In the Matter of the Complaint Against

QUEST RESEARCH
P. O. Box 9669

and
470 E. Paces Ferry Road
P. O. Box 10225
at Atlanta, GA 30319

and

EARTHQUEST
P. O. Box 49024
at Atlanta, GA 30329

and

EARTHQUEST, LTD.
P. O. Box 49087
at Atlanta, GA 30329

and
at P. O. Box 10101
Atlanta, GA 30319

P.S. Docket No. 7/163;

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
SandraC. McFeeley, Esq.
H. Richard Hefner, Esq.
Law Department
U.S. Postal Service
Washington, DC 20260-1100\020

APPEARANCE FOR RESPONDENT:
Christopher S. Barnard, Esq.
John M. Creger, Esq.
Katz, Paller & Land
470 E. Paces Ferry Road
Suite 2000 Atlanta, GA 30363

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of an Administrative Law Judge which holds that, with regard to the sale of its product "CALORIE ELIMINATOR", Respondent is engaged in a scheme for obtaining money through the mail by means of false representations in violation of 39 U.S. Code § 3005.

BACKGROUND

On February 26, 1980, the Consumer Protection Division, Law Department, United States Postal Service, filed a Complaint alleging in Paragraph III that Respondent, by means of advertisements calculated to induce readers to remit money through the mail, falsely represents that:

(a) The CALORIE ELIMINATOR is an effective remedy for obesity.

(b) The CALORIE ELIMINATOR incorporates new scientific developments and principles, differing from all other programs intended to control obesity.

(c) The CALORIE ELIMINATOR contains an ingredient which will cause the body to burn fat.

(d) The CALORIE ELIMINATOR will cause the body of an obese subject to activate 'a fat burning system of natural chemical fat destroyers that can neutralize the effect of all the calories in the food they eat]'

(e) Use of the CALORIE ELIMINATOR will permit an obese subject to '...eat more and weigh less]'

(f) Use of the CALORIE ELIMINATOR will cause an obese subject to experience rapid and dramatic losses of body weight and size.

(g) Use of the CALORIE ELIMINATOR will accomplish spot reduction, (i.e., reduction of the size of particular areas of the anatomy).

(h) An obese person using the CALORIE ELIMINATOR will accomplish the rapid and dramatic decreases in fat, body weight and size without requiring exercise of self-control or will power.

In its Answer, Respondent denied all counts of the Complaint.

A hearing was held before an Administrative Law Judge at which Complainant presented the testimony of Dr. William R. Ayers and Respondent presented the testimony of Dr. James Michael Cooper. Both are medical doctors with substantial experience in the study and treatment of obesity. Both parties introduced exhibits and participated in the examination and cross-examination of the witnesses. On the basis of the testimony presented and the exhibits in the record, the Administrative Law Judge concluded that Respondent makes the representations alleged in Paragraph III of the Complaint, that the representations are material and that they are false. Accordingly, he concluded that Respondent is engaged in activities which are in violation of 39 U.S. Code § 3005.

RESPONDENT'S EXCEPTIONS TO THE INITIAL DECISION

Respondent has stated two exceptions to the Initial Decision, each of which is addressed below.

THE ADMINISTRATIVE LAW JUDGE ERRED IN FINDING
THAT CALORIE ELIMINATOR IS AN EFFECTIVE REMEDY FOR OBESITY

In the Initial Decision the Administrative Law Judge found as alleged in Paragraph III (a) of the Complaint that Respondent falsely represents that "the CALORIE ELIMINATOR is an effective remedy for obesity." This conclusion was primarily based on the testimony of Complainant's expert witness Dr. Ayers. In its Appeal Brief Respondent does not deny that it makes this representation but contends that contrary to the findings and conclusions of the Initial Decision, its falsity has not been established by a preponderance of the evidence. According to Respondent, the testimony of Complainant's expert, Dr. Ayers is speculative and not based on either well known medical and pharmacological texts or personal experience with the product or any like product. On the other hand, Respondent argues greater weight should have been given to the testimony of its expert, Dr. Cooper, because he has had substantial personal experience with the use of similar products and on the basis of that experience testified that CALORIE ELIMINATOR would be effective in assisting dieters to remain on their weight loss programs.

The issue raised by Paragraph III (a) of the Complaint and this exception is not whether CALORIE ELIMINATOR would be effective in assisting dieters to remain on their weight loss programs, but whether it is an effective remedy for obesity. While Dr. Cooper testified that CALORIE ELIMINATOR would assist dieters in remaining on a diet program, he did not testify that CALORIE ELIMINATOR is an effective remedy for obesity. A fair reading of Dr. Cooper's testimony (Tr. 6-68) establishes that he does not believe that it is such a remedy. This is reflected in his testimony describing his treatment of obese patients and the fact that he has not used CALORIE ELIMINATOR nor has he used a similar product as a substitute for a meal as prescribed on the CALORIE ELIMINATOR label (Tr. 23, 39). Clearly, Dr. Ayers does not consider CALORIE ELIMINATOR to be an effective remedy for obesity (Tr. 85-88). Dr. Ayers stated unequivocally that the tablets themselves do not cause weight loss (Tr. 85). Thus, on the basis of the testimony of both experts, the presiding Administrative Law Judge properly came to the conclusion that CALORIE ELIMINATOR is not a remedy for obesity (I.D., COL 4). The record would not support a contrary conclusion.

Respondent's attack on the Administrative Law Judge's assessment of the weight to be given to Dr. Cooper's testimony as compared to the testimony of Dr. Ayers, need not be addressed inasmuch as it has been concluded that there is no serious disagreement between the two experts on the issue raised by this exception. Since, however, this argument appears to be Respondent's principal contention and since, for the most part, Dr. Ayers' testimony was the basis for finding the remainder of the representations alleged in the Complaint to be false, it will be addressed.

The record has been reviewed and no error has been found in the weight given to the testimony of the experts by the Administrative Law Judge. Dr. Ayers is the Medical Director of the Georgetown University Diet Management Program and contrary to Respondent's assertion, is a physician with extensive personal experience in treating obese patients (Tr. 76-79). He was familiar with the ingredients of the CALORIE ELIMINATOR and concluded that they would have no effect on obese persons (Tr. 85-86). Dr. Ayers' testimony represents the consensus of informed medical and scientific opinion in the field of obesity (I.D. p. 15; Tr. 90-91).

While Dr. Cooper is also a physician with extensive personal experience in treating obese patients, the Administrative Law Judge's finding that his testimony was "so tailored that when he gave his answers they were not fully responsive to the questions or entirely relevant to the issues" was proper (I.D. p. 40). A review of the Initial Decision and the record as a whole reveals that the Administrative Law Judge fully considered and properly concluded that greater weight should be given to the testimony of Dr. Ayers.

THE ADMINISTRATIVE LAW JUDGE ERRED IN FINDING THAT THE REPRESENTATIONS FOUND TO HAVE BEEN MADE BY RESPONDENT ARE MATERIAL REPRESENTATIONS BECAUSE THEY ARE OF THE KIND AND CHARACTER WHICH WOULD BE CALCULATED TO PERSUADE READERS TO ORDER ANY PAY FOR RESPONDENT'S PRODUCT

The Administrative Law Judge found in Conclusion of Law 3:

"Representations found to have been made by Respondent are material representations because they are of the kind and character which would be calculated to persuade readers to order and pay for Respondent's product." (I.D. p. 42)

Complainant introduced no evidence on the issue of materiality. Respondent contends that in the absence of evidence on this issue the Administrative Law Judge's conclusion was erroneous. Respondent argues that the materiality of advertising claims "is associated with various factual issues of consumer comprehension and motivation to which only an expert in that field can credibly testify." (Respondent's Brief on Appeal, p. 8).

It has been previously held that lay or expert testimony is not necessary to establish whether representations are made, their effect on the ordinary mind or their materiality. See Standard Research Labs, P.S. Docket Nos. 7/78 & 7/86 (P.S.D. 1980) and cases cited therein. See also Peak Laboratories, Inc. v. United States Postal Service, 556 F.2d 1387, 1389 (5th Cir. 1977). These issues can be decided solely on an analysis of an advertisement. See Peak Laboratories, supra; Kurzon v. United States Postal Service, 539 F.2d 788 (1st Cir. 1976) and Paul Harvey v. United States Postal Service, Docket No. Civ. S-80-5-71RAR (E.D. CA. Feb. 23, 1981). Such an analysis of the advertisements which are the subject of this proceeding inescapably leads to the conclusion that the representations found to have been made by Respondent's advertising are material. Accordingly, there is no merit to Respondent's exception.

CONCLUSION

After consideration of the entire record and Respondent's exceptions, it is concluded that Respondent is engaged in a scheme to obtain money through the mail by means of materially false representations. Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S. Code § 3005 is being issued contemporaneously with this decision.