In the Matter of the Complaint Against WEIDER DISTRIBUTORS, INC. d/b/a JOE WEIDER, 55 Maple Street at Norwood, New Jersey 07648 P.S. Docket No. 3/25July 17, 1974
William A. Duvall Chief Administrative Law Judge
Lee H. Harter, Esq., Law Department, United States Postal Service, Washington, D. C., for Complainant Sheldon S. Lustigman, Esq., Bass & Ullman, New York, New York, for Respondent Before: Willaim A. Duvall, Chief Administrative Law Judge
This proceeding, which was initiated by the filing of a Complaint on March 27, 1974, involves charges by the United States Postal Service, through its General Counsel (Complainant), that Weider Distributors, Inc. d/b/a Joe Weider, at Norwood, New Jersey, is engaged in the conduct of a scheme or device for obtaining money or property through the mails by means of false representations, contrary to the provisions of Section 3005 of Title 39, United States Code. The matter was heard on June 20 and 25, 1974.
In the Complaint it is alleged that Respondent attracts attention to its product by certain direct mail advertising material in which Respondent makes the following allegedly false representations in regard to its product:
(1) That use of Respondent's product is a "Super Way to build endurance";
(2) That use of Respondent's product improves the results its users may obtain from physical exercise;
(3) That use of Respondent's product has been shown by tests conducted by leading universities to be capable of increasing physical endurance by 51% and/or producing twice the increase in physical endurance which may be accomplished by exercise alone;
(4) That use of Respondent's product causes "MUSCLE GAINS [to] COME FASTER";
(5) That use of Respondent's product enables its users to improve physical endurance without the necessity of engaging in physical exercise.
A fair reading and interpretation of Respondent's advertising literature leads to the conclusions (1) that Respondent utilizes the mail in the sale of the product involved in this proceeding and (2) that Respondent makes the representations quoted above from the Complaint.
After the presentation of Complainant's case Respondent's Counsel moved to dismiss the Complaint on the ground that no prima facie case had been established. The motion was denied without prejudice to Respondent's right to renew the motion at a later stage in the proceeding.
As this case was presented, and as the Complainant's witness testified, the crucial question is whether vitamin E in the amounts contained in the Respondent's product will produce the results which are held forth by the Respondent in its advertising material. The entire case of the Complainant is built around the efficacy of vitamin E to accomplish the claimed results for the user.
When the Respondent presented its case, it was brought to our attention that the ingredient which is considered to be the active ingredient in Respondent's product is a substance known as octacosanol.
The Respondent's medical expert who is qualified by virtue of his education, training, and experience, including his performance as a member of the United States Olympic team of 1956, and including his responsibilities as coach of a collegiate swim team, testified that he is of the opinion, based upon his background, and his examination of the pertinent literature in the field, that this substance known as octacosanol will produce improvement in the results that may be achieved by an individual in terms of his endurance in athletic activity.
In a case such as this, it is not incumbent upon the Respondent to prove that his product is efficacious for the purposes for which it is being offered for sale. To the contrary, the burden is on the Complainant to show that the representations made by the Respondent about its product are false and materially false as a matter of fact.
In this proceeding, so far as I am now aware, and I must confess that my recollection is based upon a review of the notes taken by me at the first session of this hearing on June 20,2/ there was not one word of testimony by the Complainant's expert witness, who is entirely credible as a witness about the ingredient, octacosanol, which forms one of the constituents of this product.
Therefore, on the basis of the evidence of record in this proceeding, I find that the Complainant has failed to bear its burden of proof, and there is not sufficient proof in this record to form a basis for a finding that the Respondent has misrepresented its product.
I want the record to be perfectly clear that this ruling on this motion is not by any means to be considered or construed as a finding that the Respondent's product is efficacious for the purposes for which it is offered to the public. Rather, this ruling is a finding that if those representations are false, there is insufficient proof in this record to establish that fact.
On the basis of these considerations, therefore, the Respondent's motion for dismissal of the Complaint in this proceeding is hereby granted.
_________________