In the Matter of the Complaint Against

GIFT HOUSE PRODUCTS,
4500 N.W. 135th Street at
Miami, Florida 33054

P.S. Docket No. 2/119

Daniel S. Greenberg, Esq.,
Law Department, United States Postal Service,
Washington, D. C., for Complainant

No appearance on behalf of Respondent

Before: William A Duvall, Chief Administrative Law Judge

INITIAL DECISION

^1/ This proceeding was initiated on July 26, 1973, when the complaint was filed on behalf of the General Counsel, Law Department, U.S. Postal Service, the Complainant. The complaint charged the Respondent with violating Section 3005, Title 39 U.S. Code in connection with the sale through the mail of a certain product called Super-E Penetrating Cream.

The specific representations which the Complainant charges the Respondent with making falsely through the mails are the following:

(a) That use as directed of "Super - E Penetrating Cream" (hereinafter referred to as the "cream") will eliminate or significantly reduce scars from burns and other wounds;

(b) That use of the cream will eliminate or signifi- cantly reduce lines, wrinkles, blemishes, and blackheads from every area of the face and neck;

(c) That use of the cream will eliminate or signifi- cantly reduce coarse, dry, and aging skin from face and neck;

(d) That, irrespective of the physiological action of its specific ingredients, the ultimate effects of the cream are materially different in concept from the ultimate effects of any other cream offered for elimination or reduction of lines, wrinkles, and dry skin;

Attached hereto as Appendix A to this decision is a copy of Complainant's Exhibit C-1, which is the advertising material employed by the Respondent. This advertising material strongly suggests to the reader that it contains a significant amount of Vitamin E and that this ingredient will be effective in removing lines and wrinkles, blemishes and blackheads from one's skin, and in removing the conditions of coarse of old-looking skin. In addition, the advertising literature used by the Respondent indicates it will be efficacious in treating and reducing the scar tissue which is formed as a result of wounds and burns.

The overall effect created on the reader by this advertising material, viewed as a whole and considered in the light that it most probably would produce upon the average reader, is that it does create the belief that the use of the cream will accomplish the results which are set forth in the charges contained in the complaint.

I find, therefore, that the Respondent does make the representa- tions which are set forth in the complaint.

Testimony in regard to the efficacy of this product was given by Dr. Vincent F. Cordaro, a medical doctor. Dr. Cordaro testified that contrary to the Respondent's claims, research has established that Vitamin E has no special virtue or efficacy in and of itself, or when added to other emollient creams, as an agent to reduce lines, wrinkles, blemishes, or blackheads.

The use of the cream sold by Respondent on scar tissue might have the effect of softening the tissue temporarily, but it would produce no lasting effect, and it clearly would not serve to cause the scar tissue to disappear.

As regards the effect of Respondent's cream on lines and wrinkles, the only medical testimony of record in this proceeding is that the Super-E Penetrating Cream might have the effect of "plumping out" fine lines. This effect, too, would be transitory in nature, and would not be lasting. Respondent's cream would have no beneficial effect in regard to deep wrinkles.

Insofar as dry, coarse, or aging skin is concerned, it is also the testimony of the Doctor that Respondent's Super-E Penetrating Cream might reduce the dryness the same as any other moisturizing cream would do. On the other had, there would be no permanent benefit persons with coarse, dry, or aging skin would receive from the use of Respondent's cream.

From the foregoing findings of fact, and the testimony of the medical witness, I conclude that as a matter of law, the Respondent is engaged in conducting a scheme or device for obtaining money or Property through the mails by means of false representations contrary to the provisions of Section 3005 of Title 39, U.S. Code.

In view of this conclusion, a mail-stop order as provided in the governing statute should be issued against this Respondent.

Now, the Respondent's attorney wrote in and commented with regard to a consent agreement that had been sent to him by the Complainant, stating that it is somewhat extraordinarily broad in scope, and goes so far beyond the complaint in this proceeding that the attorney did not feel that Respondent should execute the agreement.

The attorney is under the impression that no matter what product might be invented in the future which could produce any of the results referred to in the promotional material, Gift House Products would be barred from ever offering this product for sale through the mails while making these representations.

As I read the proposed consent agreement, particularly on Page 2, Paragraph 4(D), if evidence is received in the future by the Complainant that the Respondent is violating the provisions of the agreement, then the Complainant may file with the Judicial Officer a petition directing the withholding of delivery of mail addressed to the Respondent.

However, before a new order would be issued against the Respondent, the Judicial Officer must allow the Respondent an opportunity to be heard on the question of the propriety of the issuance of the second order.

This hearing would be a hearing of very broad scope in which the Respondent would have every opportunity to establish that a new product was being offered for sale, that later research had established the efficacy of the product for the purposes for which it was being sold, or for any other reason why a second order against the Respondent should not be issued by the Judicial Officer.

In view of the safeguards in the consent agreement described above, it would appear that it might be worthwhile for Counsel to give further consideration to the question of whether to submit a consent agreement executed by his client in regard to this product which is under examination in this proceeding.

In view of this situation, the issuance of an order as provided earlier in this decision should be withheld until ten days after the date on which a copy of this decision is received by Counsel for the Respondent.

If within such period Counsel for the Respondent believes that it is appropriate for his client to do so, he may wish to have the client execute the consent agreement of the type previously submitted to the Respondent by Complainant.

If at the end of ten days following receipt of this decision by Respondent's attorney, no such consent agreement is received in the Office of the Docket Clerk, the order against the Respondent previously described herein should be issued in due course.

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1/ Transcribed from oral decision as rendered at close of hearing held September 17, 1973. Minor language changes have been made, but the substance of the decision is unchanged.