In the Matter of the Complaint Against

SARA MICHEALS
Post Office Box 15607
Post Office Box 33002 at
St. Petersburg, Florida 33733

P.S. Docket No. 5/95;

APPEARANCES:
Jack Paller, Esq.
Lee Harter, Esq.
Katz, Paller & Land
400 Colony Square
Atlanta, Georgia 30361
for Respondent

Thomas A. Ziebarth, Esq.
Consumer Protection Office
Law Department
U.S. Postal Service
Washington, D.C. 20260
for Complainant

POSTAL SERVICE DECISION

The subject proceeding is on appeal to the undersigned from the Initial Decision of Administrative Law Judge Rudolf Sobernheim. That decision concluded that Respondent's use of the mail in selling its product "Sara Micheals Protein" included the use of material false representations. Judge Sobernheim accordingly recommended the issuance of a mail stop order under the provisions of 39 United States Code § 3005. Respondent's first exception to the Initial Decision is that the Administrative Law Judge erred in failing to dismiss Representation 3(a) of the Complaint for lack of evidence. Paragraph 3 of the Complaint charges that Respondent's advertising makes certain representations directly or indirectly, in substance and effect whether by affirmative statements, omissions, or implication, the first of which being that

"(a) SARA MICHEALS PROTEIN FOR THE BUSTLINE (hereinafter referred to as SMP) contains a unique combination of amino acids not readily available in an ordinary balanced diet;"

The basis for Respondent's exception is the contention that, since the Complainant's first expert witness, Dr. Mahmoud Mourad, had testified that he did not know the amino acid composition of the ordinary balanced diet or of Respondent's product, no prima facie case had been made out considering the specific wording of the charge and therefore it should have been dismissed at that point in time on Respondent's motion. Instead, additional evidence was permitted and Respondent contends this not only improperly shifted the burden of proof from Complainant but also resulted in Judge Sobernheim's giving greater weight than warranted to the testimony of Complainant's expert witnesses. Complainant's Reply Brief contends that Dr. Mourad's testimony did in fact establish a prima facie case based on his qualifications and the fact that his conclusions were based on assumptions with respect to amino acid composition which was most favorable to Respondent, namely that the protein contained in Respondent's product was a complete protein. The record so indicates and Judge Sobernheim's denial of the motion to dismiss this charge was warranted. His later evaluation of the complete evidence as to the truth or falsity of this charge affords proper weight to the evidence in my view and therefore Respondent's first exception is disallowed.

Respondent's second exception to the Initial Decision is that the Administration Law Judge erred in finding that the Respondent's advertisements represented that its product would cause the female user's bustline measurements to increase 3 to 4 inches in 2 to 3 weeks. The representation which is alleged in paragraph 3(b) of the Complaint is that

"(b) SMP, when used in conjunction with the daily, one-minute exercise program, will cause the female user's bustline measurements to increase from 3 to 4-1/2 inches in 2 to 3 weeks;"

Judge Sobernheim found that the Respondent's advertising would convey to the ordinary reader that increases of 3 to 4 inches in 2 to 3 weeks could be expected. He found that the advertising claim of 4-1/2 inches was not tied into a three week period but rather to a "few short weeks." Thus he conformed the pleadings to the proof and at page 11 of his decision held "I deem the allegations of paragraph (3) (b) of the Complaint amended to read 'cause...to increase 3 to 4 inches in 2 to 3 weeks.'" He went on in a well reasoned analysis to further find upon consideration of the evidence that this claim was materially false. In evaluating the testimony given in support of these increases as related to the exercise portion of Respondent's program compared to its advertising description thereof he concluded "That such minimal exercise should produce the results testified to by Respondent's witnesses in 2 to 3 weeks simply beggars description." (Initial Decision of p. 30) Weighing the evidence "even at its reading most favorable to Respondent" he found the representation false. Upon review of the testimony I am in agreement with these conclusions.

As to the "amendment" of the Complaint it may be noted that not only is the lesser claim of 4 inches subsumed in the greater alleged claim of 4-1/2 inches but there is absolutely no showing that Respondent was prejudicial in presenting its evidence. Its contention that its expert testimony might have been more convincing if limited to the 4 inch gain is unpersuasive. The deficiencies in Respondent's testimony clearly spelled out in Judge Sobernheim's evaluation, go far beyond this one-half inch difference making it immaterial in the circumstances of the case insofar as any reasonably conceivable effect upon the ultimate findings is concerned.

A second aspect of this exception is Respondent's contention that the disclaimer language in its advertising precludes finding that this representation is made to the ordinary reader. The Initial Decision deals with this directly and I believe correctly at page 38 in pointing out the ineffectiveness of Respondent's disclaimer when viewed in total context. For similar result see Sean Michaels, P.S. Docket No. 5/16.

For the reasons stated above Respondent's second exception is disallowed.

Respondent's third exception is that the Administrative Law Judge erred in concluding that the evidence supported the falsity of the charge that use of Respondent's product will cause the female user's bustline to increase from 3 to 4 inches in 2 or 3 weeks. As indicated in my ruling on the previous exception Judge Sobernheim's evaluation of the evidence is persuasive on the point. Respondent claims however that he disregarded much of the testimony and refers in some detail to the testimony to argue this point. The arguments are without merit however. These involve consideration of posture changes, ribcage expansion, and psychological-mental attitude changes. Additional arguments regarding added fat due to increased caloric consumption and muscular hypertrophy within a 2-3 week period were properly treated by Judge Sobernheim in the Initial Decision. The record fully supports the finding of material falsity and Respondent's third exception is accordingly disallowed.

Respondent's fourth exception is that the Administrative Law Judge erred in concluding that the evidence supported the falsity of Complainant's charge (3)(c) that use of the product will cause the female user's breasts to become larger, firmer and fuller. The support for any finding that the female user of SMP will obtain larger and fuller breasts lies only in cases where the user consumes the protein supplement with whole milk in addition to her daily caloric needs in which case she will receive an extra 180 calories a day. The testimony was to the effect that a part of the additional fat may be deposited in the breast (Tr. 66, 142). Respondent contends that since the charge did not include any element of time in which the results would be achieved this testimony precludes finding it false. Such an argument is not only completely insufficient to undermine the finding of material falsity but falls of its own weight. When the evidence is viewed in realistic perspective it becomes tenuous if not self defeating. This exception is disallowed.

Respondent's fifth exception is that the Administrative Law Judge erred in finding that the representation alleged in Complaint paragraph (3)(d) is made by its advertising and is false. The representation which is alleged in that paragraph is that

"(d) SMP is an integral and essential part of the SARA MICHEALS regimen and makes a material and substantial contribution to the claimed benefits." Respondent attacks what it considers is the vagueness of the allegation. The point was considered by Judge Sobernheim in his statement at page 15 of the Initial Decision that "The reference to 'benefits' may be inartistic, but clearly is shorthand for the bustline increases which Respondent advertises." There is nothing vague about the charge and this exception must be disallowed. Respondent's last exception is that the Administrative Law Judge erred by concluding that Respondent had not shown a denial of equal protection of the law or discriminatory prosecution in Complainant's enforcement of 39 U.S.C. § 3005. The arguments supporting this contention were made to Judge Sobernheim and little has been added on appeal. His handling of the matter is correct as I view it. For like result see the final Postal Service Decision in Sean Michaels, P.S. Docket No. 5/16 (December 27, 1977).

The additional arguments which Respondent makes with respect to certain statements made in the Initial Decision become immaterial. For example Respondent does not disagree with the statement in paragraph 26(d) that "the Mark Eden Product has no resemblance to Respondent's" but complains that the finding should have gone further to comment on the efficacy of the Mark Eden product. Respondent also takes issue with the statement in paragraph 6(b) that "concepts of bustline measurement and the use of the word in regard to dress pattern sizes have no relevance to the determinations to be made in this proceeding." However the

Initial Decision makes it quite clear that this is so because, taken in context, Respondent's advertisements refer to change in the breasts. Likewise Respondent's objection to the statement at paragraph 20(b) referring to the testimony that only about 5% of the U.S. population suffer from protein deficiencies really is an argument on the weight to be given the testimony in the light of other evidence, some conflicting and some supporting. I see no basis to change the finding. The remainder of Respondent's argument goes to weight to be given to the evidence. As previously indicated it is my opinion that the weight of the evidence supports the Initial Decision. Accordingly Respondent's last exception is also disallowed. The Initial Decision is hereby affirmed. Accordingly a remedial order is being issued under the provisions of 39 United States Code § 3005. 02/02/78

Lussier, Edward F.