In the Matter of the Complaint Against

MAR-DEE CORPORATION,
4015 S.W. First Street at
Plantation, FL 33317 and
Post Office Box 8767 at
Coral Springs, FL 33065

and

KEN-DEE CORPORATION,
7301 North University Drive at
Tamarac, FL 33319

P.S. Docket No. 6/131

October 24, 1978

William A. Duvall Chief Administrative Law Judge

APPEARANCES:
Thomas A. Ziebarth, Esq.
Law Department U. S. Postal Service
Washington, D.C. 20260 for Complainant

Allen Kenneth, President
P. O. Box 8767
Coral Springs, FL 33065 for Respondent

INITIAL DECISION ^*/

This case was initiated on August 10, 1978, by the filing of a complaint by the Consumer Protection Office of the Law Department of the United States Postal Service, the complainant. In the complaint it is charged that Mar-Dee Corporation at Plantation, Florida, and Coral Springs, Florida, and Ken-Dee Corporation at Tamarac, Florida, are engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, in violation of 39 U.S. Code 3005.

It is charged in the complaint that attention is directed to the scheme by means of advertisements appearing in publications in general circulation and by means of direct mail circulars, all of which are calculated to induce the readers thereof to remit money or property through the mail. By means of such materials, it is charged, respondent represents, directly or indirectly, in substance and effect, that:

(a) The addition of W-L-40 to bath water will cause the bather to reduce body weight and inches immediately with the very first bath;

(b) The addition of W-L-40 to bath water will cause an obese person to lose as much as 61 pounds after only five 15-minute baths;

(c) W-L-40 "actually cleans out the pores thereby opening the way for the subcutaneous fat to dissolve and at the same time be expelled through the skin's own pores";

(d) W-L-40 is "100% effective" and works "without diet and without any work or sacrifice" on the part of the user; and

(e) The efficacy and safety of W-L-40 has been established by means of scientific tests.

A timely answer was filed by the respondent. The answer is in the form of a general denial of all the charges of the complainant. In the answer, it was stated that the respondent would appear in person at the hearing, but the right to have counsel appear with the respondent was reserved.

The hearing was held on September 25, 1978. At the hearing no appearance was entered by or on behalf of the respondent. Pursuant to prior notification of the parties in accordance with the rules, the matter was considered under Section 952.11(b) of the Rules of Practice, and an oral decision was rendered, the respondent having filed an answer but having failed to appear.

The respondent does engage in business through the mails. The respondent does advertise in publications of wide circulation. These findings are supported by Exhibits 1-6, which were received in evidence. These exhibits are advertisements used by the respondent to solicit orders through the mail for a product known as W-L-40. Various quantities of the product are offered for sale for varying amounts of money.

The respondent does make the representations which are set forth in paragraph 3 of the complaint. Paragraph 3(a) of the complaint is found in the last subcaption appearing in the left-hand column on each of the advertisements used by the respondent. The language of this subcaption is as follows: "Lose pounds and inches with your very first bath]]"

The representation in paragraph 3(b) of the complaint is found in the caption in large type, in the language, "I only took five baths, each bath lasting only 15 minutes]" following the statement, "I lost 61 pounds of excess by just relaxing in my bathtub at home." This representation is also found in the fourth from the last paragraph in the left-hand column of each advertisement, in substantially the same language.

The representation found in paragraph 3(c) of the complaint is found in the third complete paragraph of the body of the advertisement in the following language, "W-L-40 actually cleans out the pores thereby opening the way for the subcutaneous fat to dissolve and at the same time be expelled by the skin's own pores."

The representation set forth in paragraph 3(d) of the complaint appears in a subcaption near the top of the advertisement under the language in the largest size type. The language used to make this representation is "100% effective," and in the third paragraph from the bottom, in the left-hand column of the advertisement, in the language, "Without Diet and without any work or sacrifice" on the part of the user.

The charge which is set forth as paragraph 3(e) of the complaint is found in language in a box at the very top of the advertisement. The language is as follows: "Scientifically tested and guaranteed absolutely safe."

It appears from the foregoing review that most of the language used in the charges of the complaint is taken directly from the language of the advertisement itself. It is beyond question, therefore, that the average person reading this advertisement would get the impression that the respondent is promising those things which are expressed in the charges of the complaint.

The complainant called two Postal Inspectors as the first witnesses. First to testify was Inspector Olin J. Broadwater, who had initiated the test correspondence in this matter. Inspector Broadwater sent orders for the products to each of the named respondents at the addresses set forth in the captions of the complaint. Inspector Broadwater was assigned to other duties after the initiation of this case and he turned his files over to Inspector Kenneth W. Newman, who completed the investigation.

Inspector Newman testified that he never received the product from either of the named respondents, but from each respondent he received a card bearing the return address, in the case of the Mar-Dee Corporation, of its offices at Plantation, Florida, and at Coral Springs, Florida, and in the case of the Ken-Dee Corporation, of its offices in Tamarac, Florida. The cards were identical in substance, and they advised the inspector, under the names in which he had placed the orders, that the high demand for that product caused delay in delivery, and that if the persons placing the orders would be patient the respondent would fill the orders in due time.

As of the date of the hearing, nothing had been received from either of the respondents. This fact makes the respondent subject to having additional charges placed against it, but the complainant has not sought to do so. The complainant is not precluded if the filing of such a charge later appears to be appropriate.

Testifying as a medical expert on behalf of the complainant was Dr. Vincent F. Cordaro, who is a medical doctor employed at the Food and Drug Administration in the capacity of a consultant to the Postal Inspection Service to render opinions as to the efficacy of different products which are, from time to time, submitted to him. The testimony of Dr. Cordaro is, for the most part, set forth in an affidavit, which he identified as being the substance of the testimony he would give if he were called upon to testify orally. This affidavit reads as follows:

1. I have been a doctor of medicine for 37 years, the past 10 of which have been spent as a Medical Officer in the Office of Compliance, Bureau of Drugs, United States Food and Drug Administration.

2. I have examined and I am familiar with the advertising material attached to a civil-administrative Complaint in Postal Service Docket No. 6/131. A copy of one of these advertisements is attached hereto as Exhibit "A."

3. This advertisement is filled with claims which are totally and grossly false and irrational.

4. There is no known substance which, if added to bath water, will cause a person bathing in such a solution to lose weight or diminish the body dimensions.

5. The supposed testimonial, "I lost 61 lbs. of excess fat ... by just relaxing in my bathtub ... at home ... I only took 5 baths ... each bath lasting only 15 minutes" is an absolute medical impossibility.

6. There is no substance known to science which will enter the pores of the body, cause subcutaneous fat deposits to dissolve and be expelled through the pores.

7. The only way in which body weight can be reduced is by lowering calorie intake below the level which is utilized by the body. Therefore, the claim that "W-L-40 is 100% effective" and works "without diet and without any work or sacrifice" is completely false.

8. The claim that the safety and efficacy of W-L-40 has been established by means of scientific tests is utterly false since the process by which W-L-40 is supposed to work is completely contrary to medical knowledge.

9. The opinions I have expressed herein are in conformity with the consensus of informed medical opinion. To the best of my knowledge and belief there is absolutely no medical or scientific support for the advertising claims referred to.

Dr. Cordaro testified that the fact that no product was received in response to any of the orders does not cause him to change his testimony or have any qualms concerning the accuracy of that testimony because of the fact that the respondent is placing advertisements in publications which contain representations and promises to prospective customers which are physiologically, anatomically and chemically incapable of being fulfilled. He summarized his testimony by saying that one simply cannot dissolve fat, and that is the substance of what the respondent is promising. The testimony of the medical expert in this case is that it simply cannot be done.

Summarizing the record, it is found as a fact that the respondent is engaged in soliciting money through the mail for the product which it is selling. The respondent is accomplishing, and attempting to accomplish, these sales by means of advertisements in publications of wide circulation in this country. In the advertisements the respondent does make the representations which are set forth in paragraph 3 of the complaint. The testimony of record by a competent, qualified, medical expert is that the promises and representations made by the respondent in its advertisement are incapable of accomplishment and that this is a matter of medical fact. The misrepresentations are material misrepresentations because they are used to, and do, persuade persons to act on them by ordering the product being offered for sale. The testimony of the doctor is in conformity with the consensus of informed medical opinion. There is no contrary expert medical opinion evidence in the record. (See U.S. Health Club v. Major , 292 F.2d 665 (C.A. 3, 1961)

In view of the foregoing considerations, it is concluded as a matter of law that the respondent is, as charged, engaged in conducting a scheme or device for obtaining money or property through the mail by means of misrepresentation within the meaning of Section 3005 of Title 39 U.S. Code.

Accordingly, orders in the form attached, should be issued against these respondents.

____________________

*/ This decision was rendered orally at the close of the hearing. It has been edited and transcribed for formal issuance.