanical girth loss caused by the constriction of the 'Slimmer';

(4) That said girth loss will last significantly longer than the temporary, mechanical girth loss caused by the constriction of the 'Slimmer';

(5) That the wearing of the 'Slimmer' as directed makes a significant contribution over and above that of the exercise program in effecting the results charged in subparagraphs (1) - (4), supra;"

Complainant further alleges in paragraph III of the amended complaint that these representations are false and materially so.

Respondents filed an answer to the original complaint, denying all material allegations thereof and alleging that it failed to state a claim upon which relief could be granted and that complainant lacked standing to bring suit.

The amended complaint thereafter permitted to be filed on motion of complainant substituted the present subparagraph (5), set forth above, for two subparagraphs (5) and (6) of paragraph II of the complaint, making little change in substance. Respondents did not amend their answer and it is deemed to apply to the amended complaint as well as to the original one. Hearings were held on 15 and 29 July 1977 in Atlanta, Georgia, and Washington, D.C., respectively, at which both parties presented evidence. Briefs and proposed findings of fact and conclusions of law were received after the hearing on 26 September and 4 October 1977. Respondents also moved to correct the transcript of the second hearing and the proposed corrections of typographical errors or misunderstood words are noted. No formal action is needed in this regard.

STATEMENT OF FACTS

1. Vanity House, Inc. of Mobile, Alabama, is engaged in selling the "Slimmer" suit through advertising in various publications and seeking payment therefor through the mails. Pre-paid orders are to be sent to "Slimmer", P. O. Box 5485, Mobile, Alabama 36605.

2. The "Slimmer" suit is being sold by respondents for $12.75 and a handling charge of $1.25 or a total of $14.00.

3. Advertisements soliciting mail order purchases of the "Slimmer" suit appeared at least in the National Enquirer of 28 September 1976 (Compl. Ex. 1) and in Photoplay of August 1976 (Compl. Ex. 3) and June 1977 (Compl. Ex. 2).

4. The advertising of respondents' product came to the attention of a postal inspector who found the product claims "objectionable" (T 14) and made a test purchase, for which payment was made by a postal money order, in the summer of 1976 (Compl. Ex. 4-6).

5. IN response the inspector received in a Vanity House envelope (Compl. Ex. 7) the "Slimmer" suit and a four-page pamphlet, entitled "Slimmer Exercise Plan" (Compl. Ex. 8).

6. Respondents' advertisements are captioned "Slimmer THE PROVEN NO-DIET way to lose 5-10 inches in only 4 days" in attention-attracting heavy black lettering and show a large picture of a slender and tall young woman in a bathing suit and a small vignette of the young woman in a crouching position wearing the "Slimmer."

7. a. The advertisements (Compl. Ex. 1-3) hold out to the "Slimmer" purchasers the expectation of an "inch loss" of at least 5-10 inches in just four days because the "Slimmer's non-absorbent membrane construction 'holds in' body heat to remove excess inches". However, by following the "Slimmer's" exercise program the user "can continue to lose even more inches]" The inches are lost from "those key areas: stomach, hips, waist and thighs."

b. The "Slimmer" is said to start putting "instant pressure on fatty tissues" and to get to work "taking off those excess inches", to increase the loss of inches by simultaneous exercise, and to guarantee "a total loss of 5-10 inches from those key areas covered by the Slimmer."

8. The advertisements, the content of which have been summarized in Finding of Fact No. 7, make the representations which are charged to respondents in paragraph II of the amended complaint. Specifically, the advertisements represent:

a. The wearing of the "Slimmer" alone causes loss of inches for they state that more inches can be lost if exercises are added. See Compl. par. II (1).

b. The loss of girth is due, in part at least, to loss of fat. For the "Slimmer" is said to put pressure on fatty tissues and the statement is typographically emphasized. Whatever the theory behind the statement, to the ordinary reader this means that wearing the "Slimmer" causes loss of fat. See Compl., par. II (2).

c. The loss of girth is due to physiological change and is not merely the "trimmer" look due to mechanical constriction that is said to follow without more from wearing the "Slimmer". See Compl., par. II (3).

d. The loss of girth attained from wearing the "Slimmer" will last significantly longer than temporary mechanical girth loss. For the advertisements speak of and guarantee loss of "5-10 inches" and such language and guarantee indicate to the ordinary reader that the inches lost will stay lost.

e. The wearing of the "Slimmer" as directed makes a significant contribution over and above that of the exercise program to the girth loss held out to purchasers. The advertisements prominently state that wearing of the "Slimmer" will cause loss of 5-10 inches in four days and that more inches will be lost by following the "Slimmer" exercise program. To the ordinary reader and indeed to any reader this language cannot but mean that greater girth loss follows from wearing the "Slimmer" with, than from the sole performance of, the exercises.

9. The "Slimmer" is a non-porous, tight-fitting garment covering the body from the lower thighs to the upper limits of the waist.

10. The "Slimmer" Exercise Plan (Compl. Ex. 8) provides a program of exercises for the "Slimmer"-clad subject to flatten the stomach and to give the subject a slimmer waist, lovelier legs and less hippy hips. The exercises are to be preceded by a period of 3 minutes during which the body is to remain "limp", followed by 2-3 minutes of stretching and bending. The exercises are mild callisthenics (T 198, 201) and by themselves take about 11 minutes (T 199). The program suggests, however, extending the exercise period by about five minutes to work trouble spots that stubbornly refuse to get into shape (Compl. Ex. 8, p. 2, col. 1). Thus altogether the exercise program may take up from 15 to 30 minutes with an estimated actual energy output equal to 80 calories (T 204, 215-6). The "Slimmer" may, however, be work for an additional relaxation period of 15 to 20 minutes (T 239) and the total added energy output may exceed the equivalent of 80 calories (T 240).

11. The foregoing estimates as to exercise time and energy output were made by respondents' expert witness on cross-examination. He attempted to increase his estimates of caloric output due to the exercises on redirect examination by counting relaxation time while wearing the "Slimmer". Obviously, additional energy output by wearing the "Slimmer" for a short period after or during the exercises, while resting, cannot cause a substantial energy output. On the whole, the witness' answers on cross-examination correctly and credibly describe the nature of the exercises and the energy output which they require.

12. The theory on which respondents base the "Slimmer" can be summed up as follows (T 126, 231 et seq.): If the body is covered in whole or in part, heat dissipation from the skin is interfered with (T 150). Hence, performance of normal bodily activities and of callisthenic exercises requires increased energy and leads to loss of girth, alias weight (T 259). Importantly, the "Slimmer" displaces body fluids in the fat cells (T 142) and excess fluids enter the circulatory system and are removed from the body through sweating or the kidneys (see T 126, 143-4, 159, 188). This phenomenon contributes greatly to the so-called girth loss (T 158).

13. Complainant called as its expert witness a practicing physician in Atlanta, Georgia, specializing in diabetes and endocrinology (T 19-20). He has treated and is treating many patients and about half of his patients are diabetics (T 50). He is a member of professional societies in his fields of practice (T 19) and keeps up with the literature relating thereto (T 48-49).

14. To him excess girth is the result of eating in excess of energy output (T 21) and excess girth is overcome by a combination of exercise and diet appropriate to the patient (T 22). Patients want to lose excess girth to feel or look better and to do so need to lose fat or, in some cases, fluid (T 29-31). Exercises, such as the "Slimmer" plan prescribes (Compl. Ex. 8), strengthen the abdominal and back muscles and use energy which, if not compensated for by added caloric intake, will produce a loss in girth and weight (T 35).

15. a. The witness testified that he was familiar with constraining belts and their effect on the girth of the wearer and that the wearing of such belts would cause temporary loss of girth through redistribution of fluid away from the abdominal wall, the redistribution of intestinal gas and a squeezing effect on the veins and blood vessels of the abdomen (T 36-37). Such effect would, however, be temporary and between minutes to as long as four (4) hours after the constraining garment was taken off, the wearer's body would return to its prior configuration (T 37). The constrictive effect of such garment is lost immediately while the effect of fluid redistribution would disappear within a few hours at most (T 39). Displaced gas returns in minutes (T 40).

b. The witness added that the effect of wearing the "Slimmer", while performing the exercises listed in the "Slimmer" exercise plan (Compl. Ex. 8), would hardly interfere with the dissipation of the increased body heat (T 63), would cause only a negligible increase in the energy output required to perform the exercises (T 40, 98) and would not contribute any girth reducing effect to that which performance of the exercises alone produces (T 42).

c. The witness admitted that wearing the "Slimmer" may cause a girth loss of 5-10 inches in 4 days but explained that such loss of girth would be temporary only, would not be due to a loss of fat, and would not be the result of physiological change in fatty tissues (T 41-42, 100).

d. The witness stated that his testimony represented the consensus of medical opinion (T 43) and that he gave the same answers about constrictive garments to inquiring patients which he gave in his testimony (T 53).

16. On both direct and cross-examination complainant's witness did not contradict substantially the underlying physiological theories of respondents (see T 36-37, 55 et seq.). He emphasized, however, that the "Slimmer" exercises, performed while wearing the "Slimmer", were far from severe enough to produce the results to which the theories adverted to might lead (T 68). For instance, to lose 200 calories would require a brisk walk of one hour's duration (ibid.).

17. a. Respondents called as an expert witness a specialist in exercise physiology (T 112) who held a Ph.D. degree from Florida State University in Tallahassee, Florida, which he had obtained in 1970 (T 111). His doctoral thesis had for its subject the effect of physical training on physiological aging (T 257). The witness is at present director of the Human Performance Laboratory of the Department of Health, Physical Education and Recreation at the University of Southern Alabama (T 112).

b. Exercise physiology is concerned with the effect of work on the body and athletes are its primary concern (T 258). Work does not mean labor in the economic sense but the performance of exercise on such apparatus as bicycle ergometers and motor-driven treadmills so that the amount of physical exertion of the subject can be exactly measured (T 259). Exercise physiology, in measuring the response of the human body to such physical exertions (T 112), determines the amount of energy used by measuring the expenditure of oxygen in liters as a unit and does not use the calory as a unit of measurement (T 132, 244).

18. a. The witness' theoretical views on which the "Slimmer" scheme is based have been largely summarized in Finding of Fact No. 12. Contrary to the testimony adduced from complainant's expert witness, he placed greater emphasis on the rapid initial loss of water, in particular during the first week of performing the exercises while wearing the "Slimmer" (T 143 et seq.) and considered the consequent girth loss of 5-10 inches in four days to be due to physiological change (T 157).

b. On cross-examination he added that his view as to girth loss was based on studies cited in a basic physiology text (T 210). Of these studies he could remember only one involving subjects standing for 2 hours in a sauna (T 211). He also referred to a study at Ohio State University on the effect of exercises performed by other subjects wearing football uniforms with consequent heavy weight loss (T 154-156). He had, however, no data from the physiological literature involving the effect of wearing a "Slimmer" type garment during 15 to 30 minutes of light callisthenics as under the "Slimmer" Plan (T 212).

c. The witness tested the effect of wearing the "Slimmer" on girth loss while performing exercises between 5 and 8 June 1977. Two groups of five persons of varied age, weight and height performed the "Slimmer" plan exercises over four days, one group wearing the "Slimmer", the other not. In addition, two subjects were tested on blood flow during the performance of the exercises, one of whom only wore the "Slimmer" (T 159-160). As to both tests the persons wearing the "Slimmer" did slightly better, i.e. had slightly increased blood flow (T 163) or somewhat greater girth loss (T 165A). For test details, see Resp. Ex. 1 and 2. The witness stated, however, firmly that his test involved too few people so that statistically valid conclusions could not be drawn therefrom and that his results may be due to chance only (T 166). In order to permit conclusions to be drawn based on probability principles much larger groups would have to be tested (T 167-168). Moreover some of his subjects were slim young women and none overweight (T 168).

d. He added that in his view a slightly better performance when wearing the "Slimmer" might be important as a morale factor (T 180) but that he "honestly" did not know whether it made a difference (T 182). All responses regarding energy expenditure, when performing the stated exercises with or without wearing the "Slimmer" were highly individual and there were no applicable general principles yielding comparative percentage terms.

19. a. The testimony of the expert witnesses called by the parties is in agreement in many respects. One major point of disagreement is whether the loss of girth under the "Slimmer" plan is, as complainant's expert witness testified, largely due to temporary loss of body fluids or is due to what respondents' witness called "physiological change" (T 157). On this and other points of physiological or medical theory or datum the testimony of complainant's witness is deserving of greater trust and credibility.

b. Complainant's witness is a physician who has attained considerable eminence in his profession and who has demonstrated to the satisfaction of the presiding administrative law judge broad and well-grounded theoretical knowledge and practical experience in the segment of medicine the principles of which find application in this proceeding. Hence, his judgment applying general principle to the validity of the representations made in respect of the "Slimmer" by respondents should be and is herein accepted.

c. On the other hand, respondents' expert witness is a skilled but narrow work measurements physiologist in the specialized sense in which the term "work" is used in exercise physiology. His theoretical grounding in physiology impresses me as much less thorough than that of complainant's witness and one may well question to what extent he is qualified to make broad judgments in the field of physiology in general.

20. Accordingly, I find that any girth loss due to the "Slimmer" plan is not the result of physiological changes in the subject's body within the meaning of the record made herein.

21. Based on the foregoing detailed findings of fact and the record as a whole I find that respondents falsely represent that:

a. the mere wearing of the "Slimmer" will cause the user to lose 5-10 inches from hips, stomach, waist and thighs in four days. Whatever theory underlies the "Slimmer" idea, the wearing of the "Slimmer" without exercise fails in practical application to produce the result represented.

b. the foregoing girth loss results in significant part from loss of fat. The testimony adduced by respondents emphasized loss of fluid over loss of fat and there is no credible evidence in the record to support the representation that the four-day loss of girth is due to any substantial loss of fat.

c. the foregoing loss of girth is due to physiological change, i.e. a bodily change of extended duration. To the contrary, the weight of the evidence clearly establishes that loss of girth is largely temporary due to the "Slimmer's" constrictive effect and will be lost in a few hours at most once the "Slimmer" is removed and that girth loss due to loss of fluid is also a temporary phenomenon.

d. the foregoing girth loss lasts significantly longer than the temporary girth loss due to mechanical construction of the "Slimmer". On the contrary, the weight of the evidence establishes that girth loss after removal of the "Slimmer" continues only for a very limited time until the squeeze effect on body and fluids has worn off.

e. the wearing of the "Slimmer" makes a significant contribution to the advertised girth loss over and above that produced by the "Slimmer" plan exercises alone. The evidence adduced by complainant's expert witness as well as the tests performed by respondent's witness completely negate this representation.

22. The representations of respondents go to the very qualities of the product which attract potential purchasers and are, therefore, materially false.

CONCLUSIONS OF LAW

1. Respondents are properly named in the complaint as such. Vanity House is the firm operating the "Slimmer" business and "Slimmer" is the name or trade name under which purchasers are solicited and the addressee to which pursuant to the advertisements used to solicit purchasers the latter are to send their orders. Hence, both are a "person involved" within the meaning of 39 CFR 952.5.

2. Respondents' charge that the complaint is too indefinite in using phrases such as "significant part", "last significantly longer" and "significant contribution" to characterize the falsity of respondents' representation is not well taken. The criticized phrase is no more than a shorthand expression for the conclusion that the part played in the represented results by wearing the "Slimmer" does not warrant the conclusion that it makes an effective contribution or is an effective cause of the advertised results or their duration. Thus interpreted, the complaint fully informs respondents of the standard by which the charges against them must be evaluated. As I have found as a matter of fact, wearing the "Slimmer" is neither an effective cause nor makes an effective contribution to the advertised results or their duration.

3. Respondents are 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 USC 3005.

4. Whether directly or by implication, respondents' advertisements represent that the girth loss following wearing the "Slimmer" is one of extended duration and that wearing the "Slimmer" is an effective cause of, or effectively contributes to, the advertised girth loss over and above the performance of exercises and they will be so understood by the ordinary reader. See Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948).

5. Accordingly, an order as provided in 39 USC 3005 should be issued against respondents.