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U.S. Postal Service Case Against Mark Eden

In the Matter of the Complaint Against

 MARK EDEN at
 San Francisco, California

 P.O.D. Docket No. 2/204; 

 APPEARANCES:
 Ralph B. Manherz, Esq.
 and Abraham Levine, Esq.
 Office of the General Counsel
 Post Office Department
 for Complainant

 Nathan G. Gray, Esq.
 Berkeley, California
 and Stark & Champlin
 (Franklin C. Stark, Esq., John Wells, Esq.,
 John banker, Esq.)
 Oakland, California
 for Respondent

The complaint in the above-named case alleges that Mark Eden has been operating a fraudulent scheme in violation of 39 U.S. Code 4005, ^1/ that the Respondent is now and has been obtaining remittances of money through the mails by means of false and fraudulent pretenses, representations, and promises in the sale of a device for breast development.

There are three issues involved in this case: (1) does the Respondent make the representations as alleged in the complaint; (2) are the representations as alleged in the complaint materially false; and (3) are the representations made with the intent to deceive or defraud?

It is admitted by the Respondent that the advertising matter attached to the complaint is used and that the Respondent receives money in the mail for the product which is advertised.

The device, the subject of this case, is made of plastic, is of light weight and is small enough to be held by the hands; it has a clam-like shape with a spring between the two sections of the plastic opening. This device opens about four inches and is held in the palm of the hands. If the device is used as directed it will exercise various muscles in the chest area particularly the pectoral muscles which will be increased in size depending upon one's carrying out the instructions.

Mr. and Mrs. Jack Feather are the sole owners of the Mark Eden corporation. Mr. Feather received a B.A. in literature and expected to become a teacher. He is thirty-six years of age and along with his wife owns a chain of fourteen women's slenderizing salons. Tr. 406.

When he was a junior in college he had a spine injury which caused paralysis and later he contracted polio. He developed exercises which he followed religiously to help him with both the injury and polio and become completely recovered. He composed all of the exercise programs used in the salons and does all the advertising while his wife, Mrs. Feather, functions in the business end of the corporation.

Mr. Feather's position is--Tr. 461--"...that the pectoral muscles of a woman are just as responsive to exercise as those of a man and while they won't develop the same degree of thickness as a man's, they are capable of extreme hypertrophy, and I would say this happens in thousands of women who come to our salons. I have seen it happen to my wife. And the development of the pectoral muscle has a profound effect on the appearance of the entire bustline. The breasts are lifted, firmed, the skin is toned, the whole bustline takes on a more rounded, lifted, youthful, shapely appearance"--that "the contour, shape and actual size of the breast I believe will increase the tremendously increased blood supply brought on by the demand created on the muscle." Tr. 520. He used the device on himself and wife, but no on clients in the salons before it was sold but he had used the principle for a long time in the salons. He had never seen anything written on exercises developing the female bust--Tr. 503--and he did not seek medical experts' advice in formulating the ad.--Tr. 489.

Mr. Feather believes that the result of the use of the device has been successful because of the many letters which he has received of favorable comments; however, there are some complaints and Mr. Feather has refunded the money and often made the refund when the time limit for refunding had expired.

Mrs. Eileen Feather is, according to her husband, the business head who trains the technicians on the floor of the salons to make the measurements of women which are recorded on the cards that are kept in the establishment. It was from these cards that Dr. Williams, infra, made his report. The measurements of the women are made by plastic tape measures since cloth tape measures shrink. The bust measurement is always made straight across the back and across the fuller portion of the bust.

What are the representations on the advertisement, a copy of which is attached to this opinion? Are they false and is there an intent to defraud? With a look at the advertisement one's attention is drawn to the breasts of the model. I don't think there is any doubt that the breasts are the attraction so in what is said in the representations a reader would have in mind the breasts. The ad sets out first that Mark Eden is a world figure authority yet there is nothing in the testimony to show that Mark Eden is such a person. The ad goes on to say, "A method so sure, so positive, so effective that he can guarantee any woman that she will gain at least three full inches on her bust by following his program." (The underscoring is shown on the ad.) The method is using the device is alluded to as "The Secret of the Stars." We can take judicial notice of these words as referring to stars in the entertainment world. The only star who testified and who is alluded to in evidence is Miss June Wilkinson. The ad further reads "Scientific breakthrough for even the most stubborn cases." In this day and age of science and scientific achievement this statement is most important. Reading further on the ad says, "Now for the first time, Mark Eden is making his secret of the stars available to all the women in America who want to build full, rounded, beautiful bustlines... Younger, ambitious women who want the limit in bust development have put three, four, five--even six inches on their bustlines in an amazingly short time with this fabulous Mark Eden method."

Dr. Ralph Waldo Weilerstein testified for the Complainant. He and the doctors called to testify for the Respondent have notable backgrounds. Dr. Weilerstein's field is obstetrics and gynecology. He has been a federal director for thirty years as medical officer in the Food and Drug Administration. He maintains that there is no connection between the pectoral muscle and the breast; that the exercises in the use of the device would cause no change in size or contour of the breast. Dr. Weilerstein and the three doctors who testified for the Respondent all said in substance in their testimony that there are no studies and no literature which show the effect of the pectoral muscle on the breast. They do agree, however, that there is no literature saying that there is not an effect and on this latter statement the Respondent greatly relies.

Dr. Henry James Ralston, a physiologist and one specializing in neuromuscular physiology, was the first witness called by the Respondent. Dr. Ralston said the device would increase the strength of the pectoral muscles as all of the doctors agreed, but he added--Tr. 259--"one cannot anticipate what is going to happen." He said it depends on habit, illness--all sorts of things, and added--Tr. 284--that it seemed self-evident that a change in the size of the pectorals would change the contour of the breast because the breast sits or floats upon the underlying structures; however, he agreed with all the doctors that there are no studies that can be found that express the effect of pectoral muscles on the breast. He further testified that the exercise of the pectoral muscle has been known for a long time that this is not new as advocated by Mr. Feather and that Mr. Jack V. Feather's study wouldn't be accepted at a university.

Dr. Lawrence W. Kinsell, the discoverer of the importance of unsaturated fat, was called by the Respondent. He is a specialist in endocrine and metabolic diseases and does clinical investigation in these fields. He said--Tr. 589--"...there is no meaningful evidence one way or another" on the effect upon the breast of the developing of the pectoralis major and minor muscles. He did say that there was an increase of the blood supply to the breast because of the exercises. He further testified that there was no reliable, meaningful information--Tr. 594--on effects of exercising the pectoralis muscles on storage of fat in the breast. He was impressed by what Mr. Feather, one of the owners of the corporation involved in this matter, had done but he stated that he wouldn't report the statistical matter indicating that there was an increase in the breast size. He said a three-inch increase would surprise him in the average woman--that some women might have that increase "but with the average it would be unlikely. I mean even with very strenuous exercise." Tr. 609.

Dr. John Robert Close, a specialist in orthopedic surgery who for ten years has worked on a research project of the neuromuscular type, was one of the doctors called by the Respondent. He also made the statement that he didn't know of any medical literature on "effect on breast or mammary gland of the female from exercise of the pectoralis muscles." Tr. 696.

Dr. Close was employed by the correspondents, Mr. and Mrs. Feather, to see what the effect of exercising the pectoralis muscles was on the breast so he made some practical tests on five women. Tr. 704. Using special equipment he took Polaroid pictures of each woman using the device. Before the tests were made he took measurements of the breast area on May 8 and measurements after the exercises were concluded on May 22. One of his measurements was under the armpit keeping the tape horizontal; the second measurement was made at the nipple line; and the third was made just below the breast. Tr. 715. He found that there was an increase over the measurements taken on May 8 in these areas but that except for two cases the nipple line increase was exceeded by one or the other measurements. Dr. Close went on to say that there would be an enlargement of most of the structures concerned. Tr. 698. "I believe there would be increased diameter--increased circumference, that is, on the bustline, and other parts of the chest"--"because of the hypertrophy or increase in the size of the muscle." He went on to say that based on logic and his experience that "there would have to be some effect on the gland that would necessarily follow hypertrophy of this muscle. Hypertrophy of the muscle would follow in vascularity, that is, the blood vessels would be more plentiful and larger, and it would be quite impossible for those vessels which perforate the outer pectoral facia, and then enter the mammary gland not to be larger also in that organ, and with this increased blood supply, I would most certainly expect changes that would result in enlargement. The degree I am not aware of." Tr. 700. The testimony of Dr. Close was the most favorable given for Respondent. He commented that it is well known there is some error in making measurements with tapes and that he did not make any measurements of the breast itself during the tests. He said to make such a measurement would be a "silly thing to do." His testimony also agreed with Dr. Ralston when he said he wouldn't deliver a scientific paper on the basis of his research.

Surely if the proposed discovery as advertised by Mark Eden is not worthy of being presented to a medical conference, it is then not what it is advertised to be. Dr. Ralston described what he thought constituted a scientific study as follows: "You would set this up involving a group of subjects who could be controlled in terms of diet, or habits of sleep and terms of that sort. Then you would study these forces over a period of six weeks, let's say, and control them with a controlled series of subjects of a similar character who did everything the same as these experiments to see if there were any changes that occurred in their muscles as a result of chance. This would be a controlled lab study. Now, if you would do this in a lab, you would set it up in this fashion, namely, that you would have a certain specified position; you would have a certain specified regime, and that would be controlled by another group pretending to do the exercise. You might have a little weak spring where everybody would be the same, except they never really did anything. that would be controlled, a controlled scientific study." Tr. 311. This is quite different from the method used by the Feathers who advertised that they had a scientific breakthrough.

Miss June Wilkinson, an actress and one who admitted--Tr. 369--that she had always had prominent breasts, was called by the Respondent. Mrs. Eileen Feather, one of the owners of the Mark Eden corporation, had sent Miss Wilkinson the device which she used daily for about three weeks. Miss Wilkinson said she added approximately two inches in the bosom--that she was sure that the "muscle would have something to do with making it larger."--Tr. 387. For the picture in the advertisement she said she was wearing a Merry Widow brassiere--that the brassiere tended to lift and to make more prominent the appearance of the breasts. Tr. 370. Before Miss Wilkinson used the device she wore a brassiere with a size "D" cup but she said she didn't fill it; however, since she took the exercises she said she did--Tr. 353--adding two inches in the bosom. She received $1,000 for the use of her picture and the endorsement and 25 cents on the sale of each device. Tr. 365. Some 18,000 have been sold. Tr. 367.

Dr. Alvin Dennie Williams, a professional statistician, testified for the Respondent. Dr. Williams, due to limited time, took a 20 per cent random sample among the original cards from the Mark Eden files that were presented to him by the Feathers. He took 376 cards. Tr. 561. The information on the cards met a particular criteria. The criteria for the cards that were used by Dr. Williams had to show that the woman was between 18 and 45, no over 150 pounds, and the weight had to remain the same or she had to have lost weight from zero to ten pounds. Through this information it showed that the woman was on "bust exercises." Tr. 544. These cards constituted records of women who had been enrolled in the Salons of the Feathers prior to 1962. The result of the tabulation of the differences in the bust measurements recorded on the 376 cards composed six staped sheets--Respondent's

Exhibit 13. The tabulation according to Dr. Williams showed--Tr. 563 and 564--that 111 had a loss of measurement on the bust; that 218 had an increase in bust measurement; there were some who stayed the same with no increase or decrease in bust measurements. Dr. Williams said--Tr. 569--that out of a thousand women there would be twenty who would show an increase of three inches or more in their bust. He found in computing the measurements listed on the cards that the waist, hip and thigh measurements all decreased while the bust measurement increased. Tr. 575.

Three women who worked in the Feathers' Salons were asked to take the Mark Eden device and follow the directions set out in the booklet to see what the results would be. Each woman was to receive $100 from the Feathers for engaging in the tests.

Emma Louise Dean was the first woman called. She said before the test she took a 34-A cup padded bra but at the time of the hearing she took a 34-C cup bra and said she was satisfied with the device. Diane Wingfield was the next woman called who said that she took a 34-A cup bra before the test and after the test she took a 34-B cup bra unpadded. The third woman called was Sally Armstrong who said that before the test she took a 34 bra that was between a "B" cup and a "C" cup--that the 34-C bra had to have some stitches taken in it but after the test the stitches had to be removed.

The testimony shows that there is no study or literature on the effect the pectoral muscles have on the breast. Neither is there literature nor studies that there is not an effect. To use the latter statement as a pillar of support for the Respondent's position in this case is superficial. The pectoral muscles according to the testimony can be developed with the result that there may be an increase in the chest measurement. But when one sees the advertisement which is hereto attached the emphasis is on the breasts--the mammary glands--and what one reads on the advertisement supports the impression that the breasts are the subject which can be increased in size and changed in shape and made firm and beautiful by using the Mark Eden device by following the directions in the booklet of instructions. There is nothing in the testimony to support the advertisement "...that he can guarantee any woman that she will gain at least three full inches on her bust by following his program." (The underscoring is in the ad.) This is such an extreme statement and such an exaggeration of fact that it becomes a fraudulent statement.

Mr. Wells, attorney for the Respondent, said--Tr. 29--"We made no effort to prove through any of these doctors that the device works and causes an increase in the breast. We did make an effort to prove that but not through these doctors and their opinions because they don't have any knowledge on this subject. Nobody has ever paid any attention to this area in the medical profession." He went on to say--Tr. 30--"Our purpose in producing these doctors was basically two-fold, to show there is no universality of medical opinion that supports Dr. Weilerstein's testimony... . And secondly, to get their opinions, it is just as possible as not that this thing does do something. ...And further, maybe this is a third purpose, to get their opinions as to how it might conceivably be effective." Throughout the testimony and the argument Counsel for the Respondent has emphasized that since there is no universality of scientific opinion there can be no fraud. I do not believe this is a sound argument in this particular case because it is distinguishable from the American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902) in which is involved the influence of the mind upon the physical condition of the body. There is no actual standard in the McAnnulty case of absolute truth by which to prove the assertion false and a fraud. In the instant case actual measurements can be made to determine the truth of the statement in the advertisement. There were measurements made of the bustline but not of the breasts. In the McAnnulty case there cannot be a measurement of the efficacy of the effect of the mind over the body. The dialogue then rests upon opinion and in the McAnnulty case there is a divergence of opinion. Reilly v. Pinkus, 338 U.S. 269 (1949) is also distinguishable as are other cases cited in defense of the Respondent's position. I believe that the case of Leach v. Carlile, 258 U.S. 138 (1922) is an applicable one. There were some measurements of the bustline that did show some increase but certainly not to the extent of what was represented in the advertisement. The five women who testified, supra, as to showing that they needed, after following the instructions of the method, larger cups in their brassieres still do not support the representations made in the advertisement. The ad says in one place "all women" and in another place "any woman" and gives the increase in inches as three, four, five, and even six inches. These statements far exceed puffing. The American people have the right to believe and many of them do believe advertisements. They have a right to believe that when one says he is a world figure authority that he can produce evidence of recognition--that if he says there has been a scientific breakthrough that he has actually followed a scientific laboratory method. There is substantial evidence that the representations as set out in the attached copy of the advertisement involved in this case are false. They are the kind of representations that would invite women to buy the device. These are material misrepresentations.

There is no evidence to support the statement that Mark Eden is a world figure authority. There was nothing in the testimony to show that Mr. and Mrs. Feather have had any recognition as to being world figure authorities. There is nothing in the testimony to show that the Mark Eden device is a "secret of the stars." June Wilkinson was known for her prominent breasts long before she took the three-week exercises with the Mark Eden device. She is the only star mentioned in the testimony. There is no question but that "the stars" in the advertisement mean the theatrical stars.

According to all of the doctors' testimony there has been no "scientific breakthrough" because Dr. Ralston along with Dr. Close said they would not present what they had found relative to the Mark Eden device to a medical conference. Dr. Ralston, supra, described what he thought was a scientific research program. To say there is a scientific breakthrough for even the most stubborn cases is a gross overstatement of the result that Dr. Williams reached when he found that his analysis would be that only 20 women out of 1,000 would show an increase of three inches. If this is the case, there wouldn't be a chance for the "stubborn" cases to be increased.

The evidence shows that the development of the pectoral muscles can be increased by using the Mark Eden device and that the effect on the breasts--the mammary glands--would be minimal, if any.

There have been no measurements of the breasts themselves--only measurements of the bustline.

Mr. and Mrs. Feather have been in the "body-building business" for several years. They appear to be intelligent people who have had a great deal of experience. Mr. Feather had come to the conclusion that certain exercises developed the bust. The Mark Eden Corporation didn't let Mr. Feather's conclusion rest with the bustline but apparently decided to emphasize the female breast--the mammary glands. There is no evidence to show that the Feathers made any contact with the medical profession until after this case was filed. The advertisement attached to the complaint emphasizes the female breasts of a motion picture star who was known for her prominent breasts when she was a young girl.

The Respondent has made the representations as alleged in the complaint, the representations as alleged are materially false. Considering the background of Mr. and Mrs. Feather in education and business and expe 'rience, they knew that the product does not do what the attached ad says it will. The advertisement far exceeds puffing to the extent that the statements made are false. There is a clear intent to deceive.

A fraud order will hereby issue.

11/04/66

Bosone, Reva Beck

1/ The statute, 39 U.S. Code 4005, reads so far as here pertinent: "Upon evidence satisfactory to the Postmaster General that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false or fraudulent pretenses, representations, or promises; ****; the Postmaster General may--

(1) direct postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representative, to return the registered letters or other letters or mail to the sender marked 'fraudulent' ***; and

(2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes.

* * * * * *"