P.S. Docket No. 19/185
April 25, 1985
In the Matter of the Complaint Against
LEO DABOUB,
220 Nice Lane, #209
Newport Beach, CA 92663-2603
SANDRA BROOKS,
1666 Newport Blvd.
Costa Mesa, CA 92627-3717
NUTRITIONAL RESEARCH,
177-F Riverside Drive
Newport Beach, CA 92663-4080
AMERICAN DIET ASSOCIATION,
1666 Newport Blvd.
Costa Mesa, CA 92627-3717
VITA-HEALTH RESEARCH,
369 E. 17th Street,
Costa Mesa, CA 92627-3717
and 1011 Brioso Drive,
Costa Mesa, CA 92627-3717
and 177-F Riverside Drive n1
Newport Beach, CA 92663-4080
By Order dated December 3, 1984, a motion by Complainant was granted
allowing Complainant to make appropriate amendments to the complaint
and to the proposed Mail Stop Order to reflect the addition to the
respective documents of this new address of Vita-Health Research.
P.S. Docket No. 19/185
04/25/85
Duvall, William A. Chief Administrative Law Judge
APPEARANCES FOR COMPLAINANT:
Hilda Rosenberg, Esq.
Consumer Protection Division
United States Postal Service
475 L'Enfant Plaza W., S.W.
Washington, DC 20260-1112
James A. Harbin, Esq.
United States Postal Service
Western Region
850 Cherry Avenue
San Bruno, CA 94098-0100
APPEARANCE FOR RESPONDENT:
Charles F. Abbott, Esq.
2230 North University Parkway, 7-G
Provo, Utah 84604-1509
INITIAL DECISION
I. Statement of the Case
In a complaint filed on September 26, 1984, the General Counsel of the United States Postal Service (Complainant) alleged that the Respondents, under the names and at the addresses appearing in the caption hereof, are engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of 3005, Title 39, United States Code.
The names of the Respondents (hereinafter, sometimes, Respondent), the names of the products which Respondent is alleged to be selling, and the benefits Complainant alleges Respondent claims to be derived by the purchasers and users of the products are, in general, as follows:
Advertised Purpose
Name Product Name of Product
Leo Daboub, under Orgi-nine,
the names Nutri- Fast-Trim (a/k/a
tional Research, the Sandra Brooks Weight or fat
American Diet Diet Program), and reduction and
Association, and Energetic Contour other benefits
Vita-Health Research Creme
Sandra Brooks, in Sandra Brooks
association with Diet Program Weight or fat
the American Diet (hereinafter Fast- loss and other
Association Trim) benefits
Complainant alleges that in the sale of the above products Respondents utilize a variety of advertisements which appear in publications of general circulation, or which are sent directly to consumers through the mail. It is alleged that the advertisements contain solicitations of remittances of money for the products, which remittances are to be sent through the mail to the respective addresses.
Complainant charges that Respondent makes certain specific representations as to the results that will occur to those persons who use the products as directed, and that these representations are made expressly or by implication, by affirmative statements, or by omission. Examples of some of the advertisements alleged to contain these representations are attached to the complaint as Exhibits 1 through 4 (Appendices A through D to this decision). Complainant alleges that the representations charged are materially false as a matter of fact, and requests that mail-stop orders and cease and desist orders be issued against Respondent pursuant to 39 U.S. Code 3005. The questions as to whether the representations are made, their materiality, and their truth or falsity will be discussed and decided later in this decision.
In a timely-filed Answer, Respondents:
1. Aver that Sandra Brooks is not a partner or a joint-venturer of any of the other Respondents, and that she does not have any interest in any of the other Respondents' enterprises. It is stated that Sandra Brooks is a private individual who had lost weight through a program she developed and from whom the other Respondents purchased the right to market said weight-loss program through the mails, together with the right to use her name and testimonial in connection therewith;
2. Admit that all Respondents, n2 except Sandra Brooks, are engaged in a mail order business in which they seek money or property through the United States mails. It is denied that the United States Postal Service has jurisdiction over this matter under 39 U.S.C. 3005;
n2 It is stated in the Answer that respondents Leo Daboub, Nutritional Research, American Diet Association, and Vita-Health Research will thereafter be referred to in the Answer as "Daboub". That group designation is adopted herein unless the contrary is indicated.
3. Admit that Leo Daboub offers for sale to the public various "health related" products, including products advertised to reduce weight and/or fat, and admit that Mr. Daboub resides at the address shown under his name in the caption hereof;
4. Admit that Nutritional Research, American Diet Association, Vita-Health Research are fictitious business names used by Leo Daboub in his mail order business, and that Leo Daboub directs that remittances be sent through the mails to those names at the addresses shown in the caption;
5. Admit that portion of paragraph 4 of the Complaint alleging that Sandra Brooks is an individual, but deny (1) that she is doing business in association with the American Diet Association; (2) that she offers for sale to the public the Sandra Brooks Diet Program; and (3) that Appendix B hereto is an advertisement used by Ms. Brooks in such activity.
6. Admit that Leo Daboub has offered for sale to the public the products Orgi-nine, Fast-Trim, and Energetic Contour Creme, which products have been advertised to effect weight reduction. Respondents further admit that Appendices A through D hereto have appeared in publications of general circulation;
7. Admit that in his advertisements for Orgi-nine, Leo Daboub directs or has directed customers to mail orders and payments for the product to Vita-Health Research at 369 E. 17th Street, Costa Mesa, CA 92627-3717; at 1011 Brioso Drive, Costa Mesa, CA 92626-3717; and at 177-F Riverside Drive, Newport Beach, CA 92663-4080;
8. Admit that Orgi-nine tablets bear labels which state, among other things, that the tablets contain the amino acids L-Arginine and L-Ornithine in the amounts, respectively, 400 mg. and 200 mg., but deny (a) that users are directed to take one capsule at meal times and at bedtime and (b) all other allegations in paragraph 7 of the Complaint;
9. Deny that Respondents make in Appendix A hereto, or elsewhere, the representations with respect to Orgi-nine set forth in subparagraphs a through k of paragraph 8 of the Complaint (discussed later herein);
10. Admit only that all Respondents, except Sandra Brooks, through advertisements for Fast-Trim direct or have directed customers to mail orders and payment for the product to American Diet Association at 1666 Newport Blvd., Costa Mesa, CA 97627-3717; and deny the remainder of paragraph 9 of the Complaint;
11. Admit that Fast-Trim diet tablets are labeled, among other things, to contain 25 mg. of Phenylpropanolamine HCL to be taken before each meal. The Fast-Trim "water" pills are labeled to contain 150 mg. Uva-ursi, 150 mg. Buchu Leaves, with Parsley, Asparagus and Corn Silk powder. It is admitted that the tablets are accompanied by a circular containing a diet, and a brochure entitled "From Fat to Fabulous]" by Dr. Sandra Brooks, recommending an eating plan and a "mental conditioning technique";
12. Deny that Respondents, Daboub and Sandra Brooks, by means of, but not limited to, Appendices B and C to this decision make the representations concerning Fast-Trim/Sandra Brooks Diet Program set forth in subparagraphs a through g of paragraph 11 of the Complaint (discussed later herein);
13. Admit that through advertisements for the Energetic Contour Creme, Respondents Leo Daboub, but not Sandra Brooks, have directed customers to mail remittances to Nutritional Research at 177-F Riverside Drive, Newport Beach, CA 92663-2603 and to American Diet Association at 1666 Newport Blvd., Costa Mesa, CA 92627-3717;
14. Deny that the Energetic Contour Creme treatment consists of the application of the creme to a part of the body, wrapping the body area with plastic kitchen wrap, and waiting 1 hour before removing it; deny, further, that the instructions recommend drinking six to eight glasses of water every day;
15. Deny that by means of advertisements for the Energetic contour Creme, such as, but not limited to, Appendix D hereto, Respondents Leo Daboub, make the representations set forth in subparagraphs a through e of paragraph 14 of the Complaint (discussed later herein); and
16. Deny that the advertising representations pertaining to the products Orgi-nine, Fast-Trim and the Energetic Contour Creme as set forth in paragraphs 8, 11, and 14 of the Complaint are materially false as a matter of fact.
Respondent urges that mail-stop orders and cease and desist orders, in the form attached to the complaint, or in any other form, not be issued against the Respondents, and that the Complainant take nothing by its complaint.
On December 12 through 15, 1984, the issues formed by the above Complaint and Answer were tried in Los Angeles, California. Both parties were represented by counsel who participated in examination and cross-examination of witnesses and in the introduction of evidence. Written proposed findings of fact, conclusions of law and supporting arguments were filed by both parties on February 7, 1985.
II. The Witnesses
Four witnesses were called by the Complainant and they will now be identified in substantially the sequence in which they testified.
A. Postal Inspector Ralph Cook conducted the investigation in this case.
B. Dr. Robert Harris graduated Boston University in 1970 with a Bachelor of Science degree. He received his M.D. degree in 1975 at the Jefferson Medical College of Philadelphia. After a one-year internship at Metropolitan Hospital in New York City he took one year of further post-graduate work in physical medicine and rehabilitation at Albert Einstein Medical College in New York City. He practiced general industrial medicine from January 1978 until the Spring of 1982, since which time he has engaged in private general practice, with emphasis on nutritional medicine. From January 1983 to December 1983 he was located in Stafford Springs, Connecticut. His practice now is in Mt. Kisko, NY. In general, he treats geriatric patients with degenerative diseases. He rarely has patients come to him for treatment of obesity as their primary complaint, but he incorporates diet and lifestyle changes into his general practice for degenerative diseases, and these measures often result in normalization of body weight. (Tr. 22-24)
C. Daniel Leroy Gilliland, 9400 Culver Court, No. 8, Fountain Valley, CA is a sales manager for a security firm in Orange County, CA. (Tr. 99-100) He did not finish high school, but he took a high school equivalency test at El Camino College. In addition, he attended a 24-week course in hypnosis at an entity identified by him as the Inner Mind Institute at Costa Mesa, CA. (Tr. 147-148)
D. Dr. Ernst J. Drenick received the M.D. degree at New York University College of Medicine, New York, NY, which he attended 1938-1941. He accepted a rotating internship at St. Vincent's Hospital, New York City, January-December 1942; a Residency in Internal Medicine at the latter hospital, January-July 1943; a Residency in Pulmonary Diseases at Lenox Hill Hospital, New York City, July 1943-October 1944; and pursued further graduate studies and training in Internal Medicine and Basic Sciences in 1946-1947 at New York Medical College. Dr. Drenick was a Captain in the United States Army Medical Corps, October 1944-September 1946; he was an Adjunct Physician, Pulmonary Disease at Lenox Hill Hospital, 1947-1949; since 1949 he has been Assistant Chief, Department of Medicine, Veterans Administration Hospital, Los Angeles, CA, and, since 1960, he has been Chief, General Medicine Section, Medical Intensive Care Unit and Internal Medicine Clinic at the Veterans Administration Hospital. In 1950, Dr. Drenick was certified as a Diplomate of the American Board of Internal Medicine; he is a member of at least eight professional societies and he is a reviewer for ten professional publications, including, among others, the New England Journal of Medicine; Gastroenterology; Metabolism; Journal of Laboratory and Clinical Medicine; International Journal of Obesity; and Obesity and Bariatric Medicine. In addition to the Postal Service, he has, and does, serve as a consultant to the National Institutes of Health, the Food and Drug Administration, Federal Trade Commission, various courts of the United States and Courts of the State of California on matters relating to obesity and its treatment, including dietary, nutritional, and surgical measures. Dr. Drenick has authored or co-authored 78 scientific and medical papers for publication in peer-review professional publications, or for presentation to professional meetings; he has contributed 13 chapters to various medical textbooks relating to obesity, its causes, results, and treatment; 39 abstracts in various journals and other medical publications; and 15 short communications, editorials, case reports and letters. The majority of Dr. Drenick's writings have been on obesity or obesity-related subjects. (CX-85)
More particularly insofar as this matter is concerned, he has performed and reported on research, tests, and studies involving Amino acids. (CX 85, items 15, 21, 23 on p. 5; item 1 on p. 13 and item 38 on p. 16.) One of his studies involved the examination of the effects on metabolic processes of administering massive, pharmaceutical doses of growth hormone. (Tr. 321) Through discussions with his patients, advertisements in newspapers, and casual visits to drug stores Dr. Drenick is well aware of popularly known weight loss products obtainable without prescription through the mail and over the counter. (Tr. 292) He is also well aware of the controversy relating to the use of Phenylpropanolamine hydrochloride in conjunction with a reduced-calorie diet. (Tr. 339-345)
Dr. Drenick keeps himself well informed on the thinking in the area of obesity by attending medical meetings at which presentations are made by himself and by other experts, with many of whom he maintains close personal contact. In order to perform effective research one must be, as Dr. Drenick is, familiar with the work of other investigators and with the up-to-date literature in the particular field. (Tr. 289-90)
Dr. Drenick is a full professor at the University of California at Los Angeles (UCLA) School of Medicine. (Tr. 285; CX-85, p. 1) For the past twenty years, Dr. Drenick has directed a research program at the Veterans Administration Hospital, directed toward the investigation of the causes of obesity and to the discovery of successful treatments for this serious problem. (Tr. 286, 287) Dr. Drenick treats approximately 200-300 obese patients per year at the VA Hospital and at a UCLA clinic. (Tr. 285, 287, 420, 998-1001) In addition to his regular teaching responsibilities regarding house staff at the VA Hospital, and second- and third-year medical students attending UCLA, he also gives special lectures in the fields of nutrition and obesity. (Tr. 287)
Dr. Drenick testified that his opinions on the validity of the advertising representations for Respondents' three products are in accord with the consensus of informed medical opinion, except that there is now no such consensus in regard to the effectiveness of PPA in the management of obesity. (Tr. 336, 379, 385, 502) He specifically testified that each advertising claim alleged in the Complaint was false. (Tr. 304, 306, 307, 325, 333-336, 341, 377--379, 382-384, 990-991, 995)
Respondent's expert witness readily and unequivocally agreed that Dr. Drenick is recognized as an expert in the field of obesity. (Tr. 625)
E. Jorge M. Lima, M.D., 254 Vista Del Monte, Anaheim Hills, CA 92807 was called as a witness for Respondent. Dr. Lima was born in Manaus, Brazil, but he now resides in the United States. Dr. Lima received the M.D. degree in 1953 from the College of Medicine of the University of Rio de Janeiro, Brazil. He served an internship at Moncorvo Filho Hospital, Rio de Janeiro in 1951-1952. In 1954-1955, he did post-graduate study at the Catholic University of Rio de Janeiro. In 1955-1957, he was the Director of St. Judas Thadeu Hospital; 1956-1958, he was Assistant Professor of Gastroenterology at St. Gerald Hospital; and 1958-1959, he was the Director of Medical Services for U. S. General Electric Company. All of the last three positions were located in Rio de Janeiro, Brazil. He has been a consultant to the World Health Organization, Geneva, Switzerland (1978-79); a member of the Advisory Council Board of California State University at Fullerton, California (1975-78); Vice-President of the Brazilian Pharmaceutical Industry Association, Rio de Janeiro (1967-69); and a member of the Board of Medicine of Rio de Janeiro (1954-1973). From 1957 to the present, Dr. Lima has had an extensive career in the field of product development, including his own consulting service, J. M. Lima, Inc., Medical and Pharmaceutical Consultant Corporation, Anaheim, CA, which has been in operation since it was started in 1982. In the consulting phase of his activities he has served such clients as Viratek, Corina, CA; ICN Pharmaceuticals, Inc., Corina, CA, Geneva, Switzerland, and Sao Paulo, Brazil; Johnson & Johnson, Sao Paulo, Brazil; Glaxo Group (Great Britain) Rio de Janeiro; Boehringer Ingleheim (West Germany), Sao Paulo; and Ciba-Geigy (Switzerland), Rio de Janeiro. Between 1954 and 1971 Dr. Lima attended several courses related to product development, including courses in business administration, clinical trials planning, scientific planning and gastroenterology. Dr. Lima has given lectures, 9 out of 12 of which were on anti-viral therapy, compounds, agents, and drugs, and the remainder dealt with drugs, and product development and marketing. These lectures were delivered at hospitals, professional meetings, and universities in Peshawar, Islamabad and Karachi, Pakistan; Khartum, Sudan; Moscow, Russia; Kingston, Jamaica; Manila, Philippines; Sao Paulo, Brazil; Mexico City; Fullerton, CA; Zurich, Switzerland; and Joao Pessoa, Brazil. His professional memberships include the Brazilian Societies of Gastroenterology, Infectious & Tropical Diseases, and Physiology and Pharmacology. Dr. Lima's editorial experience includes service as Director and Editor of the Journal Brasileiro de Medicine (1963-1965); and as member of the Editorial Board of the Medical Journal "O Hospital". His publications, three out of four of which relate to anti-viral subjects, have appeared in the Annals of the International Congress of Gastroenterology, Sao Paulo, Brazil (1954); Abstracts of the 10th International Congress of Chemotherapy, Zurich, Switzerland, September 18-23, 1977, pg. 399 (co-author) and at p. 351 (co-author); and he has authored twelve (12) unspecified medical publications, none relating to obesity, in the Portuguese language. (Tr. 611, 619, RX-A)
While recognizing Dr. Lima's qualifications, and with all due respect to him, it became apparent as the hearing progressed that he was entering what, for him, is an unaccustomed area of medicine in which he was not comfortable and in which his views were seriously at variance with those of the physician whom he recognized as the expert in obesity. Gastroenterology in which Dr. Lima specializes, is the branch of medicine which relates primarily to the functions and disorders of the stomach and intestines. Dr. Lima did say that in Brazil, France, and in some other countries obesity is not an area in which one can specialize and be recognized as an expert. The result is that obese and less overweight people are treated by internists, gastroenterologists and endocrinologists. He has not treated patients on a regular basis for over ten years. (Tr. 601, 657)
Dr. Lima has been living in the United States for the last ten years, but he is not licensed to practice medicine here. (Tr. 595) During this time, he has treated "about 10" patients per year on his annual visits to Brazil. (Tr. 598) Although he was trained as a gastroenterologist, and specialists in this area do treat obesity, gastroenterology in Brazil emphasizes the treatment of infectious and parasitological disease. (Tr. 567, 578, 639) Obesity is simply not a major medical problem in Brazil for which, alone, persons seek the advice of a physician. (Tr. 600, 610, 625, 637)
He does not attend professional meetings where developments in obesity are discussed. (Tr. 625) He had not attended the meetings of the Brazilian Society of Gastroenterology for ten years, though he lists himself as a member of that society on his curriculum vitae. Other than the Society of Gastroenterology, he no longer belongs to any professional societies. (Tr. 592) He does not regularly follow the literature in the field of obesity, but instead, he researches a specific topic when he is involved in a case such as this one. (Tr. 604, 606, 618-619, 620) He has not himself performed any research into the effects of amino acids, phenylpropanolamine, or growth hormone on weight loss nor has he conducted any studies on the products, Orgi-nine and Fast-Trim. (Tr. 615-616) In 1954, he presented one paper, unrelated to obesity, before the Congress of Gastroenterology. (RX-A, p. 4; Tr. 606-607) Dr. Lima has never published any scientific paper in the area of obesity, nor has he ever lectured on the subject. (Tr. 611, 619) His work over the past ten years has involved, almost exclusively, anti-viral drugs. (Tr. 569, 619; RX-A, pp. 2-4)
There are some disturbing weaknesses and inconsistencies in the testimony of Dr. Lima. Some of these instances are now stated.
1. On several occasions he admitted that he did not know whether the sources on which he relied were reputable or whether a publication on a particular subject was regarded as authoritative or was generally relied upon by reputable members of the medical profession. (Tr. 667, 701, 757, 875-876)
2. During his direct examination, he had testified that PPA increased metabolism by 10%. (Tr. 833) When he was asked on cross-examination for authority for his statement, he cited a text by Goodman and Gillman. He was then asked to produce the portion of the text upon which he had relied. Upon further questioning, he conceded that the material that he produced did not support his conclusion, that it did not even involve PPA, and furthermore, that this was the only source he knew of to support his conclusion. (Tr. 860-861)
3. Dr. Lima listed several sources when he was asked what studies he had relied on to support the proposition that amino acids will produce sufficient levels of growth hormone to mobilize fatty acids from fat stores. Yet, when Complainant's counsel reviewed each article with him it became apparent that these articles did not, in fact, bear out Dr. Lima's assertion. (Tr. 908-914)
4. When questioned on cross-examination concerning what he had relied upon to conclude that Fast-Trim users would lose over four pounds per week Dr. Lima, at first, referred to data from very low-calorie diets. (Tr. 862-863; RX-O, pp. 1 and 2) Upon further questioning, however, Dr. Lima subsequently conceded that he had no authority to support his position. (Tr. 874)
5. Dr. Lima testified that most of Respondent's advertising claims were true and that his testimony reflected the consensus of scientific opinion. Yet, he conceded that none of Respondent's exhibits or any of the references he cited in his memorandum opinion concerning Orgi-nine, RX-N, supported his statement that ornithine has twice the effect of arginine in terms of growth hormone release. (Tr. 898) When he was called upon, but was unable, to produce or recall what the reference was, he cited "common knowledge" as his authority. Dr. Lima testified that it was a well-established fact that ketones suppress appetite. (Tr. 768) Later testimony by Dr. Drenick was to the effect that Dr. Lima's statement about ketones is now out-dated and is no longer accepted by the medical profession as true because it has been disproved. (Tr. 968-969)
There are numerous other instances in the record of situations similar to those just described, but these are sufficiently numerous and illuminating to convey the general idea of the tenor and quality of the testimony of Respondent's expert witness.
III. The Status of Ms. Sandra Brooks
It will be recalled that it is stated in the Answer that Sandra Brooks is not a partner or a joint-venturer of any of the other Respondents, and that she does not have any interest in any enterprises of the other Respondents. (Ans., par. 1).
Daniel Gilliland, the second witness called by Complainant, met Ms. Brooks in the Fall of 1982 while he was attending a hypnosis course at the Inner Mind Institute. He completed this course approximately in March 1983. In the interim the two had become acquainted and they talked with each other a couple of times a week, on the average. Mr. Gilliland purchased from Ms. Brooks the right to use the name "Hypnotonics" and she was going to do some public relations appearances for him in connection with his hypnosis business. In pursuit of this business, Mr. Gilliland leased the building in which Ms. Brooks was also engaged in the business of hypnosis. However, Mr. Gilliland sublet office space to Ms. Brooks in which she continued in business for approximately a year. During the time in which they were in the same building, they saw each other and talked four or five times a week. He characterized their relationship as being one in which they were friendly and, also, one in which they had similar interests because they were in separate, but the same kind of businesses. The point is that Mr. Gilliland and Ms. Brooks met, became friends who engaged in the same or a similar business, and discussed various matters of mutual interest from time to time. (Tr. 100-103)
On one occasion Ms. Brooks told Mr. Gilliland that she had lost weight through self-hypnosis and a very severe crash-fasting program in which she would fast for three days and then eat one day. Ms. Brooks had to modify her starvation diet because she encountered health problems for which hospitalization was required. (Tr. 109) She said that she had developed the program by which she lost weight. (Tr. 110)
During the time in which Mr. Gilliland and Ms. Brooks were acquainted as has been described she was at one time dissatisfied with her weight, which had risen from about 120 pounds to 135-140 pounds. She said she had tried some diet pills but that they were ineffective, so she adopted other measures. She began a program which included running along the beach, followed by a period of time in which she wrapped herself in saran wrap and lay on her patio in the sun. She also restricted her diet to teas and small amounts of fish and poultry. (Tr. 110-111, 406) Ms. Brooks told Mr. Gilliland that by following these procedures, she lost 15-20 pounds. (Tr. 741)
On at least one occasion, Mr. Gilliland was in the office of Ms. Brooks at a time when he saw the mock-up of an advertisement for Fast-Trim. Ms. Brooks told him that she had the authority to modify the advertisement, and, in fact, at the time of his visit she was making some marks and some notes of some other modifications she wanted made in the advertisement. Ms. Brooks also assisted in the marketing of Fast-Trim in the areas of public relations and personal appearances. Mr. Daboub was in overall charge of the marketing and sales programs for Fast-Trim, but in these efforts he worked jointly with Ms. Brooks. (Tr. 121-123)
Ms. Brooks told Mr. Gilliland that she was compensated to the extent of one and one-half (1 1/2) percent of the profit for participation in the production and merchandising of Fast-Trim. She indicated to Mr. Gilliland that if the sale of Fast-Trim should prove to be a good financial success, she might receive three percent, or more, of the profit. The marketing program was to include running full-page ads in papers across the United States, filling the orders as they should come in, and, in addition, there would be direct mail advertising of the product. (Tr. 123-125)
Later, Mr. Gilliland asked, and was permitted, to resume the stand in order that he might "clarify" some of his earlier testimony. (Tr. 708) He affirmed his prior testimony and interview statements concerning the loss of 15 or 20 pounds by Ms. Brooks by jogging, using liquid fasting, herb teas and saran wrap (Tr. 741); he said he did not recall that Ms. Brooks had told him that Leo Daboub's products were not efficacious in terms of producing weight loss. (Tr. 742) He said that the last statement was made at a party at Ms. Brooks' home at which her son was a guest. Mr. Gilliland testified that it was possible that the statement in question had been made by the son of Ms. Brooks, rather than by the latter. (Tr. 743) Mr. Gilliland also retracted the statement that Ms. Brooks said that Daboub would market a product until it loses its appeal to the public, at which time Daboub would start to sell a new product to the same people. (Tr. 744) He said that Sandra Brooks told him that she originally lost her weight by going on a starvation diet and by utilizing hypnosis. (Tr. 751) He added, however, that she never said she lost all of her weight by starvation, because she encountered physical complications requiring hospitalization so she modified her diet. (Tr. 752) Except for the foregoing matters, the principal portions of the testimony Mr. Gilliland had given two days earlier remained substantially unchanged.
The foregoing testimony establishes that Ms. Brooks designed the Fast-Trim program in whole or in part; she does or has collaborated and advised with Mr. Daboub in the marketing of the program; she does or has assisted in the marketing by public relations activities and by making personal appearances; in the marketing of Fast-Trim, she retains, and exercises, the right to modify advertising copy; and she has or has had a financial interest in the success of the sales efforts in behalf of the product. The evidence summarized in this paragraph makes it clear that Sandra Brooks is or has been a participant in the production and marketing of Fast-Trim; that she has or has had a pecuniary interest in the success of the sale of the product; and that she properly is a Respondent in all parts of this proceeding which relate to Fast-Trim.
IV. Findings of Fact
A. Preliminary
1. Respondents Leo Daboub, Nutritional Research, American Diet Association, and Vita-Health Research admit that they are engaged in a mail order business in which they seek money or property through the United States mails. (Ans. par. 2)
2. The United States Postal Service has jurisdiction of this matter under 39 U.S.C. 3005.
3. Respondent Leo Daboub admits that he is an individual who offers for sale to the public various "health-related" products including products advertised to reduce weight and/or fat. Mr. Daboub resides at 220 Nice Lane, #209, Newport Beach, CA 92663-2603. (Ans. par. 3)
4. Respondents Nutritional Research, American Diet Association and Vita-Health Research are fictitious business names used by Leo Daboub in his mail order business. Respondent Daboub directs that remittances be sent through the mails to these names at the addresses listed in the caption. (Ans. par. 4)
5. (a) Sandra Brooks is an individual of whom it is said that she had lost weight through a program she developed and from whom the other Respondents purchased the rights to market said weight loss program through the mails, together with the right to use her name and testimonial(s) in connection therewith. (Ans. pars. 1 & 5)
(b) Sandra Brooks is a Respondent in this proceeding insofar as it relates to the product herein called Fast-Trim.
6. Respondent Leo Daboub admits that he has offered for sale to the public the products Orgi-nine, Fast-Trim and Energetic Contour Creme, and that these products have been advertised to effect weight or fat reduction. The advertisements attached to the Complaint as Exhibits 1, 2, 3, and 4 thereto (CX Nos., respectively, 33, 58 p. 1, 49, and 19, which are attached hereto as, respectively, Appendices A, B, C, and D) have appeared in publications of general circulation. (Ans. par. 6)
7. It is admitted that through his advertisements for Orgi-nine, Respondent Daboub directs or has directed customers to mail orders and payments for the product to Vita-Health Research at 369 E. 17th Street, Costa Mesa, CA 92627-3717; at 1011 Brioso Drive, Costa Mesa, CA 92627-3717; and at 117-F Riverside Drive, Newport Beach, CA 92663-4080. (Ans., par. "6" (sic, but should be "7"), p. 3, 1.6 of Ans.); see, also, Fn. 1, p. 1, supra)
8. The Orgi-nine offered for sale by Respondent is labeled to show that each capsule contains, among other substances, 400 mg. of L-Arginine and 200 mg. of L-Ornithine, amino acids for which no recommended dietary allowance has been established. Recommended daily dosage is "* * * one capsule with an eight ounce glass of water or as desired at meal times and at bedtime." (Ans. par. 7; CX 9)
B. The Making of The Representations
1. Orgi-nine
9. The question of whether the Respondent makes, or does not make, the representations attributed to it in paragraph 8 of the Complaint will now be determined. In making these determinations, the language of the claimed representation will be evaluated by comparison with the language of the advertisements which latter, for identification purposes, will be underscored. n3 Three out of four of the advertisements occupy a full page of a newspaper. It is, therefore, not practical, nor is it necessary to state every place at which a particular representation is made, since, together, the excerpts quoted are more than enough to convey the import and thrust of the advertisement concerning the particular products to which the advertisements relate. The representations which Complainant alleges are made by Respondent Daboub, expressly or by implication, by affirmative statements or omissions, in substance and effect, are now considered as follows:
n3 In this portion of the decision the representations about the three products involved in the proceeding will be discussed in the format described above.
a. Persons taking Orgi-nine will lose weight without restricting their accustomed caloric intake, i.e., dieting and without exercising. (Complaint, par. 8a.)
"One beautiful thing about these miracle substances is the ease with which they work. You don't have to count calories and you don't have to eat special foods. You don't even have to exercise." (App. A, Col. 2, the par. immediately under "LOSE WEIGHT EVEN WHILE YOU SLEEP")
b. Orgi-nine significantly contributes to effecting weight loss when it is used in conjunction with other weight loss measures. (Complaint, par. 8 b.)
"* * * The simple truth is that you can't lose weight unless your body uses up more calories than it takes in. But now, with L-Arginine and L-Ornithine, you don't have to rely only on dieting, now you can increase your metabolism so that you burn off the food you eat rather than storing it as fat."
c. Orgi-nine causes weight loss even while the user sleeps. (Complaint, par. 8 c.)
New Pill Speeds Up Metabolism and Makes You Lose Weight Even While You Sleep]
(60 point, bold-face caption & photo at top of App. A, reduced one-eighth)
LOSE WEIGHT EVEN WHILE YOU SLEEP
(App. A, col. 2, large sub-caption near center of col.)
d. Persons taking Orgi-nine will develop firm, toned muscles without exercising. (Complaint, par. 8 d.)
e. Orgi-nine will noticeably increase the user's energy and stamina. (Complaint, par. 8 e.)
f. Orgi-nine restores to older users the firm, toned muscles and physical energy of their youth or teenage years. (Complaint, par. 8 f.)
g. Orgi-nine causes the user's body to burn off or eliminate fat. (Complaint, par. 8 g.)
"Not only do you burn off unsightly fat, but regain firm-toned muscle and the physical enthusiasm and stamina of youth."
(App. A, col. 3, caption under photo.)
Just think how you and your companion would feel if you could:
o Burn away a maximum amount of fat in record time;
o Add firm, well-toned muscle where it ought to be;
o Look fantastic in clothes you only dreamed of wearing before;
o Attract admiring glances and compliments from your friends;
o Gain physical energy, enthusiasm and stamina as you drastically transform your body;
* * *
Just think how you would look in your new clothes]
Well, why not? Now, at last, the body of your dreams can be yours. Now, no matter how many times you may have struggled to lose weight before, and failed - now, at last you can do it. You really can]
(App. A, col. 2, 5th, 6th and 7th complt. pars.)
Los Angeles: Miracle Pill Helps You To Lose Weight and Regain Lost "Vigor" by Making You a "Teen" Again]
(App. A, sub-caption preceding the text of col. 1)
h. Orgi-nine causes weight loss because:
(1) it increases the user's metabolism, and because
(2) it stimulates the production of a significant amount of growth hormone and increased levels of growth hormone cause weight loss. (Complaint, par. 8 h.)
Reduction of body fat and weight requires that your body burn more calories than it takes in. The best and fastest results will be achieved by reducing calorie intake and at the same time using the pills to increase your metabolism to speed up your body's fat burning furnace, so that you burn off calories day and night at a faster rate. (App. A, col. 2, 3rd complt. par., 3rd line to end of par.)
These nutritional substances, called L-Arginine and L-Ornithine, stimulate the body's production of growth hormone. (App. A., col. 1, 2nd complete par. in text.)
Dr. Robert Harris, a specialist in nutritional medicine in Stafford Springs, Connecticut, was recently quoted as explaining:
"GROWTH HORMONE MAY BE WHAT'S RESPONSIBLE FOR ALLOWING TEEN-AGERS TO DOWN THOUSANDS OF CALORIES IN HAMBURGERS AND OTHER FOODS AND STILL BE THIN AS A RAIL.
"GROWTH HORMONE IS PRESENT IN PEOPLE UP THROUGH THE TEENAGE YEARS, THEN SLOWLY DIMINISHES WITH AGE. BUT L-ARGININE AND L-ORNITHINE MAKE THE BODY 'THINK' IT BELONGS TO A TEEN-AGER AGAIN, ALLOWING ADULTS TO EAT AS MUCH AS THEY WANT-AND STILL BE THIN AND WIRY." (App. A, col. 1, 3rd complete par.)
"Exactly what are these miracle substances, and how do they work?
"Well, first of all they are not drugs. They are natural amino acids just like those found in the foods you eat everyday. By increasing your daily intake of these nutrients they cause your body to trigger the production and release of natural growth hormones, just like you had in abundance when you were a teenager. The simple truth is that you can't lose weight unless your body uses up more calories than it takes in. But now, with L-Arginine and L-Ornithine, you don't have to rely only on dieting, now you can increase your metabolism so that you burn off the food you eat rather than storing it as fat. (App. A, penult. and last par. starting in col. 1.)
i. The advertising representations alleged in paragraphs a through h above are fully supported by competent medical and scientific evidence. (Complaint, par. 8 i.)
Life Extension Scientists Accidentally Discovery Natural Substances Which Cause Your Body To Burn Fat Faster] (App. A, smaller bold-face caption across top of 3-col. ad.)
These miracle substances were introduced to the public by the famous and respected research scientists, Durk Pearson and Sandy Shaw, in their new best-selling book, "Life Extension." (App. A, col. 1, 7th complt. par., and see statements attributed to Dr. Robert Harris, col. 11, 3rd complt., par. quoted above under complt., par. 8 h.)
MEDICAL REFERENCES
"Life Extension-A Practical Scientific Approach," Pearson & Shaw
"Nobelist Ties Gut Hormone to Appetite Control by Brain," Medical World News, Vol. 79, 5 Feb., pg. 18.
"Arginine A Thymotropic and Wound-Healing Promoting Agent," Surgical Forum Vol. 28: 101-103.
"Arginine-Initiated Release of Human Growth Hormone," New England Journal of Medicine Vol. 280(26): 1434-1438. (App. A, col. 1 and 2, bottom of page)
j. A loss of 25 pounds of fat and a gain of 5 pounds of firm, toned muscle in 6 weeks is not an unusual occurrence for persons taking Orgi-nine. (Complaint, par. 8 j.)
Sandy is a biochemist graduate from UCLA and Durk is a physicist graduated from MIT. They have devoted their lives to research into how to prolong life and postpone aging. Still, they discovered the amazing properties of L-Arginine and L-Ornithine almost by accident. What happened was that Sandy fell and broke a bone in her foot. Because L-Arginine was known for its ability to speed healing, she started taking it daily. Much to her amazement she found that SHE LOST 25 POUNDS OF FAT AND PUT ON 5 POUNDS OF FIRM-TONED MUSCLE IN JUST SIX WEEKS] Durk and Sandy report that they knew a growth hormone would cause the body to burn off fat and put on muscle, but they really didn't realize how spectacular the effect could be. According to Durk's calculations, the pill caused Sandy to lose 400 times as much fat as she would otherwise have lost] (App. A, col. 1, pars. 8, 9 & 10)
The ingredients required to make this product are not inexpensive; but considering the remarkable results that can be achieved, the pills are worth every penny. And, best of all, Vita-Health Research is so confident Orgi-nine will work for you, that they offer a very simple guarantee-one they could not dare to offer unless the product was everything they say it is. (App. A, col. 2, pars. 10 & 11)
k. The amino acids, L-Arginine and L-Ornithine, are not readily available to consumers, other than through a purchase of Orgi-nine. (Complaint, par. 8 k.)
Pearson and Shaw report that L-arginine and L-ornithine are not easy to find. Until recently that may have been a major problem. But now, Vita-Health Research, a California company which has been distributing weight-loss and health related products for 5 years, has formulated both of these substances into an easy-to-take pill. They market them under the name, Orgi-nine. (App. A, col. 2, 9th complt. par.)
Because of enthusiastic public demand for this new product, and the fact that it is not generally available in retail stores in the United States, we have stocked a large supply. We can, therefore, guarantee immediate delivery, by return mail, of all orders within 10 days of the publication of this paper. After that, orders will be filled on a "first-come, first-served" basis as long as supplies last. (App. A, col. 3, 3rd complete par. under "Important Notice" box)
FAST-TRIM
10. There is next to be resolved the question as to whether Respondents make the representations concerning Fast-Trim alleged in paragraph 11 of the Complaint. In resolving this question the representations and the related language, underscored, from Appendices B and C will be considered.
a. Persons following the Fast-Trim program will lose weight without restricting their accustomed caloric intake, i.e., dieting, and without exercising. (Complaint, par. 11 a.)
Altogether, I believe this product is the best thing on the market. It truly gives you the best of both worlds. It is designed to allow you to comfortably reduce your calorie intake in order to provide ultimate fat destruction and, astounding as it may seem, you will:
o Never miss a meal
o Never starve yourself
o Never torture yourself with exercise (App. B, col. 2, 1st complete par.)
All in all, FAST-TRIM may be the most comprehensive and effective fat-burning method ever developed. There are no painful exercises, no starvation diets and no gimmicks. (App. B, col. 3, beginning with 3rd line of text of ad.)
b. Most users of the Fast-Trim program will experience an extraordinary rate of weight loss. (Complaint, par. 11 b.)
An Amazing New Diet Discovery
HOW TO BURN OFF
BODY FAT,
HOUR-BY-HOUR]
and do it
even while you sleep]
(App. B, large bold-face, 3-column caption at top of advertisement)
Our new product is called FAST-TRIM and it works like a miracle. FAST-TRIM is an all-out fat-fighting weapon that is both safe and very powerful] (App. B, col. 2, starts in 1. 6)
c. Most users or the average user of the Fast-Trim program will lose weight at the rate of over four pounds per week. (Complaint, par. 11 b.)
The following testimonials as to rate of weight loss are attributed to the persons whose names or initials are as shown in App. C.
"45 pounds in 2 months]" J. L.
"33 pounds in 8 weeks]" Lynn Dee Schaudis
"45 pounds in 8 weeks]" Ronald L. Carleton
"24 pounds in only 30 days]" C. F.
d. Most users or the average user of the Fast-Trim program will lose 6 pounds in the first 48 hours and 12 pounds in the first week. (Complaint, par. 11 d.)
Now, as I said before, because everybody is different, nobody can guarantee how much or how fast you will lose. However, THE AMERICAN DIET ASSOCIATION is so positive about FAST-TRIM they are making the following guarantee:
IF YOU HAVE NOT LOST UP TO 6 POUNDS IN THE FIRST 48 HOURS AND UP TO 12 POUNDS IN THE FIRST WEEK, IF YOU ARE NOT 100% SATISFIED-THEN SEND BACK THE EMPTY PRODUCT CONTAINER AND THE COMPANY WILL RETURN YOUR ENTIRE PAYMENT TO YOU QUIETLY AND WITHOUT QUESTIONS] (App. B, col. 3, penultimate par.)
e. Sandra Brooks lost 277 pounds in 13 months using the Fast-Trim program. (Complaint, par. 11 e.)
Sandra herself has lost 277 pounds and she did it with her own (self-developed) system in only 13 months. (App. B., col 3, 3rd sentence in text of box with photograph)
In only 13 months I dropped from 389 lbs. to just 112 lbs. (App. C, col. 1, 4th par. of "Dear Friend" letter.)
f. The Fast-Trim diet pill causes weight loss by continuously burning off or eliminating body fat, even while the user sleeps. (Complaint, par. 11 f.)
g. The Fast-Trim program is a new scientific discovery in the field of weight loss. (Complaint, par. 11 g.)
(See 60 point caption under the Charge in par. 10 b, page 32, supra.)
Here is what it is all about. As a diet counselor I do a lot of research on different ways to lose weight and recently I really hit the jackpot. It all started when I read a headline in Cosmopolitan Magazine that said:
BURNS AWAY MORE BODY FAT
EACH DAY THAN 15 HOURS OF
NON-STOP EXERCISE]
(App. B, col. 1, par. 3.)
AN AMAZING NEW DIET DISCOVERY
(App. B, top right-hand corner.)
3. Energetic Contour Creme
11. The next question to be addressed is whether the Respondent Daboub, in advertisements for Energetic Contour Creme, makes the representations alleged in paragraph 14 of the Complaint. These representations and related advertising language, underscored, are now stated.
a. The Energetic Contour Creme treatment will in 55 minutes noticeably and permanently reduce the user's waist measurement, flatten the user's stomach and slenderize the user's hips and thighs. (Complaint, par. 14 a.)
Amazing
NEW Product
From Beverly Hills Lets You
Reduce Your
Waist Measurement
And Flatten Your Stomach . . .
IN JUST
55 MINUTES]
(App. D, caption)
The most amazing thing of all about this space-age inch-loss formula is that after just one treatment (which takes about an hour) you can actually
SLENDERIZE YOUR HIPS
PLUS
TRIM DOWN YOUR THIGHS
PLUS
REDUCE YOUR WAIST MEASUREMENT
(App. D., col. 3, last par.)
b. The Energetic Contour Creme treatment will permanently reduce the user's cellulite and local fat deposits. (Complaint, par. 14 b.)
Have you heard about the new "shrink wrap" formula from Beverly Hills? It is brand new and it is absolutely amazing. In fact, it is the only thing on the market that is guaranteed to flatten your stomach, slenderize your hips and reduce your waist measurement in less than one single hour.
This amazing process has been the talk of one TV show after another. It has been demonstrated on several syndicated TV shows and some of the country's major magazines. It is now the rage of the Beverly Hills salons. (App. D, col. 1, pars. 1 & 2 of text of advertisement)
c. The Energetic Contour Creme treatment will cause a permanent loss of inches from the user's body. (Complaint, par. 14 c.)
One thing you should know about this remarkable inch-loss formula is that it is not just another of those "want it off" or "water loss" gimmicks where you put the inches back on the first time you take a drink of water. (App. D, col. 3, 1st par. under "Trigger Rapid Inch-Loss Where It Really Counts.")
d. There is competent scientific evidence fully supporting the ability of the Energetic Contour Creme treatment to cause a permanent loss of inches from the user's body and a permanent reduction of cellulite and local fat deposits. (Complaint, par. 14 d.)
WHAT IS CELLULITE?
The simplest way to define cellulite is to say that is "trapped fat." In other words, it is fat that is immobilized and surrounded by water and poisons. This, of course, causes obesity, bloating, and creates a loss of energy and good feeling.
WHAT CAN BE DONE
ABOUT IT?
Until very recently, nothing could be done about it. Now at last, however, there has been a breakthrough by a group of California scientists who have created a space-age formula that causes you to lose inches faster than ever before. Therefore, after just one treatment with this remarkable new formula you can actually measure how many inches you have lost with any common tape measure] (App. D, bottom of col. 1 and top of col. 2)
e. The Energetic Contour Creme Treatment causes permanent inch loss from the users' body and the permanent reduction of cellulite and fat deposits by shifting the location of fat cells, reshaping them, and making them more accessible to the users' circulatory system. (Complaint, par. 14 e.)
First of all, the pressure of the wrapping along with the stimulation of the space-age hot oils actually shifts the location of your fat cells, reshaping them and making them more accessible to your circulatory system. This encourages Nature's natural reparative processes to work with maximum efficiency. (App. D, col. 3, 2nd par. under "Trigger Rapid Inch-loss Where It Really Counts."; also, the excerpts from App. D quoted above in support of Complaint pars. 11a, b, c, and d.)
C. The Truth or Falsity of the Representations
12. The findings in this portion of the decision are the determinations as to the truth or falsity of the representations heretofore found to have been made by Respondents with respect to the various products. These findings are based on the testimony of Dr. Drenick, which in this proceeding is recognized as expressing the consensus of informed medical and scientific opinion on the subjects to which the testimony relates.
1. Orgi-nine
The label on this product reads as follows:
LEFT RIGHT
Recommendation: As an Contents:
addition to the daily diet Each Capsule Contains:
of the Amino Acids L-Argi- L-Arginine 400 mg.
nine and L-Ornithine, take L-Ornithine 200 mg. n4
one capsule with an eight L-Arginine and L-Ornithine are amino
ounce glass of water or as acids and no recommended dietary
desired at meal times and allowance has been established for
at bedtime. these items. Excipients utilized:
Micro Crystalline Cellulose is present
CAUTION: This product is as a filler. Magnesium Stearate is
intended for adult use present as a lubricant to assist in
only. encapsulation. The capsules are
preservative free gelatin. This
product contains no sugar, starch,
KEEP OUT OF REACH OF colorings, wax or artificial
CHILDREN ingredients.
n4 In copying the product label for use as CX-9, this line was inadvertently omitted from the copy of the right side of the label. The correction was made at Tr. 249.
MIDDLE
ORGI-NINE
An Amino Acid
Supplement
L-Arginine 400 mg.
L-Ornithine 200 mg.
VITA 60 CAPSULES
HEALTH COSTA MESA,
Research CA 92627
The amino acids in this product, L-Arginine and L-Ornithine are non-essential amino acids, which is to say that they are manufactured or synthesized by the body from food that has been eaten. Arginine is contained in every protein and it is quite plentiful in meat, fish and dairy products. Ornithine can be synthesized from arginine and from other amino acids. An average egg contains at least twice as much arginine as is contained in one Orgi-nine pill. The claimed theory under which these pills are manufactured, advertised, and sold is that when taken as directed the arginine and ornithine cause the release of human growth hormones (HGH) which, in turn, produce weight loss. (Tr. 298-301)
In general, any weight loss has to be achieved as a result of a calorie deficit, meaning that more calories are expended than are introduced. That excess of expenditure can be achieved in a number of ways including reduced food intakes, increased expenditure of calories by exercise, or by surgical means. (Tr. 294) Unless a weight reduction program includes and accomplishes a negative calorie balance, it will not succeed. There is no other way. (Tr. 295)
Numerous reports in scientific literature discuss experiments in which very large doses of arginine and many other amino acids have been administered. In most instances, rather than in hundreds of milligrams as in Orgi-nine, the dosages were given in many thousands of milligrams. The response in raised HGH was very moderate, frequently inconsistent, and variable from one individual to another. In general, the increases in HGH were the same as those obtained from eating an ordinary protein-containing meal. (Tr. 301) Eating such meals does not cause the loss of fat or weight. To give relatively minute amounts of these amino acids, as in Orgi-nine, could not produce any kind of weight- or fat-loss by the mechanisms asserted by Respondents. (Tr. 302)
13. Based upon the foregoing evidence it is found that:
a. Persons taking Orgi-nine will not lose weight without restricting their accustomed caloric intake, i.e., without dieting and without exercising (Comp., par. 8a.);
b. Orgi-nine does not significantly contribute to effecting weight loss when it is used with other weight loss measures (Comp., par. 8b.);
c. Orgi-nine does not cause weight loss even while the user sleeps (Comp., par. 8c.);
d. Orgi-nine does not cause the user's body to burn off or eliminate fat (Comp., par. 8g.); and
e. It is false to claim that Orgi-nine causes weight loss because: (1) it increases the user's metabolism, and because (2) it stimulates the production of a significant amount of growth hormone and increased levels of growth hormone cause weight loss (Comp., par. 8h).
Lack of activity and non-use of muscles causes a diminution of muscle tone and muscles become flabby. In a normal, healthy individual, the only thing that will improve muscle tone is challenge to the muscle by consistent and adequate exercise. (Tr. 303-304) If a muscle is permitted to be inactive for a sufficient period of time it will atrophy, regardless of the amount of arginine or any other one of the amino acids the person consumes. (Tr. 989) Much higher levels of amino acids than are present in Orgi-nine, which average people ingest on a daily basis, do not produce improved muscle tone. (Tr. 470)
14. The foregoing evidence supports the following findings:
a. Without exercising persons taking Orgi-nine will not develop firm, toned muscles (Comp., par. 8d.);
b. Orgi-nine will not noticeably increase the user's energy and stamina (Comp., par. 8e.); and
c. Orgi-nine does not restore to older users the firm, toned muscles and physical energy of their youth or teenage years (Comp. par. 8f.).
It has been seen that Respondent advertised near the top of Appendix A that "Life Extension Scientists Accidentally Discover Neutral Substances Which Cause Your Body to Burn Fat Faster]" At the bottom of Appendix A, four "Medical References" are listed, the first of which was written by the "Life Extension Scientists" referred to at the top of the advertisement. This first "Medical Reference" is a work entitled "Life Extension - A Practical Scientific Approach" and the author's names are Durk Pearson and Sandy Shaw. Concerning that writing, Dr. Drenick said: "As a matter of fact, I saw a few pages of this book, and there were so many inaccuracies and inane statements in it that I think nobody, lay person or other, should use this as a reliable reference." (Tr. 326)
The second so-called "Medical Reference" cited at the bottom of Appendix A is "Nobelist Ties Gut Hormones to Appetite Control by Brain," Medical World News/Vol. 7, 5 Feb. 1979, p. 18. This magazine is not a peer-review publication, it being more in the nature of a newspaper. The article, itself, is related neither to any claim made by Respondent for Orgi-nine nor to any issue of this proceeding, except that a respected internist who shared the lecture platform with the person who reported the experiment stated: "We can't give CCK (the substance under examination in the experiment) to obese patients, nor would we want to." (CX-89, p. 18)
The third reference cited at the bottom of Appendix A is "Arginine: A Thymotropic and Wound-Healing Promoting Agent," cited as being from Surgical Forum, Vol. 28: pp. 101-103. (CX-88) This article relates to the rate of wound-healing in rodents that had been wounded and, then, given arginine. It has "nothing to do with metabolism, weight loss, fat loss or sleep." (Tr. 328-29) Similarly, it has nothing to do with increasing energy and stamina, or with developing firm and toned muscles without exercise. (Tr. 329)
The fourth and last source cited at the bottom of Appendix A is "Arginine-Initiated Release of Human Growth Hormone," New England Journal of Medicine, June 26, 1969, pp. 1434-1438. (CX-86) This article reports a study in which the minimum dose of arginine required to effect growth hormone release is stated and this dose is stated in thousands of milligrams rather than, as in the case of Respondents' product, 1200 to 1600 milligrams. In addition, the dose of thousands of milligrams of arginine was administered intravenously rather than orally, as with Orgi-nine. (Tr. 310, 327-28; CX-86) Respondent's citation of this article was inappropriate because it does not support the claims made for the product. (Tr. 328).
In about the middle of the left-hand column of Appendix A, Respondent attributes to Dr. Robert Harris, described as "a specialist in nutritional medicine in Stafford Springs, Connecticut," a statement supportive of Orgi-nine. Dr. Harris is reported to have said, among other things, that "L-Arginine and L-Ornithine make the body 'think' it belongs to a teenager again, allowing adults to eat as much as they want - and still be thin and wiry."
Dr. Harris' practice is a private general practice, combined with nutritional medicine. He said, with reference to his practice, that one so engaged "could just as well describe himself as a general practitioner." In general, he treats geriatric patients with degenerative diseases. Almost never have patients whose primary complaint was obesity come to him. (Tr. 23, 47) When he prescribes diet and lifestyle changes for his patients, his objective is not weight loss per se, but it is treatment and prevention of degenerative disease. He does not consider himself to be an expert in obesity, and he has no particular expertise with growth hormone, L-Arginine or L-Ornithine. (Tr. 24, 26) During the period January-December, 1983, there were only about 80 physicians in the county in which Stafford Springs, Connecticut, is located, and he was the only Robert Harris among those physicians. (Tr. 23-24)
Asked whether he made the above statement attributed to him by Respondent, Dr. Harris replied: "I can't believe I said that. I would go on record as saying that I did not say that." (Tr. 29, 65) No representative of Vita-Health Research ever asked him to approve or to verify the accuracy of the advertisement. (Tr. 39) Dr. Harris has never been paid for the promotion or endorsement of any product, including Orgi-nine, and he never intends to be. (Tr. 63) He sought a retraction from The Star, in which publication the advertisement appeared, but his request was denied. (Tr. 95-96) Dr. Harris' early statements on direct examination that he is not an expert in the field of obesity were fully vindicated in later direct and, more especially, on cross-examination. (Tr. 58, 59, 60, 64, 73, 74, 75, 83, 84, 85, 97).
It is possible to design a study by which it can be determined whether the taking of Orgi-nine as directed by Respondent is effective in terms of producing weight loss. Dr. Drenick outlined such a study. (Tr. 322-324) That outline summarizes a more detailed design for such a study published in the Federal Register, Vol. 47, No. 39, February 26, 1982, page 8466 at pages 8482-8483. There are no valid studies in the literature in which amino acids are used to effect weight loss. (Tr. 450) There is no valid study in which ornithine and arginine have been examined to determine their effect on growth hormone secretion. (Tr. 476) Finally, Dr. Lima was asked for the authority on which he relied for support for his conclusion, stated in RX-N, that ornithine and arginine, when taken together, will have a greater effect than when the two substances are taken alone. He replied that he relied on "common sense" and when he was asked if he relied on any other source, he said: "No. The source is myself. No other source". (Tr. 903, 905)
15. The foregoing evidence requires the finding that:
The advertising representations alleged in paragraph 8a. through h. are not supported by competent medical and scientific evidence. (Comp., par. 8i)
Dr. Lima gave it as his opinion that for persons taking Orgi-nine a loss of 25 pounds of fat and a gain of 5 pounds of firm toned muscles in a period of six weeks "would be unusual." (Tr. 958) Dr. Drenick explained that a loss of 25 pounds in 42 days would mean a loss of approximately one-half a pound per day. He said: "To postulate that somebody with that degree and rate of weight loss would be able, at the same time, to put on a huge mass of muscle, is physiologically impossible." (Tr. 986)
16. The witnesses for both parties agreed, and it is hereby found, that it is a misrepresentation to state that:
a loss of 25 pounds of fat and a gain of 5 pounds of firm, toned muscles in 6 weeks is not an unusual occurrence for persons taking Orgi-nine. (Comp., par. 8j)
In what appears to be an advertisement taken from the San Gabriel Valley Sunday Tribune News there are listings of various vitamins, health foods, and the like, and two of the items listed are L-Arginine and L-Ornithine. These substances are offered for sale through the mail by a nationally known marketer of such products, and nowhere in the advertisement is there any indication of a limit to the quantity or amount of these two amino acids that may be purchased. (CX-83)
Arginine and ornithine can be obtained without difficulty. A combination of the two substances is not difficult to formulate, and either separately or in combination, one can have what he wants of them since they are not items for which one needs a prescription in order to purchase them. (Dr. Lima, Tr. 932)
Dr. Drenick is aware of most of the weight loss products that are available to overweight persons who are not under the care of a physician. He sees many patients who have significant weight problems and they generally have used a variety of drugs that they have obtained either from other physicians, or as over-the-counter products, or through the mails on the basis of various advertisements. He sees such products advertised in newspapers, he sees them on the shelves in drug stores, and he sometimes reads the labels under which such products are sold. (Tr. 291-292) There are innumerable people making amino acid mixtures for weight loss products. This group of products is widely marketed and anyone could get them from any of the people who make individual amino acids. Amino acid mixtures are amply represented in health food stores - at least in the area in which Dr. Drenick lives. (Tr. 990, 991)
Inspector Cook had no difficulty in purchasing tablets of L-Arginine and L-Ornithine. By a telephone call to the drugstore owned by a friend of his, Inspector Cook ordered a quantity of each. They were delivered to him in the evening of the day he ordered them. (Tr. 253-254; CX-80, 81, 82, 82A)
17. The above evidence establishes the falsity of the representation that:
The amino acids, L-Arginine and L-Ornithine, are not readily available to consumers, other than through a purchase of Orgi-nine. (Comp., par. 8k)
2. FAST-TRIM
To persons ordering the Sandra Brooks Diet Program (hereinafter Fast-Trim) Respondents send the four parts of the program, namely: 3 containers of "Appetite Suppressant Tablets"; 1 container of "Herbal Diuretic Tablets"; a booklet entitled "From Fat to Fabulous" by "Dr. Sandra Brooks"; and a circular entitled "Fast-Trim 1200 Calories Weight-Loss Program". (Tr. 258-264; Ans. par. 11; CX-12, 13, 14, 16) The "Appetite Suppressant" tablets, referred to as the Fast-Trim diet pills in Respondents' advertisements, are labeled to contain 25 mg. of Phenylpropanolamine HCL (PPA). The product label instructs users to take one tablet before each meal. (CX-13) The Fast-Trim "Herbal Diuretic," referred to as the "water" pills in Respondents' advertisements, are labeled to contain 150 mg. Uva-Ursi, 150 mg. Buchu Leaves, with parsley, asparagus and corn silk powder. The product label instructs users to take 2 tablets daily following principal meals, during the first week, and 1 tablet daily the second, third and fourth weeks. (CX-14) The brochure by Sandra Brooks recommends, essentially, an eating plan and a "mental conditioning" technique. (CX-15, p. 2, 6-7; Answer, par. 11) The circular included provides consumers with a 3-day sample diet of 1200 calories per day. Consumers are instructed not to decrease caloric intake below this level (unless they are under the care of a physician). (CX-16, p. 2)
The majority of the advertisements for Fast-Trim are in the form of a letter from Sandra Brooks to consumers concerning Fast-Trim. (CX-36-45, 48, 50, 52, 53, 55-62, 64-77, 101) Complainant's Exhibits 46, 47, 54 consist of a letter from Leo Daboub, President of American Diet Association, with several testimonials from consumers, and a complete reproduction of the Sandra Brooks advertisement. Therefore, the discussion and findings regarding the Sandra Brooks advertisement which appear below also apply to the Leo Daboub advertisements. Three other versions of Fast-Trim advertisements rely heavily on testimonials from Fast-Trim users. (CX-49, 51, 63)
Phenylpropanolamine is a decongestant, which, because it is chemically a distant relative of benzedrine, some physicians have held the opinion that it may have an influence on brain areas that have something to do with hunger or satiety. (Tr. 341)
The Commissioner of the Food and Drug Administration (FDA) appointed an Advisory Review Panel on OTC Miscellaneous Internal Drug Products which considered, among other things, whether certain substances, including PPA, are safe and effective and not misbranded when sold over the counter in certain dosages as weight control drug products. An advance notice of proposed rulemaking based on the report of the Advisory Panel was published at 47 F.R. 8466-8484, February 26, 1982, of which Notice official note has been taken. In publishing its Notice, the FDA made some interesting comments, some of which are now repeated.
"For these reasons, the agency is concerned about the suitable safe dose level of phenylpropanolamine hydrochloride for use in weight control products. Further studies appear necessary to resolve the safety questions raised by the studies discussed above. These studies would be needed to determine the extent of which phenylpropanolamine induces hypertension in normotensive patients or aggravates pre-existing hypertension, and interacts with aspirin and other medications that inhibit prostaglandin synthesis at the dose levels recommended for use by the Panel. Therefore, at this time the agency is specifically requesting comments and information on this issue.
"At this time, the agency does not find it necessary to take action to remove from the market products containing phenylpropanolamine at dosage levels which have a marketing history of use in OTC weight control drug products. The daily dosage levels in these marketed products are an immediate-release dose of up to 37.5 mg. and a timed-release dose of up to 75 mg. phenylpropanolamine, with the total daily dose not to exceed 75 mg. in either case." (47 F.R. 8468)
* * *
"At this time the agency has not evaluated the Panel's findings regarding the effectiveness of weight control drug products. However, the agency points out the Panel's finding that 'while weight control drug products may assist in reducing an individual's appetite, a significant weight loss can be achieved only if accompanied by a reduction in total daily caloric intake below the energy output.' * * * In order to convey this point to consumers the Panel recommended that all product labeling contain the following statement, under the heading 'Directions: This product's effectiveness is directly related to the degree to which you reduce your usual daily food intake'.
* * *
The agency is concerned that the past promotion of some weight control drug products may have engendered a misunderstanding among potential consumers that weight loss results directly from the use of the drug product, and, therefore, it is unnecessary to diet in order to lose weight. In order to overcome this possible misunderstanding the agency strongly recommends that manufacturers of OTC weight control drug products voluntarily undertake immediate steps to incorporate the Panel's recommended statement in their labeling." (47 F.R. 8468-8469)
The essence of the last-quoted excerpt from the FDA Notice was stated by Dr. Drenick when he said that PPA as presented in the Fast-Trim Diet Suppressant Pill has no effect on weight loss "if the same amount of calories is consumed". Similarly, these pills, taken as directed, will have no effect on the user's metabolism, and they will not cause weight loss by continuously burning off or eliminating body fat, even while the user sleeps. In a group of studies extending from two to eight weeks, the subjects were told that a drug was being used as an appetite suppressant. Some subjects were given PPA and some were given a placebo. Averaging the results of those studies, those subjects taking PPA lost about .7 ounce per week more than those subjects to whom the placebos were given. (Tr. 341-344)
The use of an effective diuretic in a weight loss regimen is contraindicated because persons in such a regimen usually lose salt and water as the restricted diet is instituted. The addition to the regimen of an effective diuretic would endanger the health of the followers of the regimen. (Tr. 346) The Panel appointed by FDA could not locate, and was not aware of, any significant body of data demonstrating the safety and effectiveness of buchu, uva ursi potassium extract when used for weight control. (47 F.R. 8471) In Dr. Drenick's opinion the Fast-Trim Herbal Diuretic is not an effective diuretic. (Tr. 346-7)
18. This opinion is recognized and adopted as a statement of fact.
Another phase of the Fast-Trim program is what is at times called "mental conditioning". At the outset the person who has bought the program is told to (1) visit his doctor and find out whether there is any medical reason why he can not participate in this program; (2) follow the prescribed eating plan for the next 30 days; (3) use the prescribed mental conditioning plan for two minutes every night before going to sleep for the next 30 days; and (4) take the "special tablets" according to the instructions for the next 30 days. (CX-15, p. 2) These instructions are followed later in the booklet by seven "suggestions" as to foods that are to be eaten or avoided, snacking and walking at times instead of eating. (CX-15, p. 7) The mental conditioning paragraph is such an important feature, since it is to be read twice just before going to sleep for the first 30 days one is on the program, that it is here repeated:
"I am very happy and I am calm and relaxed. Right now as I breathe in and out I am relaxing more and more. I am breathing very, very slowly and I am relaxing very, very deeply. I have a thin, graceful body and I am loose and calm. I am very thin and I am loose and calm. I am loose and calm and I am very thin. I am thin and I feel good. I am very calm and I am very thin. I am very calm and I am thin." (CX-15, p. 7)
Next, there are some "conditioning instructions" the aim of which is to put one into a mental and physical state of relaxation during which the paragraph quoted above is read twice and the person is ready for sleep. (CX-15, p. 8) The booklet concludes with a "Phantasy Section" in which the person on the regimen is given a number of pleasant situations in which to imagine himself/herself in which one mentally pictures that he/she is slender, beautiful and much admired by all. (CX-15, pp. 8-9) The last page of the pamphlet consists of an advertisement for Energetic Contour Creme, later to be considered. (CX-15, p. 10)
With reference to the "suggestions" appearing on page 7 of the booklet, there are some which are common sense suggestions that the reader try to diminish the intake of certain high calorie foods, but some of the suggestions do not help the individual to lose weight - such as drinking more water and juices. If the reader drinks more juices he will be adding more calories to his food intake. The suggestion that one snack all the time will also cause one to add more calories. In general, the measures recommended in the booklet "From Fat to Fabulous" do not constitute a new development in the area of weight loss. (Tr. 369-370)
The fourth part of the Fast-Trim program is a 1200 calorie-per-day diet, which is a routine diet, used for years, of the type recommended by Weight Watchers and the American Diabetes Association. It does not yield spectacular results, but it produces a modest and slow weight loss in the average overweight individual. On the other hand, of all the four parts of the Fast-Trim program, including the PPA pills, the diuretic tablets, the mental conditioning and other measures recommended in the booklet "From Fat to Fabulous", and the 1200 calorie diet, it is the latter which, alone, causes the weight loss. (Tr. 371)
If the average, middle-aged, overweight woman adheres over a protracted period to the 1200 calorie daily diet, she will lose from one to two pounds per week. Taking the PPA pill as directed would not increase the rate of weight loss. The average overweight male under the same circumstances probably would lose from three to three and a half pounds per week, since men tend to lose weight faster. (Tr. 374-375) In a four-week study in which male and female subjects were placed on a 1200 calorie diet together with PPA, the males lost an average of eight pounds and the females lost an average of four pounds over the four-week period. (Tr. 377)
19. Based upon the competent, credible testimony relating to the Sandra Brooks Diet Program (Fast-Trim) it is found that: (a) persons following that program will not lose weight without restricting their caloric intake and without exercising (Tr. 379; see, also, testimony re weight loss methods at Tr. 294-295; Comp., par. 11a); (b) persons following the program will not experience an extraordinary rate of weight loss (Tr. 378-9; Comp., par. 11b); (c) neither most users nor the average user of the Fast-Trim program will lose weight at the rate of over four pounds a week (Tr. 377; Comp., par. 11c) or (d) at the rate of 6 pounds in the first 48 hours and 12 pounds in the first week (Tr. 378; Comp., par. 11d); (e) the Fast-Trim diet pill does not cause weight loss by continuously burning off or eliminating body fat, even while the user sleeps (Tr. 341; Comp., par. 11f); and (f) the Fast-Trim program is not a new scientific discovery in the field of weight loss. (Tr. 379; Comp., par. 11g)
When asked, assuming that Ms. Brooks was on a 1200 calorie daily diet, that she probably engaged in mental conditioning and pleasant phantasies as recommended in her brochure, but that she took no PPA nor diuretic, how reasonable would it be for her to claim that she lost 277 pounds in 13 months, Dr. Drenick replied:
THE WITNESS: All right. Basing my calculation on that assumption, she would have had to expend 3,100 calories per day to achieve that kind of fat tissue loss. And the assumption there is that one pound of fat tissue is equivalent to 3,700 calories.
To expend in excess of 3,000 calories a day for the average female is very near impossible. It is difficult for a male to expend that much on an average day.
So a very rough calculation -- and I can only say it's a rough calculation -- it would make it very highly unlikely that she can accomplish this kind of a weight loss, consuming 1200 calories.
I think it would be far more likely that she was in 1200 calories for awhile, and then went to a much lower calorie intake; whatever, 300, 500, and then * * * back to the 1200 or something like that.
Because there was insufficient evidence either to prove or disprove that Ms. Brooks lost 277 pounds in 13 months, I make no finding as to the amount of weight she lost during the 13-months period. It is admitted by Respondent, however, that by whatever means she employed to lose such amount of weight as she lost, her method did not include the use of PPA or the diuretic pill being sold by Respondent as part of the Fast-Trim program. (Tr. 993) Since she now disavows the use of the Fast-Trim program in connection with her weight loss, it is seriously misleading and a misrepresentation for her "before" and "after" photographs to be so prominently featured in advertising copy for Fast-Trim advertising matter which she helped to prepare and which she had authority to edit.
20. Accordingly, the representation set forth in paragraph 11e. of the Complaint is false.
3. ENERGETIC CONTOUR CREME
This enterprise is attractive because of its simplicity. It probably has the greatest appeal for women, although it may be possible that some men buy it. If a woman has what she believes is cellulite, or if she is unhappy with the measurements of her waist, stomach, hips, thighs and other local fat deposits, and if she wants to use Respondent's Energetic Contour Creme for the condition, she can order it from Nutritional Research, Dept EC-7, 177-F Riverside Drive, Newport Beach, CA 92663 for $19.95, plus $2.00 shipping and handling charges.
The product, obtained by a test purchase, was an 8 ounce jar of what is called "Energetic Contour Creme with Aloe and Chamomile." (CX-3) Accompanying the jar of creme is a circular setting forth the instructions as to its use. (CX-5) The label of the product also contains directions for use and states the ingredients as follows:
Water, TEA Stearate, Glycerin, Petrolatum,
Lanolin Alcohol, Stearyl Alcohol, Acetylated
Lanolin, Aloe, Allantoin, Ascorbic Acid,
Chamomile, Methylparaben, Propylparaben, FDC Red
4 & Yellow 6, Fragrance.
CAUTION: NOT FOR FACE, NECK, BREASTS. KEEP
FROM EYES, DO PATCH TEST. IF IRRITATING, DON'T
USE. CLEANSE WITH E OIL.
* * *
Bathe. Relax muscles, mark and measure contour
areas before and after. Apply generously. Wrap
tight with plastic. After an hour or so, shower
off. (CX-4)
The initial order for this product was made on September 23, 1983, and received on October 13, 1983; a second order was made on June 12, 1984, and received on July 16, 1984; and a third order was placed on November 7, 1984, and received on November 27, 1984. (CX-1, 2; Tr. 244, 245)
Cellulite, which is one of the problems the relief or removal of which is emphasized in Respondents' advertisements of Energetic Contour Creme (hereafter, Creme), is not a technical medical term. It was invented by French cosmeticians and it refers to the dimpled appearance that occurs in some obese individuals. Tissue popularly known as cellulite, and other local fat deposits, can be removed by weight loss, generally, or by local surgical procedures. When weight is lost, fat is first mobilized from the fat cells and some of the fat is, then, metabolized if a negative caloric balance exists. (Tr. 380-381) Weight loss and increased muscle tone may serve to reduce the measurement of one's waist and flatten the stomach area. Weight loss will also make a person's hips and thighs more slender. (Tr. 383)
Neither the use of creams or other topically applied substances, nor the wearing of garments or various materials (such as plastic wrap) will reduce such local fat deposits or permanently decrease body measurements. (Tr. 380, 383) There is no competent scientific evidence substantiating claims that are contrary to the foregoing statement. (Tr. 385)
The ingredients in Respondents' Creme are the same or similar to those found in many ordinary skin conditioners and creams, except that Respondent's product contains ascorbic acid, which is Vitamin C. The creme and the plastic wrap, singly or in combination, will not induce or accelerate fat mobilization or metabolism. (Tr. 382) Fat cells are fixed in number and anatomical location. Even when weight loss occurs, fat is merely mobilized from the fat cells and metabolized, if needed by the body. This process has no effect on the accessibility of the fat cells to the circulatory system. (Tr. 381) The anatomical relationship between the fat cell and the capillaries does not change. (Tr. 380, 381)
21. The foregoing evidence provides ample support for the findings that: (a) Respondents' Energetic Contour Creme Treatment will not in 55 minutes noticeably and permanently reduce the users' waist measurement, flatten the users' stomach, and slenderize the users' hips and thighs (Comp., par. 14a); (b) Respondents' Energetic Contour Creme Treatment will not permanently reduce the users' cellulite and local fat deposits (Comp., par. 14b); (c) cause a loss of inches from the users' body (Comp., par. 14c); (d) there is no competent, scientific evidence supporting Respondents' representation that its Energetic Contour Creme Treatment will or can cause a permanent loss of inches from the users' body and a permanent reduction of cellulite and local fat deposits (Comp., par. 14d); and (e) Respondents' Creme treatment does not cause permanent inch loss from the users' body and the permanent reduction of cellulite and fat deposits by shifting the location of fat cells, reshaping them, and making them more accessible to the users' circulatory system. (Comp., par. 14e)
SUMMARY FINDINGS OF FACT
1. Respondent Leo Daboub, 220 Nice Lane, #209, Newport Beach, CA 92663-2603, by means of advertisements appearing in publications of general circulation solicits remittances of money to be sent through the mail to Vita-Health Research, 369 E. 17th Street, Costa Mesa, CA 92627-3717; at 1011 Brioso Drive, Costa Mesa, CA 92627-3717; and at 177-F Riverside Drive, Newport Beach, CA 92663-4080 for a product called Orgi-nine.
2. Respondent Leo Daboub and his associate, Respondent Sandra Brooks, 1666 Newport Blvd., Costa Mesa, CA 92627-3717, by means of advertisements appearing in publications of general circulation, solicit remittances of money to be sent through the mail to the American Diet Association, 1666 Newport Blvd., Costa Mesa, CA 92627-3717 for the product referred to as Fast-Trim or Sandra Brooks Diet Program.
3. Respondent Leo Daboub by means of advertisements appearing in publications of general circulation solicits remittances of money to be sent through the mail to Nutritional Research, 177-F Riverside Drive, Newport Beach, CA 92663-2603 and to American Diet Association, 1666 Newport Blvd., Costa Mesa, CA 92627-3717 for a product referred to as Energetic Contour Creme Treatment.
4. With respect to the above products, Respondents make, expressly or by implication, by affirmative statements or by omission, in substance and effect, the respective representations set forth in paragraphs 8, 11, and 14 of the Complaint.
5. The claims alleged in paragraphs 8, 11, and 14 of the Complaint are material representations.
6. The material representations herein found to be made by Respondents are false as to matters of fact.
7. Respondents, including Sandra Brooks insofar as the product Fast-Trim is concerned, are engaged in a scheme, or schemes, to obtain money through the mail by means of false representation.
CONCLUSIONS OF LAW
1. In addition to the considerations stated in Part III of this decision relative to the status of Ms. Brooks in this proceeding, there are other matters which make it appropriate as a matter of law to conclude that she is properly a Respondent in all matters relating to Fast-Trim. These were statements made by Mr. Gilliland in which he recounted conversations with Ms. Brooks in which her statements connected her directly, and in association with Leo Daboub, with activities in the operation of the Fast-Trim business, its advertising and public relations, and in participating in the profits of the business. While she claimed in the Answer that she was not connected in any way with the business, or with the entrepreneurs, that claim was overcome in probative effect by her contrary statements reflected in Gilliland's testimony. Her failure to take the stand to refute Mr. Gilliland's testimony permits the inference that her testimony, if she had testified honestly, as to her being engaged in the business, at least in the Fast-Trim operation, would have been unfavorable to her claim of complete dissociation from any phase of any of the Respondents' businesses. (2 Wigmore, Evidence 259 (Chadbourn rev.) 1979; Gard, Jones on Evidence, 22.12, 6th Ed., 1972) Particularly is the last statement true in view of the strong argument of Respondent's Counsel for the right, which was granted, to call Ms. Brooks "to testify about matters that Mr. Gilliland brought up in the direct examination." (Tr. 540-543) Despite all of the foregoing, Ms. Brooks failed to testify.
Finally, even if, as Ms. Brooks claimed, she had severed all connection with the operation of Fast-Trim, that fact, alone, would not "deprive the tribunal of power to hear and determine the case * * *." (United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953), and the cases there cited; Hampton v. Mow Sun Wong, 4256 U.S. 88, 98 (1976))
2. The purpose of 39 U.S. Code 3005 is to protect the public, both the wary and the gullible, and the Postal Service is an instrumentality through which this protection is to be provided. Lynch v. Blount, 389 F. Supp. 689, S.D.N.Y. (1971), aff'd 404 U.S. 1007 (1972); Gottlieb v. Schaffer, 141 F. Supp. 7 at 15-16, S.D.N.Y. (1956). In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 772 fn. 24, (1975), quoting from United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924), it was said: "It is not difficult to choose statements, designs and devices which will not deceive." " * * * Advertisements which are capable of two meanings, one of which is false, are misleading * * *. Advertisements which create a false impression, although literally true, may be prohibited." Rhodes Pharmacal Co. v. F.T.C., 208 F.2d 382, 387 (7th Cir. 1953), modified on other grounds, 348 U.S. 940 (1954).
The meaning of advertising representations is to be judged from a consideration of the advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine, 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 461 (S.D.N.Y., 1957); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D.N.Y., 1959). Express representations are not required. It is the net impression which the advertisement is likely to make upon purchasers to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it the mail fraud statutes are applicable. G. J. Howard v. Cassidy, 162 F. Supp. 568.
3. Application of the foregoing criteria to Respondent's sales materials requires the conclusion that the Respondents, in the advertising matter received in evidence in this proceeding, make the representations alleged in paragraphs 8, 11, and 14 of the Complaint.
4. The person of ordinary mind, on reading Respondents' advertisements, would interpret them substantially as expressed in paragraphs 8, 11, and 14 of the Complaint.
5. The offering of a product for use with a given condition implies that it will cure or effectively treat that condition. Aronberg v. F.T.C., 132 F.2d 165, 167 (7th Cir., 1942). See, also, Rhodes Pharmacal Co., Inc. v. F.T.C., supra, at 386.
6. Following the rule just stated above, it is concluded that the representations herein found to have been made by Respondents are material representations for the reason that they can, and do, cause readers of Respondents' advertising to buy Respondents' products and to enroll in Respondents' programs, which the readers would not do had the truth been told in the advertising. Chaachou v. American Central Insurance Co., 241 F.2d 889, 893 (5th Cir. 1957).
7. Complainant has established its case by a preponderance of the competent, reliable, and probative evidence of record. S.E.C. v. Savoy Industries, 587 F.2d 1149, 1168 (D.C. Cir. 1978); S.E.C. v. National Student Marketing, 457 F. Supp. 682, 701 n. 43 (D.D.C. 1978); Wilmont Products, P.S. Docket No. 6/46 (P.S.D. 1979); Gard, Jones on Evidence, 30:4 (1972); Wigmore, Evidence, 2498 (3d ed. 1940).
8. The representations specified in paragraphs 8, 11, and 14 of the Complaint are materially false.
9. A promise to refund if a customer is dissatisfied will not dispel the effect of false advertisements. Farley v. Heininger, 105 F.2d 79 (D.C. Cir. 1939); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959).
10. Respondent is engaged in the conduct of a scheme for obtaining remittances of money through the mails by means of materially false representations in violation of 39 U.S.C. 3005.
The last half of Respondents' Proposed Findings of Fact and Conclusions of Law is comprised of arguments that both sections 3005 and 3012 of Title 39 United States Code are violative of the Constitution of the United States. Of these provisions of law it is said, inter alia, that they are overly broad; that they violate the right of free speech which commercial enterprises are entitled to exercise; and that if a cease and desist order issues against Respondents, the immediate effect will be in the imposition of a "chilling effect" on Respondent, even in the pursuit of lawful activities.
The above questions, and others involving the constitutionality of statutes and the validity of Postal Service regulations, are areas which Administrative Law Judges may not enter. 39 C.F.R. 224.1(c)(4)(iv)(B); see, also, McGrath v. Weinberger, 541 F.2d 249, 251 (CA 10 1976)).
Proposed findings of fact and conclusions of law submitted by the parties in this case have been fully considered. Such proposed findings of fact and conclusions of law have been adopted to the extent herein indicated. Otherwise, such proposals are rejected because they are unsupported by and contrary to the law and the evidence in this case or because of their irrelevance or immateriality.
THE APPROPRIATE ORDER
Complainant filed a pre-trial memorandum in this proceeding briefly describing the type of Cease and Desist Orders that it is requesting be issued against the Respondents Sandra Brooks and Leo Daboub. So far as this writer is aware this is the first instance in which such a cease and desist order has been sought at the Postal Service. Complainant's pre-trial memorandum begins as follows:
"In the Complaint filed on September 26, 1984, Complainant requested that a Cease and Desist Order be issued against Respondents Sandra Brooks (Part III only) and Leo Daboub (Parts I-IV). Parts II, III and IV of the Cease and Desist Order Complainant has sought, refer specifically to the particular products involved in this case, i.e., Orgi-nine, Fast-Trim and Energetic Contour Creme or to substantially similar products. In general, the particular representations prohibited by parts II-IV of the Order track the representations alleged as false in the Complaint. Part I of the Order is not limited to the specific products in this case; rather it prohibits Respondent, Leo Daboub, from making certain representations with regard to any "product advertised to reduce weight and/or fat," which is sold through the mails. Part I of the Order essentially prohibits the Respondent from making with regard to all weight loss products the same type of representations it has made with regard to Orgi-nine, Fast-Trim and Energetic Contour Creme."
Complainant contends that while Respondent Daboub engaged in a "scheme" under 39 U.S. Code 3005 in the sale of Orgi-nine, Fast-Trim, and Energetic Contour Creme, his true purpose is to engage in a scheme that is much broader in scope than the sale of just those three products. Complainant submits, and the record strongly suggests that, in fact, Daboub has demonstrated that he is going to persist in offering for sale a variety of products represented as being capable of bringing about weight loss. Since this is so, the Cease and Desist Order (C&D) should be broad enough to reach any such business in which representations are employed which are similar to those used in this case. Complainant cites numerous cases supporting its position on this point, including, among others, F.T.C. v. Mandel Brothers, Inc., 359 U.S. 385, 392-393 (1959). The type of provisions in C&D's about which Complainant speaks are called "fencing-in" provisions. These provisions have been upheld in a number of situations, e.g., when their provisions are reasonably related to the unlawful act found to exist, Jacob Siegal Co. v. F.T.C., 327 U.S. 608 (1945); when, based on the violator's past conduct, there is a likelihood that he will perpetrate additional violations, American Home Products Corp. v. F.T.C., 695 F.2d 681 (9th Cir. 1982); "where a fair assessment of an advertiser's conduct shows a ready willingness to flout the law * * * ", and a "blatant and utter disregard" for the law, Sears Roebuck and Co. v. F.T.C., 676 F.2d 385, (9th Cir. 1982).
It has been shown that at the hearing, Complainant introduced evidence that in its advertising Respondent made many claims for the capabilities of its products in terms of the results to the users that are not only false but which are also impossible of accomplishment. This evidence was in the form of testimony of Dr. Drenick, who is a nationally known and recognized expert in the field of obesity, its causes and appropriate treatments. Further, there were received in evidence official Government documents which show repetitive breaches of agreements entered into by Respondent Daboub in which he agreed not to make certain representations about weight-reduction products, which representations are similar to those he has been found in this proceeding to make with respect to Orgi-nine, Fast-Trim, and Energetic Contour Creme. (CX-78 and 79) It is not difficult to show Mr. Daboub's (1) strong propensity to make insupportable claims as to the efficacy of his "weight loss" products, and (2) his "blatant and utter disregard" for the law.
Accordingly, mail stop orders and cease and desist orders substantially in the forms attached hereto should be issued against the Respondents.