In the Matter of the Complaint Against

DIET RESEARCH (or any variation thereof)
1865 Warren Way
Atlanta, Georgia 30344 and at
P. O. Box 91189
East Point, Georgia 30364 and at
P. O. Box 91189
Atlanta, Georgia 30344

P.S. Docket No. 5/172

01/09/78

Lussier, Edward F.

APPEARANCES:
Daniel S. Greenberg, Esq.
Law Department, U. S. Postal Service
Washington, DC 20260 for Complainant

Jack K. Bohler, Esq.
2706 Harris Street,
East Point, Georgia 30344 for Respondent

POSTAL SERVICE DECISION

This proceeding is on appeal to the undersigned from an Initial Decision rendered by Administrative Law Judge Rudolf Sobernheim. In that decision Judge Sobernheim recommended the issuance of a Mail Stop Order under the provisions of 39 United States Code § 3005 based upon his findings and conclusions that the above named Respondent was engaged in a scheme or device to obtain money through the mails by means of false representation.

Respondent's product is a pamphlet entitled "The Rice Diet." Judge Sobernheim found that Respondent made the following materially false advertising claims in connection with the sale of the pamphlet: (a) that "The Rice Diet" reverses much of the damage done by disorders of the blood vessels, eyes, heart and kidneys; (b) that losses of excess weight of 80 pounds in 19 weeks and 35 pounds in 5-6 weeks are typical of losses that may be expected; and (c) that the above results will be due to the special properties of rice. Respondent's appeal from the Initial Decision takes ten separate exceptions to that decision, the first exception being to finding of fact no. 8 that the weight losses set forth in Respondent's advertising materials are represented to be "typical" and that the ordinary reader will be persuaded by the advertisement that he too can obtain a specific weight loss. Indeed the examples of weight losses set forth in the advertising appear to have no other purpose and support the finding that the manner of their presentation is such that the ordinary reader whose situation fits an advertising claim will believe that he too can obtain the desirable results. This exception is accordingly disallowed. Respondent's second exception is to the statement in finding of fact no. 9 referring to the mention of Chinese medicine in the advertising claims. Respondent contends that a reference to Chinese medicine does not appear in the advertisement. Complainant correctly points out that the advertisement attached as Exhibit A to the complaint, and received in evidence as Complainant's Exhibit 1, specifically refers to Chinese medicine and this same reference appears on page 6 of Respondent's direct mail advertisement received in evidence as Complainant's Exhibit 3. This exception is disallowed. Respondent's third, fourth and fifth exceptions are respectively to Findings of Fact 19(a), (b) and (c) holding that the Respondent's advertising claims set forth above are false. Respondent makes no argument as such in support of its third and fourth exceptions but only to a part of its fifth exception. However from its introductory statement of the case it can be seen that its position is that the evidence does not support the findings of falsity. Judge Sobernheim has described in some detail the pertinent testimony and the basis for his conclusions. His analysis and evaluation of the evidence is set forth with convincing clarity. Respondent's statement of the case with referrals to testimony affords no basis to change or reverse Judge Sobernheim's findings and conclusions. Respondent's argument on its fifth exception is directed to that portion of Finding of Fact 19(c) which attributes to Respondent's advertising the claim that rice has some special or magic or mysterious quality which contributes to the effect of the rice diet on the body. That finding is a prelude to the second and last sentence of Finding of Fact 19(c) which is that "Since Respondent has been found to make the contrary representation it follows that its representation, as alleged in paragraph II (3) of the complaint, is false." That paragraph of the complaint charges that Respondent's advertising materials claim that the results with respect to reversing much of the damage done by specified physical disorders and the results as to specific excess weight losses will be due to the special properties of rice. Since those claims have been found to be materially false based on substantive evidence to that effect it follows that the last claim as to these results being produced due to the special properties of rice is also false. Respondent's third, fourth and fifth exceptions are accordingly disallowed. Respondent's sixth exception is to Finding of Fact 20 that "Respondent's representations are also materially false since they relate to the qualities of its product which induce purchasers to buy it." Here also Respondent contends that its representations are true. That issue has been decided against it. Finding of Fact 20 merely states the obvious fact that the representations go to a matter which is bound to be material to the prospective purchaser. Respondent's exception thereto is disallowed. Respondent's seventh, eighth and ninth exceptions relate to Conclusions of Law 1, 2 and 3 that Respondent makes the representations alleged, that it is engaged in a scheme or device to obtain money through the mails by means of false representations contrary to 39 USC § 3005 and that accordingly a mail stop order as provided by 39 USC § 3005 should be issued.

Respondent contends that "a reading of the transcript of evidence and the undisputed findings of fact will not support said conclusions." This has previously been discussed and resolved against Respondent. The evidence is more than substantial to support the conclusions. Respondent further contends that the purpose of the law is to prevent the mails from being used as a means of disseminating printed matter which is harmful to the public whereas the use of Respondent's product would be useful to that portion of the public which is overweight and further the Initial Decision found that the diet is safe. Therefore, Respondent contends, a mail stop order should not issue. The argument is irrelevant. The law is directed against materially false statements in advertising claims. The record here establishes that. The public is entitled to protection and the statutory scheme for protection in such circumstances is a mail stop order. Respondent's seventh, eighth and ninth exceptions are accordingly disallowed. Respondent's tenth exception is to the refusal to let its witness Linda Zimmerman answer the question as to whether or not weight losses of 80 lbs. in 19 weeks and 25 lbs. in 5 to 6 weeks would be typical of losses that may be expected by one practicing the diet and the confinement of her answer to a possibility. The record shows that the ruling was to the form of the question in view of the witness's admission that she had not seen this particular diet in use.^*/

It can be seen from a review of the transcript that Judge Sobernheim's question to the witness regarding an "expected" weight loss was broader than the witness's answer which was limited to a possibility and Respondent's counsel's further questioning also so limited.

Respondent contends that it was deprived of the benefit of its witness's answer to a very vital and pertinent question germane to its defense and should its previous exceptions be denied, as they have been, that the record be reopened to allow the taking of additional testimony of the witness Linda Zimmerman regarding this matter. However, Judge Sobernheim's ruling appears to me to be clearly correct and I perceive no deprivation of a right to present evidence under the circumstances nor any basis for reopening of the record. Respondent's last exception is therefore disallowed and its motion to reopen is denied.

The Initial Decision is hereby affirmed and a remedial order under the provisions of 39 USC § 3005 is being issued forthwith.

01/09/78

Lussier, Edward F.

____________________

*/ "BY MR. BOHLER:

Q.On a rice diet, such as that prescribed in this booklet, would you expect to find the following -- have you ever found a typical weight loss as alleged, 80 pounds in 19 weeks? In your experience, have you found such weight losses?

MR. GREENBERG:Objection. It is my understanding of this witness's testimony, that she has seen a more strict diet, but this particular diet has not been used under her direct supervisions.

MS. ZIMMERMAN: I have seen the rice diet used in house patients --

JUDGE SOBERNHEIM: The rice diet as described here?

MR. ZIMMERMAN: Not exactly as it is prescribed in here but with the percentage of carbohydrates --

JUDGE SOBERNHEIM: Reformulate the question slightly so as to not tie her to an observation she has not had.

MR. BOHLER: I was speaking generally of weight loss.

JUDGE SOBERNHEIM: I know, but weight loss due to what?

MR. BOHLER: Due to a diet. I think there are some --

JUDGE SOBERNHEIM: The weight loss as advertised by your client -- that certain weight losses can be expected --

BY MR. BOHLER:

Q. With regard to the allegation of Complainant, that a weight loss of 80 pounds could be expected in 19 weeks, based on your professional experience, can you state whether or not that could be a typical weight loss for an obese person?

JUDGE SOBERNHEIM: There is no typical weight loss for an obese person because there are no typical obese people. Could it be expected that if an obese person may have such a weight loss?

MS. ZIMMERMAN: It is possible for this amount of weight loss to happen. It would depend upon the activity level of the individual. It would depend upon the calorie deficit. But it is possible.

BY MR. BOHLER:

Q. Based on your personal knowledge and experience, -- let me ask the same question with the next allegation; 35 pounds in five to six weeks?

A. Is that possible?

Q. Yes, is that possible?

A. It is possible. It could depend on whether it is male or female, what the activity level of the patient is, what conditions existed before the diet was pursued, but it is possible.

Q. The last allegation is ten pounds in two weeks. What would be your comment on that?

A. Yes, I would say this is possible to have this amount of weight loss. Again, it would depend on the calorie deficit, activity level, the sex of the individual."