In the Matter of the Complaint Against

ATHENA PRODUCTS, LTD.
3176 Marjan Drive
at Atlanta, GA 30340

ATHENA PRODUCTS, LTD.
P. O. Box 81371
at Atlanta, GA 30366 and

ATHENA PRODUCTS, LTD.
P. O. Box 29274
at Atlanta, GA 30359

P.S. Docket No. 7/99;

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
KristinL. Malmberg, Esq.
Thomas A. Ziebarth, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, D.C. 20260

APPEARANCE FOR RESPONDENT:
Tom B. Benham, Esq.
6600 Powers Ferry Road, N.W.
Atlanta, GA 30339

POSTAL SERVICE DECISION

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

On October 22, 1979, the Consumer Protection Division, Law Department, United States Postal Service, filed a Complaint alleging that Respondent is engaged in a scheme to obtain money through the mail in violation of 39 U.S. Code § 3005. Specifically, in paragraphs III and IV the Complaint alleges:

"III

By means of the aforementioned advertising matter, Respondent expressly or impliedly represents to the public in substance and effect, that:

(a) NEW START NATURAL HAIR VITAMINS will nourish hair.

(b) NEW START NATURAL HAIR VITAMINS will make the user's hair healthier.

(c) An individual who maintains a well-balanced diet may have poorly nourished hair that can be remedied with NEW START NATURAL HAIR VITAMINS.

(d) Individuals experiencing poor hair growth are likely to be suffering from a zinc deficiency.

(e) NEW START NATURAL HAIR VITAMINS will be effective in aiding hair growth of individuals without a severe deficiency of zinc.

(f) Biotin in NEW START NATURAL HAIR VITAMINS will prevent hair loss and reverse baldness.

(g) Scientifically valid studies have credited biotin with preventing hair loss and reversing baldness.

(h) The folic acid in NEW START NATURAL HAIR VITAMINS will maintain color and delay greying of an individual's hair.

(i) The iodine and calcium pantothenate in NEW START NATURAL HAIR VITAMINS will cause the hair of an individual to become thicker and more lustrous.

(j) The iron and copper in NEW START NATURAL HAIR VITAMINS will cause an individual to have improved blood circulation to the scalp.

(k) Niacin, inositol, vitamin B-12 and other nutrients in NEW START NATURAL HAIR VITAMINS help the body to provide proper nutrition to the hair.

IV

The aforesaid representations are materially false as a matter of fact."

In its Answer, dated November 13, 1979, Respondent admitted the allegations in paragraphs III(a) and (b) of the Complaint while denying the remainder of the allegations. Various motions were filed by the parties, both before and after the Answer was filed. Respondent's motion for a continuance of the hearing resulted in the hearing being rescheduled from November 26, 1979, to January 8, 1980. The hearing was held as rescheduled.

At the hearing Complainant presented the testimony of a Postal Inspector and two expert witnesses, Dr. Karl J. Kramer, a medical doctor specializing in dermatology and internal medicine (Tr. 35, 36), and Dr. Robert D. Reynolds, a research chemist who at the time of the hearing was engaged in research relating to Vitamin b 6 (Tr. 111). Respondent presented the testimony of its Vice President for Marketing, Mr. Richard Blumberg, and three expert witnesses, Dr. Richard S. Lord, a biochemist and owner of a laboratory doing hair analysis and diet and nutrition consultation with physicians (Tr. 304, 306), Dr. Irwin I. Lubowe, a medical doctor specializing in dermatology, especially hair and scalp problems (Tr. 269, 291), and Mr. Francis Hagen, a journalist who has concentrated on nutrition as it affects hair and weight (Tr. 350). Both parties introduced documentary evidence and participated in the examination and cross-examination of the witnesses at the hearing.

On the basis of the testimony received and the exhibits in the record, the Administrative Law Judge concluded that Respondent makes the representations alleged in the Complaint and that the representations are materially false. Accordingly, he concluded that Respondent is in violation of 39 U.S.C. § 3005.

In its Appeal Brief, Respondent enumerates 35 "Exceptions to Specific Findings and Conclusions." Respondent also makes several arguments in the opening section of its Brief entitled "Statement of Case," which it reiterates in whole or in part under one of its 35 specific exceptions. These arguments are considered under the appropriate specific exception, each of which is hereafter addressed.

EXCEPTIONS TO SPECIFIC FINDINGS AND CONCLUSIONS

EXCEPTION 1

"The Administrative Law Judge erred in failing to grant the Respondent's Motion for Continuance for a trial date to and through February 29, 1980. This denial occurred as a result of an Order of the Court dated November 16, 1979."

Respondent contends that the failure to grant a "continuance of the hearing to February 29, 1980, denied it due process and equal protection under the law as guaranteed by the 14th Amendment of the United States Constitution." Respondent argues that while Complainant had over six months to prepare its case and the presiding Administrative Law Judge took seven months to prepare a Decision, it was not even granted four months to prepare for the hearing.

Respondent's original request for the continuance of the hearing from November 26, 1979, to February 29, 1980, was contained in its motion dated November 5, 1979, in which it contended that any hearing before February 29, 1980, would not allow it adequate time to prepare its defense and would constitute a violation of due process. Respondent raised these same issues in its Answer to the Complaint in its third and fourth defenses:

"THIRD DEFENSE

The scheduling of a hearing in the within case on November 26, 1979, some twenty-six (26) days after service of the Complaint, denies the Respondent, ATHENA PRODUCTS, LTD., due process of law as set forth in Section 1 of the Fourteenth Amendment of the United States Constitution.

FOURTH DEFENSE

the scheduling of a hearing in the within case on any day prior to February 29, 1980, provides the Respondent with an inadequate time to prepare a defense and thus denies the Respondent due process of law as set forth in Section 1 of the Fourteenth Amendment to the United States Constitution."

By Order dated November 16, 1979, the presiding Administrative Law Judge denied Respondent's request for a continuance to February 29, 1980, but granted a continuance to December 27, 1979. Subsequently, the hearing was continued to January 8, 1980, over Complainant's objection, Respondent's untimely motion to have the hearing held in Atlanta, GA was granted. At the hearing, Respondent again argued that it had been allowed inadequate time to prepare for the hearing (Tr. 378-381).

While Respondent contends that it should have been granted a longer period to prepare for the hearing, its request for a continuance did not establish good cause as required by 39 C.F.R. § 952.13 for a longer continuance than was granted. In addition, on appeal it has not shown that the period allowed was inadequate or that it was in any way prejudiced in the preparation of its case (see Tr. pp. 383-84). Moreover, since the representations being questioned in this proceeding are those made by Respondent, it should have had no difficulty obtaining evidence to support its position. See Doctor's Diet Plan, P.S. Docket No. 6/77 (Recon. Denied P.S.D. 1979). Furthermore, while it is not altogether clear, it appears that at the hearing, Respondent withdrew certain of its defenses, including defenses 3 & 4 (Tr. 378-385). A defense which has been withdrawn before an Administrative Law Judge does ot serve as a proper basis for appealing an adverse Initial Decision. Cf. In re Johnson, 518 F.2d 246 (9th Cir. 1975) cert. denied; Clark v. Johnson, 423 U.S. 893 (1975).

Accordingly, Respondent's Exception 1 is without merit.

EXCEPTION 2

"The Court erred in its order of November 16, 1979 in failing to allow the Respondent an opportunity to prepare its case by taking the deposition of opposing expert witnesses."

Respondent argues that the denial of its motion to take the depositions of Complainant's experts deprived it of any ability to prepare for the hearing since the experts were the only witnesses of substance presented by Complainant. According to Respondent, Complainant placed in issue the benefits of vitamin supplementation through the testimony of its experts, which was not an issue raised by the pleadings, and presumably had its motion to take depositions been granted, Respondent would have learned of the issue prior to the hearing. Respondent also argues that its motion should have been granted under the Federal Rules of Civil Procedure.

Complainant contends that the presiding Administrative Law Judge correctly denied Respondent's motion because the Rules of Practice do not provide for discovery depositions and further because Respondent was provided sufficient information about the expected testimony of Complainant's experts to allow it to prepare for hearing.

On November 7, 1979, Respondent filed a motion to require the deposition of Complainant's experts and a motion to compel answers to interrogatories, including interrogatories seeking information about Complainant's experts. Respondent's motion to take the deposition of Complainant's experts included no showing of cause therefor. In its Answer dated November 13, 1979, Respondent included as its fifth defense:

"FIFTH DEFENSE

The Rules of Practice and Proceedings relative to false representations deny the Respondent due process of law in the within case as set forth in Section 1 of the Fourteenth Amendment of the United States Constitution in the following respects:

(a) The Rules fail to provide for a means of preparing an adequate defense by normal discovery available in state and federal courts.

(b) The Rules fail to provide for the subpoena of witnesses either for discovery or trial, thus limiting the ability to provide an adequate defense available in state and federal courts.

(c) The Rules limit the use of authoritative writings of the medical or other sciences, thus prejudicing the right of the Respondent to prepare an adequate defense.

(d) The Rules limit the use of lay testimony, thus prejudicing the rights of the Respondent to present an adequate defense."

Respondent's motion to take the depositions of Complainant's expert witnesses was denied in the Order of the presiding Administrative Law Judge of November 16, 1979. The Order stated: "(a) there is no provision in the Rules of Practice governing this proceeding for the granting of such a motion; and (b) the Federal Rules of Civil Procedure do not provide for depositions of expert witnesses for discovery purposes." However, in the same Order the presiding Administrative Law Judge directed each party to furnish to the opposing party (1) the name and address of each witness to be called; (2) a concise summary of the testimony to be given by each witness; (3) a copy of each scientific writing upon which each witness intends to rely; and (4) a typewritten cirriculum vitae of every person to be called to testify as an expert witness.

Complainant fully complied with the Order of the Administrative Law Judge of November 16, 1979, and furnished a copy of the information required by the Order to Respondent on December 19, 1979. The summaries of testimony and the remainder of the data furnished by Complainant, along with the Complaint, were sufficient to place Respondent on notice of the issues on which testimony was to be given at the hearing. Vitamin supplementation in general is not an issue in this proceeding, despite Respondent's argument to the contrary. As is clear from the pleadings are issues are whether Respondent makes the representations alleged in the Complaint and whether those representations are materially false. Thus, the denial of the motion to take the deposition of Complainant's experts has not been shown to have deprived Respondent of the ability to prepare for hearing.

The Federal Rules of Civil Procedure do not lend support to Respondent's position that the deposition should have been allowed. If those Rules were applicable to this proceeding, Rule 26(b)(4)(A) would apply, not Rule 26 (b)(4)(B) which is the Rule discussed by the Courts in the cases cited by Respondent. Rule 26(b)(4)(A) provides for the service of interrogatories to identify the expert witnesses to be called, the subject matter of the experts' testimony, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The Rule also provides that on motion of a party, further discovery, which would include depositions, is allowable at the discretion of the Court. The data allowed by the presiding Administrative Law Judge conforms to Rule 26(b)(4)(A). Since counsel made no effort to show cause in support of its request for the deposition of Complainant's experts, the refusal to order their taking would have been a proper exercise of discretion under Rule 26(b)(4)(A) had it been applicable.

At the hearing it appears that Respondent withdrew its fifth defense which questioned the adequacy of the discovery procedures provided in the Rules of Practice (Tr. 378-385). Thus, to the extent this Exception relates to matters previously withdrawn, it provides no basis for appeal.

Accordingly, it was not error to deny Respondent's motion to take depositions of Complainant's experts. Exception 2 is therefore without merit.

EXCEPTION 3

"Error occurred by allowing an Administrative Judge to hear and decide the within action who, to the belief of the Respondent, has a history of employment with the United States Postal Service and its predecessor, representing said service as an attorney and as a result of this background, is predisposed to the viewpoint of employees of the Postal Service representing the Postal Service's advocates in the same role in which the Administrative Law Judge previously served. It is impossible for a person with such a background and experience to act with objectivity and impartiality in such a role and, as such, a new trial should be granted naming as a finder of fact and decider of law some person who is in a position to objectively decide the case."

In support of this exception Respondent states that although it has no way of knowing what the past relationship of the presiding Administrative Law Judge has been with the United States Postal Service, it has reason to believe that he has had a long history of service as an attorney with the Postal Service and its predecessor. Accordingly, Respondent argues it is difficult for it to perceive how the Administrative Law Judge could exclusively decide issues of fact and conclusions of law relative to the same agency with which he has had employment as an attorney. Respondent further argues that " i f an association of prior employment has existed, than the Administrative Law Judge should be disqualified." In support of its argument Respondent cites 28 U.S.C.A. § 455(a) which provides: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which its impartiality might reasonably be questioned." (Emphasis added)

Respondent's argument in support of this exception concedes it has no reasonable basis for questioning the impartiality of the presiding Administrative Law Judge. Moreover, it has pointed out no instance of lack of objectivity or bias on the part of the presiding Administrative Law Judge and none is perceived from a review of the record. Furthermore, its assertion of bias was neither timely filed nor in proper form. See 28 U.S.C.A. § 144.

Even if the presiding Administrative Law Judge had recently been an attorney for the Postal Service, as Respondent alleges might have been the case, such past employment would not necessarily serve as a basis for disqualification from participation in this proceeding. However, the presiding Administrative Law Judge or Hearing Examiner qualified under the Administrative Procedure Act, since at least early 1959. See Jefferson Creations, Inc., P.O.D. Docket No. 1/87 (I.D. Feb. 18, 1959).

On the record presented the impartiality of the presiding Administrative Law Judge cannot be reasonably questioned and therefore no grounds for disqualification exists. Respondent's exception is accordingly without merit.

EXCEPTION 4

"The Court erred in Finding of Fact number 5 on page 6 of the Court's decision in holding that Respondent's advertisements represent as charged in paragraph 3(c) of the Complaint."

EXCEPTION 5

"The Administrative Law Judge erred in Finding of Fact number 6 on page 6 of the initial decision by holding that Respondent makes the representation alleged in paragraph 3(d) of the Complaint."

EXCEPTION 6

"The Court erred in Finding of Fact number 7 on page 6 of the initial decision in holding that Respondent makes the representations alleged in paragraph 3(e) of the Complaint."

EXCEPTION 7

"The Administrative Law Judge erred in the initial decision in Finding of Fact number 8 on page 7 of the initial decision by holding that the Respondent makes the representations alleged in paragraph 3(f) of the Complaint."

EXCEPTION 8

"The Administrative Law Judge erred in Finding of Fact number 9 on page 7 of the initial decision by finding that the Respondent makes the representations set forth in paragraph 3(g) of the Complaint."

EXCEPTION 9

"The Administrative Law Judge erred in Finding of Fact number 10 on page 7 of the initial decision by finding that the Respondent makes the representations set forth in paragraph 3(h) of the Complaint."

EXCEPTION 10

"The Administrative Law Judge erred in Finding of Fact number 11 on page 7 of the initial decision by finding that the Respondent makes the representation alleged in paragraph 3(i) of the Compliant."

EXCEPTION 11

"The Administrative Law Judge erred in Finding of Fact number 12 on page 7 of the initial decision by finding that the Respondent makes the representations set forth in paragraph 3(j) of the Complaint."

These Exceptions take issue with Findings of Fact 5 thru 12 in which the Administrative Law Judge determined that Respondent makes the representations alleged in paragraphs III(c) through (j) of the Complaint. In the Initial Decision the Administrative Law Judge quotes the language of Respondent's advertising on which his findings are based. A review of the quoted language of Respondent's advertising as well as the remaining portions of the advertising supports the conclusion that the ordinary reader would most probably conclude that the representations are either expressly or impliedly made. Accordingly, there is no merit to Respondent's Exceptions 4 thru 11.

EXCEPTION 12

"The Administrative Law Judge erred in Finding of Fact number 14 on page 8 of the initial decision by finding all representations made by Respondent to be 'material representations.'"

In Finding of Fact 14 the presiding Administrative Law Judge properly found that the representations made by Respondent are material in that they are of such character and content as would normally be expected to cause readers at whom they are directed to respond by ordering and making remittances of money for Respondent's product. See F.T.C. v. Colgate Palmolive Company, 380 U.S. 374, 384-92 (1965); Davinol Products, P.S. Docket No. 7/22 (P.S.D. 1979). While Respondent phrased its exception so that it appears to be disagreeing with the materiality finding, the focus of its argument relates to the absence of harm to purchasers, the falsity of the representations made and restrictions on its freedom of speech.

It is uncontested that the vitamins marketed by Respondent are not harmful and therefore that question is not at issue in this proceeding. Furthermore, in a proceeding under 39 U.S.C. § 3005 it is unnecessary to establish that a product is harmful or that any person has been injured by its use. See The Doctor's Diet Plan, P.S. Docket No. 6/77, (Recon. den. P.S.D. 1979). To sustain a violation of the cited section of the Code, Complainant need only establish that Respondent seeks remittances of money or property through the mails by means of materially false representations. The issue of falsity although generally raised under this exception is specifically raised under other exceptions and will be discussed in connection with those other exceptions. With respect to the freedom of speech or First Amendment argument, it is well established that the Constitution does "not prohibit the State from dealing with deceptive or misleading advertising." Original Cosmetics Products, Inc. v. Strachan, 459 F.Supp 496 (S.D. N.Y. 1979), Aff'd Unpub. Op. (2d Cir. 1979); cert. denied, 444 U.S. 915 (1979). Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

Accordingly, Respondent's Exception 12 is without merit.

EXCEPTION 13

"The Administrative Law Judge erred in Finding of Fact number 15 on page 9 of the initial decision by finding there was general agreement with Dr. Kramer's testimony as to the nature of hair and its growth cycle."

Respondent argues that the presiding Administrative Law Judge erred in finding that there was general agreement with the testimony of Dr. Kramer, Complainant's expert witness, as to the nature of hair and its growth cycle. According to Respondent there is "a tremendous difference and lack of agreement between the parties relative to the growth cycle of hair as it is affected by vitamin and mineral deficiencies."

Respondent appears to misunderstand the breadth of Finding of Fact No. 15. This finding addresses the nature of hair and its growth cycle. The effect of vitamin and mineral deficiencies upon the growth cycle of hair is not addressed in Finding of Fact 15 and is not a subject about which it is stated there is general agreement. The finding that the experts are in general agreement about the nature of hair and its growth cycle is supported by the record. Therefore, Respondent's Exception No. 13 is without merit.

EXCEPTIONS 14 & 15

"The Administrative Law Judge erred in Finding of Fact numbers 18 thru 27 on pages 10 thru 14 of the initial decision by indicating that the foregoing Findings of Fact were true when, in fact, it appears that said Findings of Fact were merely a summarization of the testimony of Dr. Kramer."

"The Administrative Law Judge erred in Findings of Fact numbers 18 thru 27 on pages 10 thru 14 of the initial decision by omitting from the summarization of the testimony of Dr. Reynolds all matters which were unfavorable to the Complainant."

Respondent states that its Exception 14 relates to the indication by the presiding Administrative Law Judge that the facts set forth in Findings of Fact Nos. 18 thru 27 are true when in fact these findings appear to be a summarization of the testimony of Dr. Kramer. Respondent argues that if these findings are meant to hold that the summarized testimony of Dr. Kramer is true, it takes exception to them because significant portions of the testimony which it claims related to the credibility of Dr. Kramer are omitted.

The presiding Administrative Law Judge did, as Respondent alleges, summarize the testimony of Dr. Kramer. While it was neither necessary nor desirable to summarize the testimony as was done in these Findings it was not error to do so as long as proper Findings of Fact are included in the Initial Decision.^*/ Elsewhere in the Initial Decision the Administrative Law Judge addresses each of the paragraphs of the Complaint and cites the specific testimony which he relies upon to determine the falsity of each representation alleged in the Complaint (I.D. pp. 82-83). He also explains why he found Dr. Kramer to be a more credible witness than Respondent's witness, Dr. Lubowe (I.D. pp. 80-82). Thus, the Initial Decision contains proper findings and the reasons therefor. The absence of additional summarization was not error as alleged by Respondent. Accordingly, to the extent this and subsequent exceptions relate to the lack of a complete summarization of testimony, they do not provide a basis for overturning the Initial Decision.

Although Respondent attacks the credentials and credibility of Dr. Kramer, principally because of an alleged lack of expertise in nutritional matters, it cannot be concluded that the Administrative Law Judge erred in finding Dr. Kramer's testimony more credible and persuasive than the testimony of Respondent's witnesses. Dr. Kramer is board certified in both internal medicine and dermatology (Tr. 35-38). While Respondent is correct that Dr. Kramer testified that he did not have any particular expertise in the history of nutrition (Tr. 75), Dr. Kramer's lack of expertise with regard to the history of nutrition does not invalidate his testimony on hair growth and other matters within his expertise. Similarly, while Dr. Kramer has not taken a course in medical school which dealt solely with nutrition, nutrition is considered in the course on physiology and a variety of additional courses in medical school (Tr. 66-69). Furthermore, although Respondent correctly points out that nutrition is only a small part of Dr. Kramer's practice (Tr. 72-73), nonetheless it is a part of his practice and he has had experience with the consideration and treatment of nutritional diseases (Tr. 62, 72). Dr. Kramer has also had considerable opportunity to deal with nutritional problems while interning at Johns Hopkins Hospital and while working for two years at the National Institutes of Health (Tr. 66-67).

Respondent also argues that Dr. Kramer's lack of expertise is further illustrated by the fact that none of the articles he has written relate to hair growth, and that most of the hair problems handled by his office are handled by his partner. While it is true the articles written by Dr. Kramer do not appear to pertain to hair conditions, (CX-12), it is not true that most hair problems are treated by his partner (Tr. 70-71). Moreover, because of the interest of Dr. Kramer's partner in hair transplantation, both he and his partner see more hair problems than are generally seen in a typical dermatologic practice (Tr. 70-71).

The statement of Exception 15 relates to omissions from the summarization of testimony of Dr. Reynolds. The necessity of summarization of testimony has been previously addressed. In addition, Respondent does not specify the portions of the testimony of Dr. Reynolds which it believes were improperly omitted from the Initial Decision. The only mention of Dr. Reynolds' testimony relates to a purported conflict between the testimony of Dr. Kramer and Dr. Reynolds. In this regard, Respondent argues that Dr. Kramer testified that he did not consider hair analysis to be useful for diagnosing hair conditions (Tr. 76), whereas Dr. Reynolds testified he is participating in an expedition which will use hair analysis for scientific research (Tr. 165) and that he is having hair analyses performed for himself and all members of his family. Although at first it appears the two experts may be in disagreement, as the testimony relates to this proceeding, Dr. Reynolds' subsequently testified that hair analysis does not accurately test for minerals used in the growth of hair (Tr. 190-191). Thus, insofar as this proceeding is concerned there is no significant disagreement between Complainant's experts.

Accordingly, for the reasons stated there is no merit to Exceptions 14 and 15.

EXCEPTION 16

"The Administrative Law Judge erred in Finding of Fact number 28 on page 14 of the initial decision as the testimony set forth therein was contradicted by subsequent testimony of Dr. Kramer, which would cause any testimony of the nature set forth in Finding of Fact number 28 to be refuted."

The essence of Respondent's argument with respect to this exception is that on cross-examination Dr. Kramer testified that he had not personally observed or conducted studies with Respondent's product or most of its ingredients, and that his testimony was based on the conclusion that certain things were false because they had not been proven to be true. As the burden of proof is normally upon the Complainant, Respondent argues it has not been sustained.

In United States v. Denver & Rio Grande RR Co., 191 U.S. 84, 92 (1903), the Supreme Court stated:

"When a negative is averred in pleading, plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative; but when the opposite party must, from the nature of the case, himself be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party which is in possession of the proof should be required to adduce it; or upon his failure to do so, we must presume it does not exist, which of itself establishes a negative. (Citations omitted)

This principle was applied to proceedings under 39 U.S.C. § 3005, in Standard Research Laboratories, P.S. Docket No. 7/48 (P.S.D. 1980) which stated:

"It is apparent that it is equally within the ability of the parties to establish the consensus of medical opinion with regard to any particular medical matter. However, when an organization makes representations concerning a product and those representations are not in accordance with the consensus of authority, it is only reasonable to expect that organization to have data which will adequately support such representations. Accordingly, if Respondent takes the position that the medical consensus is incorrect because of new or recent developments which have not been reported in reliable medical literature and received acceptance by a significant body of the medical community, it cannot merely allege or present limited evidence concerning the existence of such developments and, in effect, challenge the Postal Service to prove it isn't so...It is incumbent on Respondent to present persuasive evidence in support of that position. If it does not do so, it may properly be concluded that such evidence does not exist."

Furthermore, it has been held on numerous occasions that medical testimony need not be based on personal testing of the products in issue. See e.g., Original Cosmetics Products, Inc. v. Strachan, Docket No. 78-6165 Unpub. Op. (2d Cir. 1979); Hauser Inc., P.S. Docket No. 7/77 (P.S.D. 1980); Michigan Bulb, P.S. Docket No. 7/43 (P.S.D. 1979).

The testimony of Complainant's experts was found to be in accord with the consensus of informed scientific and medical opinion. The contrary was found with regard to the testimony of the witnesses presented by Respondent and their testimony was not persuasive that the consensus of informed medical and scientific opinion is in error. (I.D., pp. 80-82, FOF 35). Thus, Complainant has sustained its burden of proof. Respondent's Exception No. 16 is therefore without merit.

EXCEPTION 17

"The Administrative Law Judge committed error in Finding of Fact number 29 on pages 23 thru 46 of the initial decision. In that said Finding of Fact does not accurately summarize the testimony of Dr. Kramer but instead emphasizes the testimony of Dr. Kramer which is favorable to Complainant and glosses over that testimony of Dr. Kramer on cross examination which completely refutes all of the testimony favorable to the Complainant by admissions on cross examination."

Respondent refers to the contentions set forth under Exception No. 16 as being applicable to and incorporated by reference into Exception No. 17. Since Exception 16 was found to be without merit, Exception No. 17 is also without merit.

EXCEPTION 18

"The Administrative Law Judge committed error in Finding of Fact number 29 on pages 23 thru 46 of the initial decision in that said Finding of Fact does not accurately summarize the testimony of Dr. Reynolds but instead emphasizes that testimony of Dr. Reynolds which is favorable to the Complainant and glosses over that testimony of Dr. Reynolds on cross examination which completely refutes all the testimony favorable to the Complainant by admissions on cross examination."

A portion of Respondent's argument (Appeal Brief numbered paragraphs 3-10, pp. 28-29) relates to Dr. Reynolds' lack of observation or participation in any experiments which would prove the negative. This contention is rejected for the same reasons set forth under Exception 16. Respondent also argues that Dr. Reynolds was not an expert in nutrition. The record supports the Administrative Law Judge's reliance on the combined testimony of Drs. Kramer and Reynolds. The necessity for summarization of testimony has been addressed previously and will not be given further consideration here.

Respondent's principal argument with respect to this Exception relates to the use and benefit of vitamins and the inconsistencies in this regard which it perceives in Dr. Reynolds' testimony. Respondent seems to view the issue in this proceeding as the usefulness of vitamins, but such is not the case. That vitamins and minerals are necessary for hair growth is not disputed (Tr. 187). However, the issue in this proceeding is whether the ingredients in Respondent's product will have the effect on hair that Respondent represents.

Dr. Reynolds testified that NEW START NATURAL HAIR VITAMINS would not remedy poorly nourished hair, including hair being formed in the follicles, that it would have no effect on a marginally deficient individual, and a person with a gross deficiency would have so many other problems that would have manifested themselves that he would not be taking vitamin supplements to improve his hair (Tr. 126-128). Dr. Reynolds' testimony in this regard is consistent with testimony of Dr. Kramer and is persuasive (Tr. 104-109).

Considering Dr. Reynolds' testimony in light of the issues in dispute and in view of the testimony of Dr. Kramer, it cannot be concluded that the reliance placed on that testimony was incorrect or that admissions on cross-examination refuted the doctors' testimony supporting Respondent's position. Accordingly, there is no merit to this Exception.

EXCEPTION 19

"The Administrative Law Judge erred in Finding of Fact number 31 on pages 46 thru 54 of the initial decision by omitting some of the testimony of Dr. Irwin Lubowe."

Respondent alleges that the Initial Decision improperly omits the portion of Dr. Lubowe's testimony in which he stated that hair loss is considered to be a cosmetic problem by the medical profession, that most work on hair has been done by nutritionists rather than physicians, and that physicians are not well educated in the field of nutrition.

Dr. Lubowe did testify as alleged by Respondent (Tr. 276, 286). However, the statements of Dr. Lubowe and the books and articles he quotes which support his testimony about what nutritionists believe are not persuasive. The publications from which the witness quotes are not recognized professional journals which publish articles based upon scientific research and which are subjected to rigorous peer review (Tr. 148-151). Accordingly, the opinions contained therein were properly accorded less weight than articles which are published in recognized professional journals. Thus, there was no improper omission of a portion of Dr. Lubowe's testimony.

In essence, Respondent is arguing in this exception and others relating to the evaluation of the testimony presented, that it was error for the presiding Administrative Law Judge to give greater weight to the testimony of Complainant's witnesses than he did to the testimony of Respondent's witnesses. A review of the testimony presented as well as the documentary evidence presented establishes that the presiding Administrative Law Judge properly gave greater weight to the testimony of Complainant's witnesses and such testimony establishes by a preponderance of the evidence the falsity of the representations alleged in the Compliant. Accordingly, no error was committed by the presiding Administrative Law Judge. Respondent's position with regard to Exception 19 is without merit.

EXCEPTION 20

"The Administrative Law Judge erred in Finding of Fact number 32 on pages 54 through 65 of the initial decision by omitting some of the testimony of Dr. Richard Lord."

Dr. Lord testified that in this opinion the vitamins in Respondent's product are those necessary to grow normal healthy hair and that a significant percentage of the population is deficient in those vitamins (Tr. 316). Dr. Lord admitted that his testimony is at variance with the National Academy of Science (Tr. 347) and that the National Academy of Science constitutes the best available source of knowledge on questions of nutrition (Tr. 340). Furthermore, Dr. Lord's testimony, as summarized by Respondent on pages 37-39 of its brief, is not supported by persuasive factual data in the record and is not consistent with the consensus of medical opinion on the subjects addressed.

Accordingly, it was not improper to fail to summarize all of the doctor's testimony (see Exceptions 14 & 15 pertaining to the necessity and desirability of summarizing testimony) or to fail to place reliance on his testimony. Respondent's position with respect to Exception 20 is therefore, without merit.

EXCEPTION 21

"The Administrative Law Judge erred in Finding of Fact number 34 on pages 69 thru 80 of the initial decision by misinterpreting the value of the documentary evidence therein so as to reach a favorable conclusion on behalf of the Complainant by deciding that the deficiencies of said reports were in fact favorable to the Complainant when, if anything, the deficiencies demonstrate that there is no evidence to support the burden of proof placed upon the Complainant to prove the Complainant's case."

Respondent argues that the Administrative Law Judge erred when he indicated that Respondent had placed significant reliance on Respondent's Exhibit 2 (I.D. p. 77). According to Respondent the only purpose for introducing its Exhibit 2 was to cross-examine Dr. Reynolds. Respondent's Exhibit 2 is a reproduction of a portion of the March 16, 1979, Federal Register which is a proposed rule of the Food and Drug Administration entitled "Vitamin and Mineral Drug Products for Over-the-Counter Human Use." The Exhibit was admitted into evidence over Complainant's objection at the request of Respondent (Tr. 253-56).

The degree of reliance placed upon the Exhibit by Respondent may not have been heavy or significant as Respondent claims. However, as it applies to the matters at issue here, Respondent's Exhibit 2 is in evidence and, as set forth in detail in Finding of Fact 34, it is not supportive of Respondent's case. Regardless of the reliance placed on the Exhibit by Respondent, it has not shown that the presiding Administrative Law Judge improperly relied on the document as evidence in this proceeding. Accordingly, Respondent's Exception 21 is without merit.

EXCEPTION 22

"The Administrative Law Judge erred in Finding of Fact number 35 on page 80 of the initial decision on his conclusion as to the thrust of Dr. Kramer's testimony and in his conclusion that the aforesaid testimony was uncontradicted by any persuasive, credible evidence, and that it was in accord with the consensus of informed medical and scientific opinion."

Respondent again raises the issue that there are no tests which conclusively prove that Respondent's representations are false, the same basic argument made in connection with Exception 16. For reasons stated in connection with Exception 16, this Exception is found to be without merit.

EXCEPTION 23

"The Administrative Law Judge erred in Finding of Fact number 35 on page 81 of the initial decision by holding that Dr. Reynolds'testimony was in accord with the conclusions in the monograph and the opinions of Dr. Reynolds were in accord with the expert medical opinions of Dr. Kramer in such matters as the need for and deficiency states of certain nutrients and that the opinions of Dr. Reynolds are in accord with the consensus of informed medical thought."

Respondent again attacks the credibility of Dr. Reynolds regarding the lack of necessity of vitamin supplementation because he believes in the use of vitamins for his family and furthermore he has no proof that Respondent's claims are ot true. According to Respondent the primary purpose of Dr. Reynolds' testimony was to discredit vitamin supplementation and such testimony is contrary to his own actions.

As has previously been stated (Exception 18) the issue in this proceeding is not the value of vitamin supplementation. It is whether Respondent's product will perform as represented. In this regard Dr. Reynolds testified it would not and his testimony, along with the remainder of the evidence of record, supports this conclusion. Accordingly, there is no merit to this Exception.

EXCEPTION 24

"The Administrative Law Judge erred in Finding of Fact number 35 on page 81-82 of the initial decision by reaching a conclusion on Dr. Lord's testimony which completely misrepresented the essence of this testimony."

Respondent's arguments under this Exception primarily relate to Dr. Lord's work in analyzing hair. As stated in connection with Exception 20, Dr. Lord's testimony is not supported by specific reference to recognized medical literature, nor are the bases of his opinions supported or explained in detail. Further, the efficacy of hair analysis is not at issue. Moreover, the present usefulness of hair analysis for testing for minerals used in hair growth has not been established (Tr. 190-91). Accordingly, for the reasons stated in connection with Exception 20 it is concluded that Exception 24 is without merit.

EXCEPTION 25

"The Administrative Law Judge erred in Finding of Fact number 35 on pages 80-82 of the initial decision by, in essence, using this Finding of Fact as a summarization of the oral testimony which the Administrative Law Judge intended to concur with and that the Administrative Law Judge has selectively tried to pick out those parts of the oral testimony which were favorable to the Complainant, while ignoring testimony by the same witnesses which contradict that testimony which is favorable to the Complainant."

Respondent again argues, as it has in connection with several previous exceptions, that there are omissions from the summarized testimony of various witnesses and these omissions are evidence of an alleged bias on the part of the presiding Administrative Law Judge. The alleged bias, it is argued, is manifested in Finding of Fact No. 35 by the Judge's selectivity of portions of the oral testimony on which he relied.

Respondent acknowledges that the summarized testimony may be that portion of the evidence with which the presiding Administrative Law Judge concurs. However, in essence, what Respondent is again arguing is that the Administrative Law Judge should have relied on testimony favoring Respondent's position, not Complainant's.

To weigh the evidence and decide in favor of one party over the other on the basis of the evidence of record is not bias. Rather it is the function of any judicial or quasi-judicial process including the adjudication of administrative law cases.

Finding of Fact 35 articulates the portions of the oral testimony on which the Administrative Law Judge relied. A review of the record does not establish that the Administrative Law Judge erred in his determination of the weight to be given to the testimony of the various witnesses and his finding in favor of Complainant does not show a bias against Respondent. Thus, Respondent's post Initial Decision allegation of bias is not supported by the record. Accordingly, there is no merit to this Exception.

EXCEPTION 26

"The Administrative Law Judge erred in Finding of Fact number 36 on pages 82 thru 85 of the initial decision by indicating that all of the representations allegedly made by the Respondent are false and selecting as evidence of that statements which are directly contradicted by evidence on cross examination."

Respondent again raises arguments previously addressed and rejected under Exception 16. Respondent also argues that when conflicting testimony is given by a witness, that testimony which is least favorable to the party for whom the witness is testifying is to be construed as the testimony of that witness. In a previous part of its brief entitled "Preliminary Matters," Respondent made this same argument and in support thereof cited Cowan Supply Company v. Gant, 149 Ga App. 616, 255 S.E. 2d 89 (1979). According to Respondent this case states:

"The general rule of law in the State of Georgia, as well as everywhere else, is that the testimony of witnesses on behalf of a party is to be construed more strongly against that party when the testimony is self-contradictory, vague or equivocable (sic)." Cowan Supply Company v. Gant, 149 Ga App. 616, 255 S.E. 2d 89 (1979). (Resp. App. Brief p. 4)

Respondent has misstated the rule stated in the cited case. The Court in Cowan stated:

"It is true that the testimony of a party who offers himself as witness in his own behalf is to be construed more strongly against him when it is self-contradictory, vague or equivocal." Cowan Supply Company (supra.) (Emphasis added)

Thus, the cited case relates only to the situation where portions of the testimony of a party are in conflict. That case does not stand for the proposition advanced by Respondent. Since Respondent alleges that Drs. Kramer and Reynolds are the witnesses giving inconsistent or contradictory testimony and since they are not parties to the proceeding, their testimony is not controlled by Cowan. Moreover, as the Administrative Law Judge found in the Initial Decision, the testimony of the two doctors persuasively establishes the falsity of the representations alleged in the Compliant. This conclusion is supported by the record. Accordingly, this Exception is without merit.

EXCEPTION 27

"The Administrative Law Judge erred in Conclusions of Law number 2 on page 85 of the initial decision by reaching the conclusion stated therein."

Respondent again asserts that Complainant has not sustained its burden of proof because its witnesses were unable to testify that they had proof of the falsity of Respondent's representations. This same argument was addressed in Exception 16 and found to be without merit. For the reasons stated in connection with that exception, Respondent's argument here is found to be without merit.

EXCEPTION 28

"The Administrative Law Judge erred in Conclusions of Law number 3 on page 85 of the initial decision by stating the conclusion of law stated therein."

Conclusion of Law No. 3 states that "the views and opinions of Complainant's witnesses were in conformity with the consensus of informed medical and scientific opinion, whereas no claim for such standing was even made for the testimony of Respondent's witnesses." (I.D. pp. 85-86) Respondent takes exception to this conclusion "to the extent that the Administrative Law Judge finds that any evidence was presented which sustained the Complainant's burden of proof." In the opinion of Respondent the "evidence given by the Complainant sustained the Respondent's position," and to that extent is in accord with the consensus of informed scientific opinion.

The testimony of Complainant's witnesses was admissible and persuasive evidence which was properly concluded to be in accordance with the consensus of informed medical and scientific opinion (I.D. pp. 17, 80-82). As stated in the Initial Decision and as is supported by the record, no claim was made that the testimony of Respondent's witnesses was in accordance with the consensus of informed medical and scientific opinion. Therefore, Conclusion of Law 3 of the Initial Decision is supported by the record. Accordingly, this Exception is without merit.

EXCEPTION 29

"The Administrative Law Judge erred in Conclusions of Law number 4 on page 86 of the initial decision by stating the conclusion of law stated therein."

Conclusion of Law No. 4 state "The Respondent did not go forward with competent, credible proof that overcame that of Complainant." Respondent argues that Complainant did not present proof which required rebuttal by Respondent and that Respondent went forward with credible proof to sustain its position. Notwithstanding Respondent's argument to the contrary, Complainant did present proof to sustain the allegations of the Complaint and such proof was properly found to constitute a preponderance of the evidence. Therefore, Respondent's arguments under Exception 29 are not supported by the record and are without merit.

EXCEPTION 30

"The Administrative Law Judge erred in Conclusions of Law number 6 on page 86 of the initial decision by stating the conclusion of law stated therein."

The Administrative Law Judge concluded in Conclusion of Law 6 that persons of ordinary mind reading Respondent's advertisements would interpret them substantially as characterized in the Compliant. Respondent admitted in its Answer that it makes the representations alleged in paragraphs 3(a) and 3(b) of the Compliant. With regard to the remaining paragraphs of the Complaint, the presiding Administrative Law Judge and the Judicial Officer are qualified to determine the effect of various representations on the minds of ordinary men and whether such representations are material. Vibra Brush v. Schaffer, 152, F.Supp. 461, 468 (S.D. N.Y. 1957); Baslee Products Corp. v. United States Postal Service, 356 F.Supp. 841, 847-848 (D. N.J. 1973). Standard Research Labs, P.S. Docket No. 7/78 (P.S.D. 1980). A review of the record supports the determination of the presiding Administrative Law Judge that the representations alleged in the Complaint are made. (See discussion under Exceptions 4-11). Accordingly, there is no merit to Exception 30.

EXCEPTION 31

"The Administrative Law Judge erred in Conclusion of Law number 7 on page 86 of the initial decision by stating the conclusion of law stated therein."

Conclusion of Law No. 7 states that the representations made by Respondent are material because they are of the kind and character which would persuade readers to order and pay for Respondent's product. Respondent contends that the same arguments raised under Exception 30 pertain to this Exception. For the reasons stated in connection with Exception 30, and Exception 12, there is no merit to this Exception.

EXCEPTION 32

"The Administrative Law Judge erred in Conclusions of Law number 8 on page 86 of the initial decision by stating the conclusion of law stated therein."

Conclusion of Law No. 8 states that Complainant has established the falsity of Respondent's representations by a preponderance of competent credible evidence. Respondent argues that Complainant has not established the falsity of the alleged representations. The argument is not supported by persuasive logic and is repetitive of the other exceptions previously addressed herein and found to be without merit. This Exception is accordingly also found to be without merit.

EXCEPTION 33

"The Administrative Law Judge erred in Conclusions of Law number 11 on page 86 of the initial decision by stating the conclusion of law stated therein."

Conclusion of Law No. 11 finds that Respondent is conducting a scheme for obtaining money or property through the mails by means of materially false representations within the meaning of 39 U.S.C. § 3005. Respondent alleges that it is not conducting a scheme but is simply advertising its products. Advertising which involves misrepresentations even though innocent, falls within the scope of the "scheme or device" language of 39 U.S.C. § 3005. Kurzon v. United States Postal Service, supra; United States v. International Termpapers, Inc., 477 F.2d 1277, 1280 (1st. Cir. 1973); Standard Research Labs., supra.

Respondent also argues that it is not attempting to obtain money by false pretenses. Whatever it is intending to do, it is in violation of 39 U.S.C. § 3005, because it has been found that it obtains money through the mail by means of false representations. U.S. Health Club, Inc., v. Major, 292 F.2d 665 (3rd. Cir. 1961).

Respondent's final contention is that purchasers are protected by a money back guarantee. However, a money back guarantee does not ameliorate the effect of a false representation or excuse a violation of 39 U.S.C. § 3005. Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir. 1930); Borg-Johnson Electronics v. Christenberry, 169 F.Supp. 746 (S.D. N.Y. 1957).

For the foregoing reasons, Exception 33 has no merit.

EXCEPTION 34

"The Administrative Law Judge erred by entering an order dated March 24, 1980, amending Complainant's Compliant."

The order in question added two additional addresses from advertisements in Soma magazine (CX 2, 3) which would be subject to a mail stop order if issued. There was no change in the issues presented and no prejudice to Respondent has been shown. The action taken by the Administrative Law Judge was in accord with § 952.12(c)(d) of the Rules of Practice. Accordingly, Respondent's Exception 35 is without merit.

EXCEPTION 35

"The Administrative Law Judge erred by admitting into evidence Exhibits CX2 and CX3."

Exhibits CX-2 and CX-3 are copies of the magazine Soma for September and October of 1979 and November and December, 1979, respectively. Contained in these magazines are the advertisements for NEW START NATURAL HAIR VITAMINS mentioned under Exception 34. Respondent argues that admission of the advertisements was tantamount to instituting a new proceeding. The only distinction between the advertisements admitted as CX-2 and CX-3 and the advertisement which was attached to the Complaint is that CX-3 states that chromium and selenium are now included in the product (Tr. 40).

Respondent has not shown that it was not prepared to address the differences of ingredients of the products advertised in CX-2 and CX-3. In fact, Respondent presented testimony from two of its witnesses on selenium (Tr. 291-292, 324) and Dr. Lubowe testified about chromium (Tr. 291-292). This testimony indicated that there is insufficient data to determine the effect of these substances on hair growth.

Accordingly, there was no prejudice to Respondent in the admission of these exhibits. Therefore, Respondent's contentions in connection with Exception 35 are without merit.

CONCLUSION

After consideration of the entire record and Respondent's Exceptions to the Initial Decision, it is concluded that Respondent is engaged in a scheme for obtaining money through the mail by means of materially false representations. Accordingly, Respondent's appeal is denied and a remedial order under 39 U.S.C. § 3005 is being issued contemporaneously with this Decision.

*/ In Stauffer Laboratories, Inc. v. F.T.C., 343 F.2d 75 (9th Cir. 1965) the Court discussed the type of findings necessary to support an administrative decision. Quoting Judge Learned Heand the Court stated at P. 81:

"Findings should not be discursive; they should not state the evidence or any of the reasoning upon the evidence; they should be categorical and confined to those propositions of fact which fit upon the relevant propositions of law."

The Court went on to state:

"'But the judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no necessity for over elaboration of detail or particularization of facts.' We think that findings which would satisfy the requirements of Rule 52 would satisfy the requirements of § 8(b) of the Administrative Procedure Act." (Id. at p. 82).