In the Matter of the Complaint Against

SPECTRON IND.,
P. O. Box 17200 at
San Diego, California 92117

P.S. Docket No. 2/8

David J. Knight Administrative Law Judge

James J. Robertson, Esq.,
Consumer Protection Office, Law Department,
U.S. Postal Service, Washington, D. C.,
for the Complainant.

Melvyn B. Stein, Esq.,
Ellman and Stein, 110 West "C" Street,
San Diego, California,
for the Respondent .

INITIAL DECISION OF DAVID J. KNIGHT,
ADMINISTRATIVE LAW JUDGE

The Consumer Protection Office of the U. S. Postal Service (Complainant) seeks^1/ an order under 39 U.S.C. 3005 which would require the postmaster at San Diego, California, to return to the senders all mail addressed to Spectron Ind., (Respondent) in response to a certain advertisement, the returned mail marked as being in violation of the cited statute and would also forbid him from paying any money order drawn to Respondent's order.

The Complainant alleges that the Respondent receives money through the mails by falsely representing with advertisements in publications nationally circulated what its product, Spectron C-33, can accomplish for the purchaser. Generally, the product is supposed to cure baldness and other maladies of the scalp and the Complainant contends that it will not. If these allegations, by satisfactory evidence, are proved, the order sought may issue.

The Respondent in substance denies ^2/ the material allegations of the complaint. In what appears to be an affirmative defense, it contends that, while money is obtained by mail, a money-back guarantee is included in the advertisement. It denies that its ad makes the representations alleged in the complaint (more fully treated below) or that these are materially false. It seeks dismissal of the complaint.

The matter was set to be heard in Washington, D. C., on January 17, 1973, but Respondent's motion, filed with its answer, to change the place of hearing was granted. The hearing was convened on January 19, 1973, at Los Angeles, California. In neither the answer nor motion to change the hearing site did Respondent complain that it was accorded insufficient time to prepare for hearing. An allusion to this proposition was made at the hearing (Tr. 5) but then apparently forgotten. Respondent's post-hearing requests do not claim any procedural deformity of this nature.

Both parties were represented by counsel; presented, examined and cross-examined their own and each other's witness; and filed proposed findings of fact and conclusions of law. The filings were completed by February 23, 1973, and the matter became ripe for decision.

The Issues

It must be determined whether the ordinary reader ^3/ would interpret Respondent's advertisement as paraphrased in the complaint; if so, whether these are false; and whether the Respondent obtains money through the mails. An affirmative answer on all three questions, not in the sequence stated, is necessary to support the order sought.

The Evidence and Findings of Fact

To show that Respondent uses the mails, Complainant offered the testimony of Postal Inspector Gerald E. Raftery. Through him, Respondent's advertisement which appeared in Male magazin e in the January 1973 edition was brought into evidence (Exhibit C-1). With a pseudonym and using the coupon attached to the ad, the Inspector mailed away for the advertised product enclosing a postal money order in the amount of $9.95 (copies of these are in Exhibit C-2). About 10 days later, he received by mail a box from Respondent containing the product known as Spectron C-33 (Exhibits C-3 and C-4).

Respondent objected to the introduction of a photocopy of the postal money order since the original would be in the possession of Complainant, if cashed, and this is best evidence on the issue of obtaining money through the mail. The objection was overruled and that disposition is affirmed. I assumed that Respondent cashed the money order in due course since it sent out the product in response to receipt of the money order. The coupon itself requests either a check or a money order as payment. Once in the mail in this case, the product was paid for, cf., Kerr v. U.S. , 108 F.2d 585, and I hold that this evidence is sufficient to support the inference that Respondent's usual course of business is to solicit and receive money through the mail as the consideration for its product. Lastly, the Respondent's own witness, a user of Spectron C-33, testified that he paid for, received, and reordered the product through the mail (Exhibit R-4). I find that Respondent obtains money through the mail within the meaning of the statute. The offer of a money-back guarantee does not preclude this finding. That guarantee is assurance to the reader that the product will do all that is claimed for it, Sauna Belt, Inc. , P.O.D. Docket No. 3/43, October 4, 1972.

The complaint alleges seven specific false representations allegedly appearing in Respondent's advertisement. Directly or indirectly, the Complainant contends that Spectron C-33 is held out to the public to:

(1) cure male pattern baldness;

(2) regenerate tissue crucial to hair growth;

(3) grow new hair after only three months' use;

(4) stop hair loss after three months' use;

(5) grow new hair on bald spots;

(6) promote thicker hair; and

(7) prevent dandruff and itching scalp.

The ad itself, Appendix A hereto, measures only 2 1/4" x 4" and, except for the headline, appears in very small print, smaller than the usual newspaper type and crowds 26 lines in just less than two inches of space. The headline proclaims:

                                                           STOP
                                                 WORRYING ABOUT
                                                      BALDNESS
                                                           WITH
                                                    SPECTRON C-33

The body of the ad tells the reader of a report from a Japanese University about a revolutionary cure for baldness. A medical research group there used an amino acid to regenerate a substance in human tissue known as adenosine phosphate that proved crucial to hair growth . After only three months, 13 out of 14 patients reported new hair growth and a complete stoppage of loss of hair with the use of amino acid. That's right after only three months . Eight out of 10 grew new hair on bald spots using amino acid . (Underscoring above are those words and phrases as they appear in heavy, capital letters in the ad).

After that recitation the reader is told that now available is a secret formula with 33 ingredients and not one but 16 amino acids and vitamin E. Just a dab massaged in the scalp for 30 seconds is all there is to it, says the ad. It's unconditionally guaranteed for new hair growth and thicker hair and will correct dandruff or itching scalp . If the user is not completely satisfied after three months' use, a refund will be made upon the return of the unused portion or empty jar. The ad concludes with, "You have nothing to lose, and hair to gain. Act now ] Order Now ]" The coupon, an integral part of the ad, calls for $9.95 for the three months' supply.

Based on this ad and the manner in which certain parts of it are emphasized, I find that those representations are made as alleged in the complaint. The Respondent in its ad guarantees a cure for baldness, hair growth even in bald spots, regeneration of tissue to grow hair, thicker hair by growing more, and an end to dandruff and itching scalp. All of this, regardless of the cause of baldness even male pattern baldness which -- according to the medical testimony -- occurs in most men as a normal process of aging, will be brought about with Spectron C-33 and a person may stop worrying about baldness, cf., Vibra Brush Corp. v. Schaffer , 152 F. Supp. 461 at 467.

These representations must be tested against the evidence to determine whether they are false as the Complainant contends.

The Complainant's first medical witness testified that there is no drug known to medical science which would grow new hair, affect the rate of growth of existing hair, or prevent hair loss. This is especially true of male pattern baldness. But if loss occurs as a result of some underlying disease, treatment of that could lead to a restoration of hair growth. Based on the advertised contents of Spectron C-33, hair growth and prevention of hair loss would not result from its use. Massaging the scalp could assist in hair growth.

This doctor is a general practitioner with a specialty in anesthesiology who is employed by the Federal Food and Drug Administration as a medical officer consulting on the efficacy of products and devices sold to the public.

The Complainant's second medical witness was a dermatologist, board certified as such, who teaches patients on a daily basis. His qualifications--education, practice, teachings and writings-- prove him to be well-learned and versed in this field. He described dermatology as the study of the skin and its adnexal structures (appendages) excluding the teeth. The adnexal structures would include the hair, sweat and oil glands, nails, etc. Within this field, the doctor has a special interest in problems involving the hair.^4/ Very few doctors practice within this specialty, according to the testimony.

The doctor described the process of hair existence, growth and loss and the absence within medical science of precise knowledge of why and how any of these occur. The etiology is still in an embryonic state despite the fact that the loss of hair was described and named as a medical problem by Hippocrates prior to 360 B.C. The latter called it alopecia.^5/

He collaborated the prior medical testimony that human hair is "mostly protein" (Tr. 58). The cells at the root of the hair divide very rapidly and form the hair by the cellular secretion called keratin. After describing the process of hair loss -- because of the failure of blood supply -- the doctor stated that it has never been determined why it occurs in male pattern baldness. The hair follicles will continue to function but the hair grows smaller even on a man who appears completely bald.

The doctor testified that male pattern baldness is brought about by excessive stimulation of the hair follicles from male sex hormones and this seems to be programmed by genetic heredity. It affects the entire male population to some extent and about 20 per cent of it to an abnormal degree. Castration -- cutting off the male sex hormone -- would preven man from falling victim to male pattern baldness.

Other causes of baldness would be sickness or disease, the use of drugs, or stress and tension. These causes result in spotty baldness (alopecia areata) but the hair will grow again once the cause, of which balding may be a symptom, is removed or cured.

With reference to amino acids, the doctor states that these are necessary for all facets of human growth. Protein ingested is broken down by the body and carried through the blood as its constituent amino acid. The cells pick it up and build their own protein out of it. Only about five grams of protein a day are necessary and that they are found in the normal diet. Lack of sufficient protein or the body's inability to metabolize it leads to severe sickness and death.

The adenosine phosphate, which the Respondent's ad states is crucial to hair growth, was described by the doctor as the metabolic engine of cells -- a carburetor. It is the fuel in the metabolic process. But, said the doctor, neither the amino acids nor the adenosine triphosphate (phosphate in the ad) can be externally applied usefully. They must result from processes within the body to feed and energize the cells.

A partial remedy of baldness can be effected, according to the doctor, by irritating the scalp with salves, ultra-violet light, slapping or massaging. This increases the blood supply and the hair will respond growing to about an eighth of an inch with very little pigmentation. But a contact irritant is necessary for this and neither amino acid nor vitamin E (contained in Spectron C-33) are contact irritants. The substance would, however, coat a hair strand and penetrate a broken hair thus making it feel thicker. It would resume its normal thickness after a washing. The doctor also testified that neither amino acids or vitamin E would prevent dandruff or itching scalp.

On cross-examination, the doctor testified that he did not know the formula of Spectron C-33 nor whether it works. In his opinion, amino acids cannot be applied topically and be effective. Eventually, some means may be found which could allow the external application of substances which, in time, would neutralize the effects of the male sex hormone. But this was the doctor's postulation and nothing exists today to accomplish this result.

That testimony closed the Complainant's case-in-chief followed by Respondent's motion to dismiss which was denied. It then presented two witnesses whose testimony is analyzed here in inverse order.

A doctor of philosophy in the field of organic chemistry manufactures Spectron C-33 for the Respondent. The thrust of the evidence from this witness was whether Spectron C-33 or some of its constituents could penetrate or be absorbed into the scalp, down to the root. The witness did not know if this was possible although it could be. And whether it would do any good once absorbed was also an unknown, at least to this witness.

On cross-examination, the witness was not permitted to divulge the formula of Spectron C-33 by Respondent's counsel on direction from the Respondent itself. Under no circumstances whatsoever was this formula going to be revealed. Complainant moved to strike the witness's testimony since the cross-examination was severely curtailed by this command from Respondent. That motion was renewed on brief and is granted except to the extent of the witness's opinion on absorption and the body's use of the product.

The Respondent also put on a user of Spectron C-33. With its use, he regrew hair in bald areas. He began losing his hair at age 32 and was divorced from his wife (allegedly an adulteress) about a year later. Three years later, or so, he remarried and has lived happily ever since. He is now 40. He has been using Spectron C-33 for the past two years. He has now what appears to be a normal head of hair.

From this testimony, it appears that balding began with the onslaught of an extremely disturbing and disrupting experience -- the divorce. Following that, there was a period when the witness was single and the hair loss continued. Then there was a remarriage and a happy union. About two years later, Spectron C-33 was used and after three months, the hair began filling in. This sequence of events -- the use of the subject product and the alleviation from stress and worry -- are too close in time to impel a finding that Spectron C-33 alone was responsible for the hair growth. At best, it was the fortunate confluence of circumstances that resulted in hair growth. He did testify to having less of a dandruff problem but the connection between that and the product is not of record.

Based on the foregoing evidence, I find that the representations made in the Respondent's advertisement are factually false. Spectron C-33, regardless of its formula, is not a cure for male pattern baldness; it will not regenerate human tissue necessary for hair growth; it will not grow new hair on the scalp or on bald spots; it will not prevent hair loss; it will thicken the hair by coating it, but not in the advertised sense of more hair in any given area; and it has no affect on dandruff or itching scalp. The medical testimony is overwhelming on these points clearly establishing the prima facie case on this issue no matter what the formula of the product is. At best, Respondent's proof is vague and conjectural. I find that there is no substance known to medical science which can bring about the results advertised by Respondent. Complainant shouldered its burden of proof but Respondent limped along, often tripping, under its burden of going forward with the evidence and did not disrupt, disturb, or rebut any material point established by the Complainant's proof. In large measure, I expect that this resulted from the Respondent's absolute refusal to allow its counsel or witness to delve into the formula of Spectron C-33. I recognize this severe handicap which bound Mr. Stein to the rock. With the evidence, if I were to find no false representations, I would only be guessing.

I conclude that the Respondent is engaged in a scheme or device to obtain money through the mail by means of false representations.

Respondent claims that Lynch v. Blount , 330 F. Supp. 689, affirmed on appeal 404 U.S. 1007, which held that the administrative processing of a complaint under 39 U.S.C. 3005 is proper and constitutional, is factually different than the case at bar. No valid rationale is presented to support this proposition and I am discounting it. Other proposed findings of fact and conclusions of law to the extent embodied herein are adopted. Otherwise, they are rejected as being against the weight of the evidence or inapposite.

I recommend that an order under 39 U.S.C. 3005, in the form attached, be issued.

____________________

1/ By complaint filed December 18, 1972.

2/ By answer filed January 8, 1973.

3/ It is from the vantage of the ordinary, dull, stupid, bald person that the ad must be interpreted. Donaldson v. Read Magazine , 333 U.S. 178; F.T.C. v. Sterling Drug, Inc. , 317 F.2d 669, 674, and G. J. Howard Co. v. Cassidy , 162 F. Supp. 568, 572.

4/ He did the first scalp transplant in California which involves transplanting sections of scalp with hair roots to another part of the scalp. The doctor, a middle-aged man, is in the process of having this done to himself.

5/ "The mange of foxes", American College Dictionary , Random-House, Inc.