In the Matter of the Complaint Against

MAGA RESEARCH, LTD.
Post Office Box 667
at Lynbrook, NY 11563

P.S. Docket No. 12/101;

07/08/82

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
Thomas A. Ziebarth, Esq.
Brendan J. O'Brien, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
Anne C. Vladeck, Esq.
Frankfurt, Garbus, Klein & Selz
85 Madison Avenue New York, NY 10022

POSTAL SERVICE DECISION

Respondent has appealed from the Initial Decision of an Administrative Law Judge which holds that with regard to advertisements for sale of its "MAGA TECHNIQUE" program for female bust enlargement, Respondent is engaged in a scheme for obtaining money or property through the mail by means of materially false representations in violation of 39 U.S.C. § 3005.

BACKGROUND

On October 16, 1981, the Consumer Protection Division, Law Department, U.S. Postal Service (Complainant), filed a Complaint which alleges that Respondent falsely represents:

"(a) The MAGA TECHNIQUE program will cause a substantial increase in the size of the female user's breasts in a short period of time;

(b) The MAGA TECHNIQUE program will cause a dramatically visible change in the female user's bust almost immediately;

(c) Any woman will achieve a dramatic new bustline in just one week by using the MAGA TECHNIQUE program;

(d) The MAGA TECHNIQUE program will often produce a 1 to 3 inch increase in the female user's bustline measurement in one week;

(e) the DI-AMATHENE capsules are an integral and essential part of the MAGA TECHNIQUE program and make a material contribution to the promised results; and

(f) The breast and bustline improvement claims enumerated in subparagraphs (a) through (e) above have been substantiated by competent medical and clinical tests." (Complaint, para. 3)

Respondent, in its Answer filed November 18, 1981, admitted making the representations alleged in paragraphs (3) (b), (c), (d), and (f). However, it denied making the representations alleged in paragraphs (3) (a) and (3) of the Complaint, and denied that any of the representations are materially false as a matter of fact.

At a hearing before an Administrative Law Judge, Complainant presented the testimony of Theodore B. Van Itallie, M.D., a specialist in internal medicine, endocrinology, and nutrition, and Jack Harrison Wilmore, Ph.D., a specialist in sports medicine and exercise physiology. Complainant also introduced documentary evidence. Respondent presented no witnesses or exhibits but did cross-examine Complainant's witnesses. In an Initial Decision dated February 22, 1982, the Administrative Law Judge found that Respondent makes all of the representations alleged in the Complaint and that the representations are materially false in violation of 39 U.S.C. § 3005.

Respondent's "MAGA TECHNIQUE" program includes "Di-Amathene" capsules which are a vitamin and mineral supplement (CX-1 and 2), and an exercise and posture program described in booklets for a 7-day (CX-3), 21-day (CX-4), and 42-day period (CX-5).

RESPONDENT'S EXCEPTIONS TO THE INITIAL DECISION

Respondent's exceptions are addressed below:

Exception 1

"The Administrative Law Judge Erred in finding that Respondent's advertisement made the representations alleged in paragraphs (3)(a) and (3)(e) of the Complaint."

Paragraph (3)(a) of the Complaint alleges that:

"The MAGA TECHNIQUE program will cause a substantial increase in the size of the female user's breasts in a short period of time;"

With respect to this representation Respondent contends that the advertisement continually refers only to a woman's "bustline", not a woman's "breast." At pages two and three of the Initial Decision, the Administrative Law Judge referred to specific references to "breasts" in the advertisement. There are additional express references to breasts and breast size in the advertisement. There are also references to a woman's "cleavage." In the entire context of the advertisement, an ordinary reader would consider that the advertisement both expressly and impliedly represents that a female user's breasts would be increased in size.

Paragraph (3)(e) of the Complaint alleges that:

"DI-AMATHENE capsules are an integral and essential part of the MAGA TECHNIQUE program and make a material contribution to the promised results;"

The Administrative Law Judge cited statements from the advertisement which specifically refer to the capsules in finding that the advertisement makes the representation alleged in paragraph (3)(e).

Respondent asserts and Complainant concedes, that this alleged representation is not expressly made in the advertisement and must therefore be implied. Respondent contends the representation cannot be fairly drawn from the advertisement; that the advertisement must be considered in its entirety rather than isolated portions; and that Complainant has gone too far in drawing inferences for the reader, citing M.K.S. Enterprises v. United States Postal Service, 459 F.Supp. 1180, 1187-88 (E.D.N.Y. 1978).

As Respondent correctly asserts, to determine whether an ordinary reader would be misled by express or fairly implied representations in advertising, the entire advertisement must be considered. M.K.S. Enterprises, supra; Peak Laboratories, Inc. v. United States Postal Service, 556 F.2d 1387 (5th Cir. 1977); N. Van Dyne Advertising Agency, Inc. v. United States Postal Service, 371 F.Supp. 1373 (S.D.N.Y. 1974). However, its application of that principle here is not correct. Respondent alleges that only 86 words out of a total of 1,302 words in the advertisement relate to the capsules. The effect or impact on the ordinary reader is not made by a quantum measurement of number of words, but rather by determining what that reader would reasonably understand the import of the advertisement to be. In addition to the statements relied on by the Administrative Law Judge, the advertisement includes a mail order coupon for ordering either the 7, 21, or 42-day program, which includes a supply of the capsules for 1, 3, or 6 weeks, respectively. There is no provision for ordering any of the "programs" (exercise booklets) without the capsules. The cumulative effect is to imply that the capsules are an essential part of Respondent's product.

Respondent contends that the advertisement's description of the capsules as a "vitamin supplement" and "nutritional insurance" unequivocally states their purpose. However, the entire advertisement, including the order form, clearly makes the capsules part of the complete "MAGA TECHNIQUE" package for bust enlargement. An ordinary reader would fairly infer that the capsules are "an integral and essential part" of the whole program and that they "make a material contribution to the promised results." In the entire context of the advertisement, an ordinary reader would infer that the "nutritional insurance" provided by the capsules is essential to achieve the results. Accordingly, Respondent's exception is without merit.

Exception 2

"The Administrative Law Judge erred in finding that all of the alleged representations are materially false.

A. The Administrative Law Judge erred in rejecting, without explanation, expert medical testimony which supports Respondent's representations."

Respondent contends the Administrative Law Judge failed to explain his rejection of expert testimony which conflicts with his decision and that this is reversible error, citing Cotter v. Harris, 642 F.2d 700, 707 (3d Cir. 1981); King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980); NLRB v. Anthony Co., 557 F.2d 692, 695-6 (9th Cir. 1977). This proposition is not appropriate for application in this case because there are no substantially or materially differing expert opinions or other conflicting evidence.

Respondent refers to specific testimony by both of Complainant's witnesses in an attempt to show inconsistencies or conflicts with respect to allegations (b) through (d) of paragraph (3) of the Complaint. For example, testimony by Dr. Van Itallie that he would recommend vitamin or mineral supplements in certain circumstances does not take away from the gist of his entire testimony that the Di-Amathene capsules would not make a material contribution to bust enlargement. Basically he testified that the capsules were not sufficient to overcome severe nutritional deficiencies and it was only in such cases that breast tissue could be affected. Furthermore, testimony by Dr. Van Itallie that improved posture would result in a more prominent and more conspicuous bustline does not contradict other evidence that the bustline will not be enlarged by this program. Also, testimony by Dr. Wilmore that the exercises are excellent and that military press exercises can result in growth of the pectoral muscles in men does not contradict the main thrust of his over-all testimony. This was to the effect that although exercises can increase women's strength, the size of their muscles do not significantly increase as the result of exercise in the absence of increased male hormone levels. In this regard, neither does it contradict his testimony that Respondent's specific program would not result in significant gains in muscle growth (Tr. 144).

The evidence of record has been reviewed and there are no significant conflicts or discrepancies in the testimony of the witnesses. The findings of the Administrative Law Judge are based on persuasive evidence in the record. Accordingly, Respondent's exception is without merit.

Exception 2-B

"B. 1. The Administrative Law Judge erred in refusing to strike Dr. Wilmore's entire testimony since he was biased by his performing a study for the Complainant, upon which his opinion testimony was based, the details of which were withheld from Respondent.

2. The Administrative Law Judge erred in crediting testimony of a witness who was neither well-informed nor credible.

3. The Administrative Law Judge erred in relying upon research studies which were irrelevant and fraught with error."

By these arguments, Respondent attempts to have Dr. Wilmore's testimony completely discredited or excluded. The Administrative Law Judge sustained a motion by Respondent to strike all of Dr. Wilmore's testimony which was based on a study he made for Complainant in connection with another case because the study was not available for Respondent to use in its cross-examination. Respondent contends that the remainder of Dr. Wilmore's testimony should be excluded because he was prejudiced by exposure to this secret study and he had an admitted bias against bust developers. Such allegations relate to the weight of the testimony, not its admissibility. Therefore, the Administrative Law Judge properly refused to exclude the testimony. Furthermore, Respondent's allegation that the Administrative Law Judge improperly evaluated the testimony because of prejudice or bias on the part of the witness are not persuasive. The record doe not support these allegations.

Respondent also contends that Dr. Wilmore was neither well-informed nor credible. Respondent refers to certain testimony by Dr. Wilmore in an attempt to support this argument. However, a review of that testimony in connection with the other testimony of Dr. Wilmore which was not stricken from the record does not support Respondent's position. It is true, as Respondent contends, that Dr. Wilmore was not an expert in endocrinology or nutrition. However, he was not presented as such and within his own field of expertise, he was well qualified by education and experience to testify in this proceeding. Further, he has conducted studies and published articles in peer review journals about female muscular strength and body composition (CX 11, 12 & 14). His opinion that females do not achieve the same degree of muscular hypertrophy as males from exercises was based on information obtained from those scientific studies.

In a similar vein, Respondent's references to testimony intended to discredit the witness are misplaced. The statements relied on generally concede the possibility of imperfections in scientific technique or the possibility that new information could change accepted explanations. However, he also testified that, although an explanation for results could change based on increased scientific knowledge, this does not discount the actual results or findings of the study (Tr. 147). This testimony is consistent with the scientific approach and this and other statements of hypothetical possibilities do not detract from the persuasiveness of Dr. Wilmore's testimony.

Respondent also attempts to discredit Dr. Wilmore because he had not heard of a certain body builder or a book recommended by the National Breast Care Foundation. In the absence of evidence that knowledge of the body builder or of the particular book should be known by an expert in Dr. Wilmore's field, his lack of knowledge of the two is irrelevant. Furthermore, that he had never conducted a study of the "MAGA TECHNIQUE" program does not discredit his testimony. His experience and knowledge, including that gained from other studies he had conducted, are adequate to support his testimony. Reilly v. Pinkus, 338 U.S. 269 (1949). Therefore, Respondent's argument that Dr. Wilmore's testimony should be disregarded because he was ill-informed is without merit.

Respondent next contends that Dr. Wilmore's testimony concerning the studies of which he was the author or one of the authors, should be disregarded. Respondent contends that the studies were not conducted properly because although Dr. Wilmore claimed he used a blind technique for control and to avoid bias, he admitted that he knew which subject was in which group (Tr. 86-87). However, that testimony concerned the study which was not a part of this proceeding. It did not relate to his experience and procedures in the other studies.

Respondent has referred to other testimony of Dr. Wilmore in an attempt to discredit the studies. However, a review of that testimony with the studies and other evidence in the record does not support Respondent's position. That the studies were primarily directed at the strength of female athletes, did not deal with bust enlargement only, and included body measurements where there were admitted difficulties of control, does not discredit Dr. Wilmore's testimony or the studies. The Administrative Law Judge's reliance on his testimony was proper. Respondent's contentions in this regard are without merit.

Exception 2-C

C. It was error for the Administrative Law Judge to draw an inference from Respondent's failure to offer witnesses."

Respondent contends that application of the "Adverse Inference Rule" is inappropriate because complainant had the burden of proving the falsity of the alleged representations. Although Complainant, in its proposed conclusions of law (No. 8, p. 17), urged the application of an adverse inference because of Respondent's failure to produce contradictory evidence, the Administrative Law Judge did not adopt this proposal or draw such an inference. His finding that the alleged representations were materially false was "based largely upon the unrebutted testimony of Complainant's two expert witnesses" (I.D., p. 4). that he referred to the testimony as being unrebutted did not constitute the drawing of an adverse inference. It only signified there was not contradictory evidence in the record. Cf., The American Home Income Association, P.S. Docket No. 11/78 (P.S.D. March 15, 1982), and cases cited therein. The Administrative Law Judge simply found that the testimony establishing a prima facie case against Respondent had not been rebutted. Respondent's exception is without merit.

Exception 3

The Administrative Law Judge erred in recommending the issuance of a fraud order because the medical testimony demonstrated that the field is too uncertain."

Respondent contends that there was conflicting medical testimony in this case and, therefore, the false representation order should not be issued. This contention is not supported by the record. Minor inconsistencies in the testimony of the two witnesses in this case are not sufficient to discredit their testimony or establish a conflict. There was sufficient evidence to establish a prima facie case that Respondent's advertisement violates 39 U.S.C. § 3005. Because the prima facie case was not overcome by other evidence, it is appropriate to issue the false representation order. Additional contentions made by Respondent are simply not supported by the record, and 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 mail by means of materially false representations. Accordingly, Respondent's appeal is denied. A remedial order under 39 U.S.C. § 3005 is being issued with this decision.