In the Matter of                                                       )
                                                                               )
THE RITA NORLING INCENSE COMPANY               )
and                                                                         )
P. O. Box 3707                                                       )
                                                                               )
at                                                                            )
                                                                               )
Beverly Hills, California 90212                               ) P.O.D. Docket No. 2/297
Klassen, E.T.

POST OFFICE DEPARTMENT
WASHINGTON, D.C. 20260

D E C I S I O N

In September 1968, a hearing was held in Los Angeles, California, involving Bell-Book and Candle Incense Company, the principal owner of which was Mrs. Rita Norling. In the conduct of this business, Mrs. Norling offered for sale a book entitled the "Book of Black and White Magic" (hereinafter sometimes called the "book"). Mrs. Norling advertised this book by means of an advertisement, a copy of which is attached hereto as Exhibit A, which advertisement Mrs. Norling had inserted in Fate Magazine, among other periodicals.

It will be noted that in Exhibit A, Mrs. Norling said that the "Book of Black and White Magic" contained information on the following, among other, subjects:

"***How to influence people - How to obtain prosperity - How to get a Lucky Hand - Gambling Hand - How to win a law suite - A lady who cannot get friends - The person whose business is in bad shape - and more. It gives you step-by-step instructions which you can easily and safely follow to achieve the desired results.***"

Mrs. Norling appeared at the September 1968, hearing, but she was not represented there by counsel, although an attorney had prepared all pre-trial pleadings for her. The enterprise was explored thoroughly at the hearing and a complete record was made. Mrs. Norling cross-examined the investigating Postal Inspector and she made statements and presented another witness in her own behalf. At the conclusion of the hearing, the Hearing Examiner delivered an oral Initial Decision in which he found, among other things, that, in the sale of the "Book of Black and White Magic" on the basis of the representations set forth in Exhibit A, and in the methods of sale of various oils and incenses, the Respondent was engaged in the conduct of a fraudulent enterprise in contravention of the provisions of 39 U. S. Code 4005 as it existed at that time.

On behalf of Mrs. Norling, present counsel appealed that Initial Decision to the Judicial Officer. Insofar as it is here pertinent, the Judicial Officer, on February 20, 1969, sustained the Initial Decision and issued the order authorized by the governing statute (Order No. 69-16).

The General Counsel for the Post Office Department (Complainant) instituted the present proceeding on August 20, 1969, by filing a Petition for Issuance of Supplemental Order. In this Petition, the Complainant alleges that there is reason to believe that the Respondent is attempting to evade the terms of Order No. 69-16. In support of this allegation, Complainant submitted a copy of an advertisement used by the Respondent, the most recent of which was taken from the June 1969 issue of Fate Magazine. A copy of this advertisement is attached hereto as Exhibit A.

Perusal of Exhibit B discloses that the "Book of Black and White Magic" is said to contain:

"***Instant knowledge in performing rituals. Here are just some of the contents:

. How to obtain prosperity

. How to influence others

. How to make a Luck Hand

. What to do to win a lawsuit

. What to do when your business is bad

. A lady who lacks men friends

. Complete course in card reading

. How to get uncrossed

And much, much more] This book also gives personal horoscope, personal lucky numbers, lucky days, lucky colors, special rituals.***"

Note is taken of the similarity of the language used in both Exhibit A and Exhibit B. For this Respondent, this language similarity must seem appropriate since the text of a copy of the book purchased from the Respondent in March 1969 and submitted with Complainant's present Petition is identical with the text of the book under consideration in the 1968 case.

Received from the Respondent with the "Book of Black and White Magic" were five pages of lists and descriptions concerning various oils and incenses. In the "Book of Black and White Magic," certain instructions are given to persons who want to "influence people," "attract attention," "be uncrossed," and the like. These instructions include the use of one or more of the oils appearing on the lists received in the shipment with the book. Thus, the book advertised and sold by the Respondent serves as a medium through which sales of the various oils mentioned in the book are solicited. Persons may then order the oils from the Respondent on the order blank form which, also, accompanies the book.

Respondent filed Answer to the Petition and requested a hearing, setting forth three points which will be discussed in the order in which they are presented.

Respondent's first allegation is --

"1. The graveman sic of the original Complaint (Charges A and B) was that the respondents advertised products possessing supernatural or mystic power. Following the prior proceedings, RITA NORLING specifically set forth in her advertisements concerning her products that she makes 'no claim of any supernatural effect or powers for any of the items listed in any of her brochures, pamphlets or catelogs. sic All items mentioned in our brochures, pamphlets or catelogs sic are sold as curios only by their given name and are offered for sale solely for whatever they may be worth to the purchaser. Any books offered...are based on authors' claims and we only give the straightforward analysis of the contents'".

In order fully to appreciate the nature of Respondent's business, it must be recalled that the initial contact with prospective customers is through Fate Magazine, a medium which the Respondent testified in the earlier proceeding she employed because that publication reaches "People that like to read occult books. They read Fate Magazine because this is where they will know to find books of this nature." Mrs. Norling said that Government Counsel was correct when he said that the readership of Fate Magazine "is an audience mostly receptive of this type of a product." (Tr. 38, former proceeding)

Having in this manner appealed to the most susceptible and gullible audience, the Respondent insists that the mild disclaimers appearing at the foot of each page of lists of the various oils absolve the Respondent of any taint of misrepresentation. It is interesting to note that the circular containing the alleged disclaimer in regard to "Any books offered by" Respondent is identical with a circular used by the Respondent in the 1968 case. In fact, the Respondent neglected to strike the name "Bell, Book & Candle Incense Company" from the penultimate line on the present circular, which was enclosed with the book purchased in March 1969. Thus this circular with its so-called disclaimer has been considered once and found to be no bar to the issuance of a fraud order.

Similar disclaimers were considered and held to be unavailing in the case of Cates v. Haderlein, 189 F.2d 369, 372; rev. on other grounds 342 U.S. 804.

Respondent's second point in its Request for Hearing and Answer is --

"2. The graveman sic of the original Complaint with regard to the book entitled 'Book of Black and White Magic' was that it was advertised as enabling the purchaser to employ supernatural or mystic powers in the conduct of his daily life, or to enable the purchaser 'to receive such diverse and tangible benefits and desires as success in romance, gambling, legal disputes and business affairs....' Since the original proceedings, the advertisements make no such claim. As heretofore noted, RITA NORLING stated in her subsequent advertisement that books offered 'are based on authors' claims and we only give the straightforward analysis of the contents'. Moreover, the advertisement for the book in question set forth in the Petition for Issuance of Supplemental Order does no more than set forth some of the contents of the book. The Petition for Issuance of Supplemental Order proceeds on the erroneous assumption that the original order prohibited the sale or advertisement of the book entitled 'Book of Black and White Magic'. Plainly, this was not the order originally made, nor could such an order be made consistent with free speech and press provisions of the First Amendment to the United States Constitution."

In the light of the similarity of the language used in Respondent's earlier and later advertisements (see Exhibits A and B hereto), it is difficult to perceive the thrust of the first two sentences of this argument. In any event, the second sentence is contrary to fact. In regard to the statement in the third sentence of the above quotation, by the time the purchaser sees this purported disclaimer, he has already purchased the book because of the appeal of the advertisement. Therefore, to make the disclaimer at this stage of the transaction is, at least as to the "Book of Black and White Magic," to attempt (unsuccessfully) to lock the barn door after the horse has been stolen.

The current advertisements for the book indicate that it contains information on "How to" do a variety of wondrous things. This advertisement clearly does more than "set forth some of the contents of the book."

The remainder of Respondent's second point is not persuasive and it is immaterial. Regardless of the assumption on which Complainant proceeded in filing the present Petition, and Complainant denies Respondent's version of Complainant's theory, this Department has no authority or desire to prohibit the sale of the "Book of Black and White Magic." This Department does, however, have the authority, the duty and the desire to prohibit by legally appropriate means the sale of anything, including the said book, through the mails upon the basis of false representations.

Respondent's last argument in support of its Request for Hearing and Answer reads as follows:

"3. The original order did not, and could not, prohibit RITA NORLING from selling lawful books and lawful products. The force of the order was directed solely at the advertisements for the book and products, and these, as previously noted, have been altered to meet the specific objections of the Post Office Department."

The first sentence of the above argument is factual and undisputed, so long as the sales methods, also, are lawful. Insofar as the second sentence quoted above is concerned, a few words of the advertisements have been changed, as indicated by a comparison of Exhibits A and B hereto. Some language remains unchanged, as demonstrated by the use in March 1969 of the circular which was part of the material under consideration in the 1968 case. The import and the impact of Mrs. Norling's sales literature is substantially the same now as it was prior to the 1968 proceeding.

FINDINGS OF FACT

1. The Respondent, The Rita Norling Incense Company, P. O. Box 3707, Beverly Hills, California, is engaged in obtaining monies through the mails in the sale of a book entitled "Book of Black and White Magic."

2. Respondent advertises the "Book of Black and White Magic" in Fate Magazine knowing that persons interested in occult books and this type of product comprise the readership of Fate Magazine.

3. In the "Book of Black and White Magic" certain rituals are described which call for the use of certain oils.

4. With copies of the "Book of Black and White Magic" which Respondent mails to purchasers, Respondent encloses circulars containing lists and descriptions of many, if not most, of the oils mentioned in the "Book of Black and White Magic."

5. Also enclosed with the "Book of Black and White Magic" sent to purchasers is an order blank by which persons may order from Respondent, at stated prices, the products described in the circular matter enclosed with the book.

6. In the conduct of this enterprise, the Respondent makes false representations concerning the "Book of Black and White Magic" and concerning the products described in the circulars sent to purchasers of the said book. ("The purpose of the statute is to protect the unwary and the unsuspecting as well as the knowledgeable and worldly-wise -- those who are 'trusting as well as the suspicious'." Gottlieb v. Schaffer, 141 F. Supp. 7, 16, citing Federal Trade Commission v. Standard Education Society, 302 U.S. 112. "Where claims are completely opposed to common knowledge their falsity may be inferred from their preposterous character. Triers of fact, whether courts, juries or administrators, do not require proof of the improbable and they may apply common knowledge and experience with respect to matters." Gottlieb v. Schaffer, supra.

7. The Bell-Book and Candle Incense Company was the subject of a proceeding initiated before the Post Office Department in 1968 wherein it was found that the said concern was engaged in a fraudulent scheme within the meaning of 39 U. S. Code 4005.

8. The Respondent herein is the same type of enterprise as that which was the subject of Order No. 69-16, dated February 20, 1969.

9. The language of the advertisements used by the Bell-Book and Candle Incense Company has been changed slightly to promote the sale of Respondent's products.

10. The language changes adopted by Respondent for the current advertising materials are so slight as to be negligible and do not significantly vary the message of the present advertising materials from the message of those advertisements used when the enterprise was known as Bell-Book and Candle Incense Company.

11. Some of the same advertising material used by Mrs. Norling when the business was conducted under the name Bell-Book and Candle Incense Company is used, with slight penned interlineations, in the present operation conducted under the name The Rita Norling Incense Company.

12. Respondent's Request for Hearing and Answer presents no material issue of fact.

13. There is no factual question or issue herein which requires or warrants the holding of a hearing.

CONCLUSIONS OF LAW

1. Respondent's Request for Hearing and Answer presents no material issue of law.

2. There is no legal question or issue herein which requires or warrants the holding of a hearing.

3. The legal significance of the advertising language used by The Rita Norling Incense Company is the same as that which was used by the Bell-Book and Candle Incense Company, against which Order No. 69-16 was issued on February 20, 1969.

4. In the conduct of the enterprise which is the subject of the Petition herein, Respondent is engaged in conducting a scheme or device for obtaining money through the mail by means of false representations in contravention of the provisions of 39 U. S. Code 4005. (Cates v. Haderlein, supra; Gottlieb v. Schaffer, supra.)

ORDERS

1. Respondent's request for a hearing is denied.

2. An order of the type prescribed by 39 U. S. Code 4005 will issue forthwith.