In the Matter of the Complaint Against

THE NEW BODY BOUTIQUE, INC. also doing business as
THE NEW BODY BOUTIQUE and as
SHRINK-WRAP
at 2105 Lakeland Avenue
Ronkonkoma, NY 11779

THE NEW BODY BOUTIQUE, INC. also doing business as
THE NEW BODY BOUTIQUE
at P. O. Box 2481
Grand Central Station
New York, NY 10163
and at 37 Eleventh Avenue
Huntington Station, NY 11746
and at 7 Norden Lane
Huntington Station, NY 11746
and at 801 Second Avenue Suite 705
New York, NY 10017

P.S. Docket No. 11/95

07/30/82

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
Hilda Rosenberg, Esq.;
Consumer Protection Division,
Law Department,
United States Postal Service,
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
Lee H. Harter, Esq.;
2256 Van Ness Avenue,
San Francisco, CA 94109

POSTAL SERVICE DECISION

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

BACKGROUND

On May 27, 1981, the Consumer Protection Division, Law Department, U.S. Postal Service (Complainant), filed a Complaint which, as amended, alleges that Respondent, expressly or by implication, falsely represents that:

"2. . . . (a) Within 24 hours, the Shrink-Wrap will cause a net loss of 2-3 inches from the user's waist and 2-3 inches from the user's hips.

(b) Within one week, the Shrink-wrap will cause a net loss of 4-6 inches from the user's waist and 4-6 inches from the user's hips.

(c) In accomplishing the loss described in (a) and (b), the Shrink-wrap does not merely shift or compress unwanted weight, but actually rids the body of it.

(d) The weight lost through use of the Shrink-Wrap, will not be regained within several hours.

(e) The Shrink-Wrap tightens and tones muscles in the area of the waist and hips and the user's muscles will remain tight and toned even after it is removed.

(f) The Shrink-Wrap will make use of your body's own heat and concentrate it to melt away inches in areas of specific fluid retention like the waist and hips.'

(g) Shrink-Wrap is an effective means of reducing obesity without diet or extensive exercise."

In its Answer, Respondent denied all of the allegations of the Complaint. At a hearing before an Administrative Law Judge, Complainant presented the testimony of Inspector Gilbert L. Barta and William R. Ayers, M.D. Respondent presented the testimony of Ms. Mindy Berger and Arthur William Faris, Ph.D. 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 2, and that the representations are materially false in violation of 39 U.S.C. § 3005. The parties subsequently filed a joint motion proposing an agreed upon procedure for implementing any false representation order which may be issued.

RESPONDENT'S EXCEPTIONS TO THE INITIAL DECISION

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

EXCEPTION 1

THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT THE ADDRESS AT 801 SECOND AVENUE SHOULD BE COVERED BY A MAIL STOP ORDER.

Respondent argues that any False Representation Order is issued in this case should not include the 801 Second Avenue address since Respondent has not been shown to solicit remittances to that address. According to Respondent, that address is the location of its executive offices and is only used when special handling procedures are required to fill an order.

The Administrative Law Judge found "sufficient mail order contacts" to warrant inclusion of the Second Avenue address in any False Representation Order issued (I.D. at 4). The sufficient mail order contacts found by the Administrative Law Judge relate to a form Respondent sent Complainant advising that an incorrect amount had been remitted for the test purchase of Shrink-Wrap. The form was mailed in an envelope with the return address of The New Body Boutique, 801 Second Avenue, Suite 705, New York, New York 10017 (CX-C-1 - C-7; Tr. 7-12). Upon forwarding the requested amount to this address, Complainant received the Shrink-Wrap (Tr. 14-15).

While the original solicitation sought remittances to another address, Respondlent nonetheless obtained money through the mail at its Second Avenue address through a process initiated with one of the advertisements covered by the Complaint. This first contact containing a false representation is sufficient to establish a violation of 39 U.S.C. § 3005. Kurzon v. United States Postal Service, 539 F.2d 788, 795, n. 8 (1st Cir. 1976). Thus, as the Administrative Law Judge concluded, there was sufficient mail order contact for the Second Avenue address to be included in any False Representation Order issued in this proceeding.

Respondent argues that it was entrapped into filling Complainant's order at the Second Avenue address. However, entrapment is only a defense in criminal cases. Further, this defense is only available when the criminal conduct results from the creative activity of law enforcement officials, and not where, as here, Respondent's normal procedures were employed. Sherman v. United States, 356 U.S. 369 (1958).

The record is persuasive that any False Representation Order issued in this proceeding should include the Second Avenue address. However, Respondent argues, and it is recognized, that such an order would cause inconvenience to Respondent at an address to which it does not regularly direct remittances for its Shrink-Wrap product. Although inconvenience would not normally serve as a basis for withholding the issuance of a False Representation Order, nonetheless, under the facts of this case, a Consent Agreement may serve the interests of the public and be the most appropriate means of handling the Second Avenue address. Accordingly, the parties are afforded ten days from receipt of this decision to enter into a Consent Agreement respecting this address. If a Consent Agreement is not entered into within the ten day period, or such longer period as agreed to by the parties and allowed by appropriate order, a False Representation Order will be issued against the Second Avenue address.

Exception 2

THE ADMINISTRATIVE LAW JUDGE ERRED IN NOT DISMISSING ALLEGATION 3(e) WITH PREJUDICE.

Prior to hearing, Complainant filed a motion to dismiss without prejudice paragraph 3(e) of the Complaint. This paragraph alleges that Respondent falsely represents that "The Shrink-Wrap tightens and tones muscles in the area of the waist and hips and the user's muscles will remain tight and toned even after it is removed." The Administrative Law Judge granted the motion, citing Rule 41(a)(2) of the Federal Rules of Civil Procedure. Respondent argues that the Administrative Law Judge erred in that the cited rule applies only where an entire Complaint is dismissed. Respondent asserts that the Judge's ruling forced it to defend the initial suit while still facing the prospect of a potential later suit. It requests that either the Complaint be amended to include allegation (e) and a decision issued thereon, or that it be dismissed with prejudice.

Dismissal of one count of a Complaint without prejudice has previously been upheld where the only harm alleged by a Respondent is the threat of a future lawsuit. Specialty Sales Co., P.S. Docket No. 11/79 (P.S.D. April 5, 1982), and cases cited therein. Accordingly, Respondent's contention is without merit.

Exception 3

THE ADMINISTRATIVE LAW JUDGE ERRED BY DENYING RESPONDENT'S MOTION TO REOPEN PROCEEDINGS FOR RECEIPT OF ADDITIONAL EVIDENCE.

At the hearing, Inspector Barta testified that he had initiated a second test purchase of Shrink-Wrap, but had not received the product (Tr. 30-31). Several months after the close of the hearing, Respondent moved to reopen the record to ascertain whether or not the second test purchase by Complainant contained additional instructions not included with the first test purchase. The motion was denied by the Administrative Law Judge who found the requested evidence to be cumulative, irrelevant, and not newly discovered (ALJ Order, Nov. 18, 1981).

Respondent argues that the motion should have been granted because inclusion of the additional instructions changed the nature of the product. It further argues that, if the evidence is cumulative, a finding should have been made that the product Shrink-Wrap consists of the garment and the complete set of instructions. Finally, Respondent argues that, as the Postal Inspector had not received the second test purchase by the time of the hearing, evidence of its contents was unavailable and is relevant. Based on these arguments, Respondent renews its motion to reopen the proceeding for receipt of the evidence requested in its motion.

The Administrative Law Judge properly concluded that the evidence Respondent sought to introduce at a reopened hearing was cumulative, irrelevant, and not shown to be newly discovered. The evidence was cumulative of the testimony of Respondent's witness, Ms. Berger, who testified that sometime after August 1981, the revised instructions were included with a typical order (Tr. 135 et. seq.). A finding to this effect could have been made, but it would not have altered the result reached in the Initial Decision, since Respondent's advertising in substance and effect represents that pounds and inches will be lost without dieting through the use of the garment Shrink-Wrap (see discussion infra). The later-received revised instructions which include a diet plan are insufficient to dispel the impression created by the advertisements. Kurzon v. United States Postal Service, supra at p. 795; Complimentary Vacation Club, P.S. Docket No. 10/175, (P.S.D. March 9, 1982).

Furthermore, Respondent's counsel cross-examined Dr. Ayers at length regarding the revised instructions which Ms. Berger stated were included with a typical order (Tr. 135 et. seq.) Therefore, not only was Respondent not deprived of presenting this evidence, but it obtained an expert's evaluation of its relevance.

Exception 4

THE ADMINISTRATIVE LAW JUDGE ERRED IN TAKING TESTIMONY FROM DR. AYERS REGARDING THE EFFECTS OF THE RESPONDENT'S PRODUCT BASED ON YEAR-OLD, STALE INSTRUCTIONS.

Respondent argues that the addition of a revised product insert has so altered the nature of the product that the testimony of Dr. Ayers based on the Shrink-Wrap garment is not applicable. It also argues that the revised insert cures any alleged misrepresentation which may have occurred.

Although Respondent may have altered its product insert to include additional information, it did not revise its advertising in a similar manner. While the product insert includes a diet, Respondent's advertisement in the October 1981 issue of Genesis (CX-M), for example, continues to represent that Shrink-Wrap will "Trim Waist & Hips Scientifically Without Dieting." In order to determine whether a violation of 39 U.S.C. § 3005 has occurred, the product offered for sale and delivered must be the product which an ordinary consumer would understand he was purchasing from his reading of the advertisement. A perusal of Respondent's advertisements makes it clear that Respondent is not promoting weight reduction through diet. Respondent advertises a weight reducing belt, and that is precisely what the Administrative Law Judge looked to in evaluating the truthfulness of the representations made in the advertisements.

Certain of Respondent's advertisements make reference to a "system" (CX-M & N). This reference is insufficient to put the reader on notice of the necessity of a diet plan to achieve the results represented.

Respondent's argument that Dr. Ayers's testimony was based solely on his review of the old instructions (CX-D-2) ignores the fact that the complete set of instructions (RX-1) were received in evidence before Dr. Ayers testified. As noted, Respondent's counsel examined Dr. Ayers thoroughly on these instructions, which, on their face, contradict the advertisement. Accordingly, Respondent's argument is without merit.

Exception 5

THE ADMINISTRATIVE LAW JUDGE ERRED IN AMENDING THE COMPLAINT TO INCLUDE "SHRINK-WRAP" AS A RESPONDENT AT ALL OF THE ADDRESSES, AND THE RECOMMENDED FORM OF THE ORDER IS INCORRECT.

Respondent objects to the issuance of a False Representation Order against the trade name "Shrink-Wrap" at any address other than the Lakeland Avenue address to which it solicits remittances using that name. Complainant, in its reply brief, states it has no objection to limiting the issuance of the False Representation Order in this manner. Accordingly, any False Representation Order issued in this proceeding against the trade name "Shrink-Wrap" will be limited to the Lakeland Avenue address.

EXCEPTION 6

THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT THE ALLEGED REPRESENTATIONS WERE MADE.

Respondent points out that, although further variations exist, the advertisements at issue essentially fall into two formats, which may be characterized as the "New Body Boutique advertisements" (directing remittances to "New Body Boutique", e.g., CX-E) and the "Shrink-Wrap advertisements" (directing remittances to "Shrink-Wrap" e.g., CX-K). Respondent's defenses to the allegations of the Complaint with respect to each format are set out below:

Complaint Allegations (a) & (b)

"(a) Within 24 hours, the Shrink-Wrap will cause a net loss of 2-3 inches from the user's waist and 2-3 inches from the user's hips.

(b) Within one week, the Shrink-Wrap will cause a net loss of 4-6 inches from the user's waist and 4-6 inches from the user's hips."

The New Body Boutique advertisements: Respondent argues that, at most, the advertisements represent that users will experience a total loss of 2-3 inches from both waist and hips in 24 hours and a total loss of 406 inches from both waist and hips in one week. The Administrative Law Judge found the charged representations to be made in statements such as "you can lose 2-3 inches in 24 hours." and ". . . you could lose 2-3 unwanted, unsightly inches from your waist and hips TODAY. 4-6 inches THIS WEEK." (I.D. at 5. See, e.g., CX-E). The cited language amply supports the Administrative Law Judge's finding that the representations charged in paragraphs (a) and (b) are made. Further, even assuming that the advertisements are capable of two meanings, they are still misleading. Rhodes Pharmacal Co. v. F.T.C., 208 F.2d 382, 387 (7th Cir. 1953). Therefore, Respondent's contention is without merit.

The Shrink-Wrap advertisements: The statements cited by the Administrative Law Judge are, with insignificant modification, repeated in CX-K & M. Respondent argues that the testimonials in the Shrink-Wrap advertisements clarify that only a combined loss from both waist and hips was intended by these statements. Regarding CX-K, one testimonial, that of Mr. Fink, offers Respondent some support. It refers to six inches lost in 14 days in bold print, and explains in the smaller print below his "before and after" pictures that only four of those inches were from his waist. Other testimonials in this advertisement support Complainant's position. For instance, Mrs. Cable states that she lost eight inches from her waist and 11 inches from her hips without reference to time. Ms. Smith states that she lost five inches from her waist and six inches from her hips also without reference to time. The foregoing amply support the finding that the representations alleged in Complaint paragraphs 2 (a) and (b) are made. Accordingly, Respondent's arguments are without merit as to the Shrink-Wrap advertisements.

Complaint Allegation (c)

"(c) In accomplishing the loss described in (a) and (b), the Shrink-Wrap does not merely shift or compress unwanted weight, but actually rids the body of it."

The New Body Boutique advertisements: Respondent argues that, since it does not make the representations alleged in paragraphs (a) and (b), it must follow that it does not make the representation alleged in paragraph (c). Additionally, Respondent argues that the allegations in 2 (a) and (b) refer to inches and not weight, further invalidating the allegation in 2 (c). Finally, it argues that the advertisements show Shrink-Wrap as a restrictive body wrap, and that disclosure of its nature combined with the knowledge of most obese people that they must diet or exercise to lose weight support its position that the representation is not made. The Administrative Law Judge found the representation to be made by the statement "Girdles just squeeze it in. Shrink-Wrap takes it off" (CX-A, B, C-3, E, G, J, K, M & N). This statement is contained in at least one advertisement at each address.

The statement cited by the Administrative Law Judge supports his finding. Further, certain advertisements mention weight (CX-F, N & I). Finally, while the advertisements speak generally in terms of inches and not pounds, the reader of ordinary mind would equate inches with pounds. Therefore, the representation is made. Respondent's contention is without merit.

The Shrink-Wrap advertisements: Respondent argues that, as the Shrink-Wrap advertisements are less likely than the New Body advertisements to be understood as making the representations alleged in paragraphs 2 (a) and (b), even less likelihood exists that these advertisements include the representation alleged in paragraph (c). The Administrative Law Judge referred to the language of the Shrink-Wrap advertisements in finding that this representation is made (I.D. at 5). The language referred to supports the Administrative Law Judge's finding. Moreover, CX-K contains testimonials whch specifically reference weight loss, and CX-M refers to loss of inches "without dieting," thereby implying weight loss. Thus, the record includes additional support for the finding that the representation in paragraph 2 (c) is made.

Complaint Allegation (d)

"(d) The weight lost through use of the Shrink-Wrap, will not be regained within several hours."

The New Body Boutique advertisements: Respondent argues that the representation is an implied representation "at best." It further asserts that the average obese person knows that he has to diet or exercise, so the advertisements would not lead such a reader to believe permanent weight loss is represented. Finally Respondent argues again that the advertisements are couched in terms of inch and not weight loss. The Administrative Law Judge found that the complete omission of any specific reference to the temporary nature of the weight loss would lead the ordinary reader to believe that such loss is permanent. The Administrative Law Judge also relied on specific statements in the advertisements, including testimonials, in support of his finding.

The "Skin Diver" advertisements explicitly represent loss of weight (CX-F, H & I). The other New Body advertisements refer to "losing inches," of promise to "melt away inches," "Keep those inches off," or use similar terminology. Such terms connote a lasting loss of inches, which would be equated with a lasting loss of weight in the mind of the ordinary reader. Accordingly, the Administrative Law Judge's finding that "the average reader has no reason to believe that losing pounds and inches through use of Shrink-Wrap is any more temporary than reducing weight by restricting caloric intake . . . or by increasing caloric expenditure . . ." (I.D. at 6) is supported by the record. Respondent's argument is therefore without merit.

The Shrink-Wrap advertisements: Respondent argues that since testimonials in the advertisements refer to weight loss over extended periods of time, a reader would not believe that the weight loss would last for more than several hours. The Administrative Law Judge relied on two testimonials --"what can I say, I'm a new woman" and "the weight began to disappear" --in finding that the representation was made (I.D. at 6). While he cited the latter quotation out of context, other testimonials also refer to weight loss occurring over a period of time. The overall effect of these statements would support, rather than contradict, a representation that the weight losses advertised will not be regained in a matter of hours. As with the other advertisements, the context of the references to lost pounds and inches creates the impression that the losses will be lasting. No other statement in these advertisements dispels this impression. Accordingly, the record supports the Administrative Law Judge's finding that the representation is made. Respondent's arguments are without merit.

Complaint Allegation (f)

"(f) The Shrink-Wrap will 'make use of your body's own heat and concentrate it to melt away inches in areas of specific fluid retention like the waist and hips.'"

The New Body Boutique advertisements: Respondent argues that the representation, which is a direct quote from certain of the advertisements (CX-A, F, H & I), is not material and is merely "puffing." The Administrative Law Judge found the representation to be made since it is a direct quotation. He also found the representation to be materially false.

The representation of the product's effectiveness as a spot reducer would serve as an inducement to purchase Shrink-Wrap and is therefore material. Standard Research Labs, P.S. Doket Nos. 9/63 and 9/64 (P.S.D. Aug. 31, 1981). This representation is a distortion of a material fact. Therefore, it exceeds the limits of acceptable "puffing." United States v. Shelton, 669 F.2d 446, 465 *7th Cir. 1982); Miller v. Premier Corp., 608 F.2d 973, 981 (4th Cir. 1979). Respondent's argument that the representation alleged in paragraph 2 (f) of the Complaint is either puffing or immaterial is without merit.

The Shrink-Wrap advertisements: Respondent argues that Complainant chose to fashion the language of allegation (f) of the Complaint "by directly quoting the New Body Boutique Ad," and since "this language is not used in the Shrink-Wrap ad," the latter does not make this representation. The Administrative Law Judge found that the language of the Shrink-Wrap advertisements was similar to the wording in the New Body advertisements and made the representation alleged in the Complaint.

The language of the Shrink-Wrap advertisement is sufficiently similar in wording to the New Body advertisement to be understood by the ordinary reader to make the same representation. The Shrink-Wrap advertisements state "Now, you can use your body's heat to melt away inches in areas of specific fluid retention like the waist and hips" (CX K & M). In substance and effect this representation is the same as that alleged in paragraph (f) of the Complaint. Accordingly, Respondent's argument is without merit.

Complaint Allegation (g)

"(g) Shrink-Wrap is an effective means of reducing obesity without diet or extensive exercise."

The New Body Boutique advertisements: Respondent argues that its advertisements disclosed that an exercise program is part of the product, and that most purchasers know they must exercise or diet to lose weight. The Administrative Law Judge found that the pound and inch loss claims in the advertisements indicate that Shrink-Wrap is an effective means of reducing obesity, and that the advertisements do not disclose that extensive exercise is required.

The advertisements do not disclose that a diet or extensive exercise is necessary in order to reduce. While some of the advertisements refer to a five-minute exercise program (CX-A, E, G, J, K, M & N), such a program could not be considered "extensive." None of the New Body advertisements make reference to a diet program. The overall tenor of the advertisements is that the losses realized will not require much effort on the part of the user. Such statements as "trim waist and hips overnight without starving" or "melt away inches" or "Shrink-Wrap takes it off . . . fast" are contained throughout and would lead the ordinary reader to form an impression that the promised reductions would occur without much effort. This reinforces the impression that exercise will not be "extensive" and that dieting will be unnecessary. Phrases such as "trim . . . without dieting" in CX-E, G, J, and N and "trim . . . without starving" in CX-A, combined with the total failure to make any mention of the need to diet, would lead the ordinary reader to conclude that dieting is not necessary. Accordingly, the record supports the Administrative Law Judge's finding.

The Shrink-Wrap advertisements: Respondent argues that the advertisement's reference to a five-minute exercise program, and the reference to dieting in one of the testimonials, put the reader on notice that dieting and exercise are required. The Administrative Law Judge found that phrases such as "without dieting" and "without starving" represent that no dieting is necessary. Further, he found that the reference to the five-minute exercise program was inadequate to notify the purchaser that Shrink-Wrap would be effective without "extensive" exercise (I.D. at 7).

The records supports the finding of the Administrative Law Judge. The specific reference to "without dieting" in CX-M and the "without starving" statement in CX-K would reasonably represent to the ordinary reader that dieting is not necessary. Additionally, the reference to a five-minute exercise program is inadequate to establish that "extensive" exercise might be necessary. Accordingly, Respondent's arguments are without merit.

Exception 7

THE ADMINISTRATIVE LAW JUDGE ERRED IN ACCEPTING THE TESTIMONY OF DR. AYERS ON THE EFFICACY OF SHRINK-WRAP.

Respondent argues that the testimony of its witness, Dr. Faris, was more reliable than that of Complainant's witness, Dr. Ayers. The Administrative Law Judge relied on the testimony of Dr. Ayers in reaching his decision. He found Dr. Faris to be less experienced in the field of weight reduction and generally not as reliable as Dr. Ayers (I.D. at 8).

Respondent complains that Dr. Ayers's lack of knowledge about Shrink-Wrap prevented him from competently evaluating it. While conceding that an expert need not test the product before testifying about it, Respondent contends that Dr. Ayers's total unfamiliarity renders his testimony unreliable.

The Administrative Law Judge found Dr. Ayers's testimony to be based on substantial experience in the field of weight reduction (I.D. at 8). As a physician with experience in this area, he testified in accordance with the consensus of informed medical and scientific opinion. Specifically, he analyzed the product's effect of localizing constriction and increasing perspiration on the body's normal functions. The Administrative Law Judge relief on Dr. Ayers's testimony about the way the body functions (I.D. at 8-14). The record supports this reliance. Dr. Ayers's testimony demonstrates a detailed knowledge of the way the body perspires and loses weight. The evidence presented by Respondent does not persuasively counter or rebut this testimony.

Respondent argues that Dr. Ayers's testimony regarding the functioning of Shrink-Wrap has been discredited. Dr. Ayers testified that he did not know what the body surface temperature would be under Shrink-Wrap after fifteen minutes, but that he doubted it would exceed 100 degrees Fahrenheit (Tr. 120). Subsequent testimony established that the temperature went to 110 degrees Fahrenheit during an actual measurement (Tr. 184). Respondent's attempt to discredit Dr. Ayers is ineffective, because Dr. Ayers admitted that he did not know what the temperature would be. Moreover, he stated that heat dissipation in other areas of the body would prevent "sensible sweating" in any appreciable amount (Tr. 120-121). This testimony, in conjunction with his testimony that central or core temperature has 10 times more influence on sweat production than surface temperature (Tr. 90-91), leads to the conclusion that the skin temperature under the Shrink-Wrap has little effect on the body's sweat production. Accordingly, Respondent's additional argument that Dr. Ayers should at least have attempted to determine the skin temperature is unpersuasive.

While Respondent places great importance upon a test conducted by Dr. Faris, it concedes that the test was not statistically significant because only two subjects participated. This lack of statistical significance and Dr. Faris's general hesitancy to equate directly the test results with the truthfulness of the representations led the Administrative Law Judge to place little reliance on these results (I.D. at 9-10). In fact, the Administrative Law Judge found that the test subjects gained back most of the weight they had lost within about an hour, thereby supporting Dr. Ayers's testimony (I.D. at 11).

Respondent points out that Dr. Faris's testimony was based on a test in contrast to Dr. Ayers's testimony, which was primarily theoretical. This difference, it argues, should also tend to discredit Dr. Ayers. As the Administrative Law Judge noted, it is well established that a medical expert may rely on his professional knowledge and experience without having tested the product in question (I.D. at 15, citing Reilly v. Pinkus, 338 U.S. 269 (1949)). As Dr. Ayers established that his testimony represented the consensus of informed medical opinion, the Administrative Law Judge properly relied on it. Standard Research Laboratories, P.S. Docket No. 7/48 (April 4, 1980).

Respondent also argues that Dr. Ayers's testimony that calorie restriction is essential to weight control is rebutted by Respondent's Exhibit 4. That exhibit consists of several pages from DAVID R. LAMB, PHYSIOLOGY OF EXERCISE, RESPONSES AND ADAPTATIONS (1978). Contrary to Respondent's contention, the statement relied on from this exhibit is insufficient to contradict Dr. Ayers's characterization of his testimony as being consistent with the consensus of informed medical opinion. In such matters "It is incumbent on Respondent to present persuasive evidence, in support of [its] position. If it does not do so, it may properly be concluded that such evidence does not exist." Standard Research Laboratories, supra. Respondent has failed to prove that the isolated statement parsed from the cited text disproves the consensus of informed medical opinion. Accordingly, Respondent's arguments are without merit.

Exception 7

THE ADMINISTRATIVE LAW JUDGE ERRED IN CONCLUDING THAT THE ALLEGED REPRESENTATIONS WERE MATERIALLY FALSE AS A MATTER OF FACT.

Respondent once again asserts that Complainant has failed to prove its case because it failed to address the diet plan distributed with the garment since August 1981. This argument has been addressed extensively earlier in this decision.

Respondent's specific defenses to each of the allegations of the Complaint are as follows:

Complaint Allegations (a) and (b)

"(a) Within 24 hours, the Shrink-Wrap will cause a net loss of 2-3 inches from the user's waist and 2-3 inches from the user's hips.

(b) Within one week, the Shrink-Wrap will cause a net loss of 4-6 inches from the user's waist and 4-6 inches from the user's hips."

Respondent argues that the record is unclear whether Dr. Ayers's testimony was based on use of the Shrink-Wrap alone or with the exercise plan (CX-D-2). However, the record shows that Dr. Ayers addressed both types of uses. He stated that use of Shrink-Wrap would not "cause a net loss of two to three inches in a 24-hour period" (Tr. 98) and also that the five minutes of exercise prescribed in Respondent's instructions would have a "very negligible effect if any" on fat loss (Tr. 89).

Respondent's additional argument that the product being marketed is the garment plus instructions has previously been addressed and rejected. In this regard, the reference to the five-minute exercise program is inconspicuously and ambiguously included in the advertisement. As noted, supra, an advertisement capable of two meanings is misleading.

Even assuming that the exercise program is part of Respondent's product, the representations are still false. As noted, Dr. Ayers testified that the exercise program would, at most, have a negligible effect on weight loss and that "many, many" periods of five-minute exercises would be required to begin to approximate the 3500 calories of energy expenditure necessary for the removal of one pound of fat (Tr. 89). Further, the advertisements promised, through the representations specified in paragraphs (a) and (b) of the Complaint, that the product will accomplish spot reducing. However, even Respondent's expert testified that it is universally accepted within his discipline that "spot reducing" does not occur (Tr. 204-205). Similarly, Dr. Ayers stated that water is lost from the entire body, and not from the area where local perspiration is heaviest (Tr. 90-92). Thus, the record establishes that neither fat nor fluid would be lost from local areas through use of the garment.

Finally, when asked by Respondent's counsel whether "depending upon the tone of the user's muscles,. . . the Shrink-Wrap as directed . . . could make a measurable difference of two to three inches over 14 days," Dr. Ayers answered "No." (Tr. 128, emphasis added).

In view of such unequivocal testimony, Respondent's reliance on Dr. Faris's statements that a Shrink-Wrap user could possibly experience the inch loss referred to in paragraphs (a) and (b) of the Complaint is unpersuasive. Specifically, when asked whether "within 24 hours will the Shrink-Wrap cause a net loss of two to three inches from the user's waist," Dr. Faris testified that "I did not measure, so I don't know. I would say that it's possible" (Tr. 207). This response was further qualified in that the question asked by counsel included in its premise that the user was following the directions described in Respondent's Exhibit 1, which includes a 1200 calorie diet (Tr. 207-208). Thus, the answer was in response to user conditions which included not only exercise but diet.

The Administrative Law Judge did not err in discounting the testimony of Dr. Faris. Respondent's contentions are without merit.

Complaint Allegation (c)

"(c) In accomplishing the loss described in (a) and (b), the Shrink-Wrap does not merely shift or compress unwanted weight, but actually rids the body of it."

Respondent argues that weight is lost and not merely shifted through use of the Shrink-Wrap system. The Administrative Law Judge, citing the testimony of Dr. Ayers, found that body weight would not be reduced by using Shrink-Wrap (I.D. at 10). In addition to the testimony relied on by the Administrative Law Judge, Respondent's expert hypothesized that the weight loss found in his test resulted from constriction and a shifting of fluid possibly influenced by the increased metabolism and sweating rate (Tr. 209). As noted, Dr. Ayers testified that a measurable difference of 2 to 3 inches would not occur over 14 days using the garment and the exercise plan (Tr. 128). The record supports the Administrative Law Judge's finding that the representation is false. Respondent's contention is without merit.

Complaint Allegation (d)

"(d) The weight lost through use of the Shrink-Wrap, will not be regained within several hours."

Respondent's argument that representation (d) is true is based on use of Shrink-Wrap with the diet and exercise program (RX-1). Both the effect and relevance of the diet and exercise program have been examined. The Administrative Law Judge found that the Shrink-Wrap user would regain any weight lost within several hours (I.D. at 10-12). The record supports that finding. Accordingly, Respondent's contention is without merit.

Complaint Allegation (e)

"(e) The Shrink-Wrap tightens and tones muscles in the area of the waist and hips and the user's muscles will remain tight and toned even after it is removed."

Respondent argues that this representation is true. However, this allegation was dismissed without prejudice. The propriety of such dismissal has been upheld in this decision. Therefore, the truth or falsity of this allegation is moot.

Complaint Allegation (f)

"(f) The Shrink-Wrap will 'make use of your body's own heat and concentrate it to melt away inches in areas of specific fluid retention like the waist and hips.'"

Respondent again relies on its view of the product as including the exercise program and diet plan, which has previously been rejected. The Administrative Law Judge found that the representation, lifted verbatim from Respondent's advertisements, was false. This finding was based on Dr. Ayers's testimony describing sweat physiology, and the process through which fluid loss is drawn from total body water (I.D. at 12). A review of the record leads to the conclusion that the Administrative Law Judge's finding is correct. Further, the representation is another way of saying that the product will "spot reduce." As discussed previously, spot reducing is not a recognized phenomenon with or without exercise. Accordingly, Respondent's contention is without merit.

Complaint Allegation (g)

"(g) Shrink-Wrap is an effective means of reducing obesity without diet or extensive exercise."

Respondent reasserts arguments previously made, questions the meaning of "extensive," and assigns error to the Administrative Law Judge's discussion of aerobic and anaerobic exercise. The Administrative Law Judge, relying on testimony by Dr. Ayers and Dr. Faris, concluded that the representation is false (I.D. at 12-14).

Most of Respondent's arguments are addressed elsewhere in this decision. Regarding the argument that the meaning of "extensive" is vague, the experts testified that Respondent's exercise program is "mild to moderate" (Tr. 89) or "moderate" (Tr. 225). Thus, Respondent's exercise program is not "extensive." The argument that the Administrative Law Judge was confused in his discussion of "aerobic" versus "anaerobic" exercise (Resp. Brief, at 30-31) is not supported by the record. Dr. Faris testified that anaerobic, as compared with aerobic, exercise was not only of no benefit in weight reduction (Tr. 256), but was not recommended for this purpose (I.D. at 13). In any event, the discussion of aerobic and anaerobic activities is largely irrelevant since Shrink-Wrap has been found to be an effective means of dealing it obesity, with or without the exercise program. Accordingly, Respondent's arguments are without merit.

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 mails by means of materially false representations. Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005, substantially in the form proposed by the parties in their joint motion of March 16, 1982, is issued with this decision.

With regard to mail addressed to 801 Second Avenue, Suite 705, New York, New York 10017, the parties will have 10 days from receipt of this decision in which to enter into a Consent Agreement.