In the Matter of the Complaint Against

MAGIC MOLD, INC.
10 Taylor Street at
Freeport, New York 11520

P.S. Docket No. 2/115;

APPEARANCES:
Daniel S. Greenberg, Esq.
Law Department
United States Postal Service
Washington, D.C. 20260
for Complainant

Jerold W. Dorfman, Esq.
Friend & Dorfman
747 Third Avenue
New York, New York 10017
for Respondent

POSTAL SERVICE DECISION

This proceeding was instituted under 39 U.S.C. 3005 by the filing of a complaint by the General Counsel in accordance with § 952.5 of the applicable Rules of Practice 1/ charging that Respondent is engaged in obtaining remittances through the mail by means of false representations, set out in the complaint, in connection with marketing its Anatone Vitamin E. Cream and Spandex Band. It alleges that in the course of marketing the products involved Respondent by means of the advertisement attached to the complaint "and in similar matter" falsely represents "directly or indirectly, by means of affirmative statement, implication, or omission, ***:

"(a) That use as directed of the Anatone Vitamin E Cream and Spandex band (hereinafter referred to collectively as the 'program') will tighten sagging tissues in the lower face, chin, and neck;

"(b) That use of the program as directed will tone the muscles of the lower face;

"(c) That the effects described in subparagraphs (a) and (b), supra, will eliminate or significantly reduce double chins and neck wrinkles;

"(d) That the effects described in subparagraphs (a) through (c), inclusive, will occur after following the program for two weeks".

Respondent denies the essential allegations of the complaint.

Following a hearing held on September 26, 1973, the Chief Administrative Law Judge issued an oral Initial Decision, subsequently reduced to writing, in which he upheld the charges. Respondent appeals.

Prior to the hearing Respondent moved to dismiss the complaint contending that it was no longer using the advertisement attached to the complaint (afterwards in evidence as Complainant's Exhibit C-1) and was using a different advertisement afterwards received in evidence as C-3. The motion was denied. At the hearing, C-3 was received in evidence over Respondent's objection that it was beyond the scope of the complaint. Respondent contended then and contends now that C-3 should not have been considered because it asserts C-3 is not similar to C-1, the advertisement annexed to the complaint.

Respondent concedes Exhibit C-2, 2/ a catalogue of Respondent, does contain an advertisement similar to C-1. Respondent further contends that because it alleges that the use of C-1 was discontinued prior to the filing of the complaint, Respondent can not on the basis of its prior use of that advertisement be held to "be engaged" in the activities complained of.

Respondent, however, does not allege that the use of C-2 has been discontinued or that it is not continuing to receive orders therefrom. Thus, even if Respondent's allegation that it has discontinued the use of C-1 is accepted, C-2 would support the conclusion that the representations in the words of C-1 continue in C-2 and that the Respondent thereby "is engaged". The matter, however, need not stand there. As may be seen from the copies of C-1 and C-3 annexed to this decision for ready reference, the language in the two advertisements differs, particularly in that C-3 makes its representations by indirection, rather than explicitly as does C-1. Nevertheless, there is a basic similarity in the two. Both use the same general format and the same pictures to convey essentially the same message. Under the circumstances of this proceeding, C-3 comes within the ambit of the complaint as "similar matter" to C-1. ^3/ As such it was properly received in evidence and considered.

Respondent concedes that it makes the representations charged in C-1 and C-2. For reasons indicated above, the determination that Respondent makes the representations can stand on that basis. For the sale of completeness, however, consideration has been given to Respondent's exception to the finding that the representations are also made in C-3. That advertisement consists of pictures of the head and neck of a man and a woman facing each other. The picture show prominently that each is wearing a chin and neck band. The text of the advertisement states:

"New] The Anatone Isometric Chin Strap now covers areas of Neck, Jowls & Chin]

Each Chin Strap Comes with Vitamin E Cream & Free Exercise Booklet]

"The beauty secret of generations of women . . . passed on from mother to daughter. Now the Anatone Isometric Chin Strap is brought up to date . . . made modern with the new wonder fabric SPANDEX. Feel the Isometric massaging action of fine Spandex elastic. Try our two week program. Wear it for 45 minutes every day while you work, play or watch TV. Covers areas of double chin, neck wrinkles and chin jowls. Fully adjustable. One size fits all. For him. For her. Satisfaction Guaranteed."

Particular attention should be given to the statements "Feel the Isometric massaging action" and "Covers areas of double chin, neck wrinkles and chin jowls." The latter sentence represents that Respondent's product will have a beneficial effect on the lower face, chin and neck, including neck wrinkles, the areas referred to in the complaint. Respondent would have us believe that C-3 has no message as to the nature of the benefit to be derived by purchasers of its product. But it is unreasonable to believe Respondent does not intend the advertisement to promise particular benefits to users. Obviously the message conveyed is that the product, among other things, will eliminate or significantly reduce double chins and neck wrinkles. Further, the reference to chin jowls and neck wrinkles represents that the sagging tissues in the lower face, chin and neck that cause the conditions mentioned in the advertisement will be tightened. Thus, the representations charged in the complaint are made not only in C-1 and C-2, but in C-3 as well.

Respondent excepts to several of the specific findings in the Initial Decision on the lack of utility of Respondent's product. Those exceptions are plainly specious and are, therefore, denied. In addition, Respondent contends the findings in the Initial Decision on that question were predicated upon the erroneous assumption that the burden was on Respondent to establish that its product lives up to the advertisement representations. In support thereof it quotes the following sentence in the Initial Decision:

"In short, there is no medical testimony in this record which in any way tends to support the claims made by the Respondent for the product."

Of course, Respondent is correct, as I am sure the Chief Administrative Law Judge would agree, that the burden of proving the falsity of the representations is on Complainant and Respondent is not required in these proceedings to establish the truthfulness of its advertisement representations. On the other hand, it is unreasonable to conclude that the statement quoted above, except when ripped from the context in which it appears, should be construed as saying the Chief Administrative Law Judge had found for Complainant on the issue involved because

Respondent had not carried the burden of proof.

As part of the Initial Decision, the Chief Administrative Law Judge reviewed the evidence presented by Complainant on the issue of efficacy, (Respondent presented none), and made specific findings based on that testimony. In the paragraph next preceding the sentence quoted by Respondent, the Administrative Law Judge addressed himself to the contention made by Respondent's Counsel a few minutes before ^4/ that the dermatologist had indicated that the product might have the beneficial effect claimed. The sentence is obviously only a statement of the conclusion that there was nothing in the record to cast doubt on the evidence previously used by the judge as a basis for his findings earlier in the Initial Decision.

A review of the record shows that Complainant has made out his case in that the uncontroverted evidence shows the claims to be false. There is no controverting evidence to be balanced on the other side. The representations charged in the complaint are made and are false.

Conclusion

Respondent's exceptions are denied and the Initial Decision is affirmed. Respondent is found to be engaged in conducting a scheme or device for obtaining money through the mail by means of false representations within the meaning of 39 U.S.C. 3005. A remedial order is being issued contemporaneously with this decision.

02/06/74

Wenchel, Adam G.

____________________

1/ The Rules of Practice are found in 39 C.F.R. Part 952.

2/ Respondent does not contend on appeal that C-2 should not have been received and considered.

3/ See to the same effect, Postal Service Decision, Party Supply, Inc., P.S. Docket No. 2/21(1973). While that fact would not bring a clearly dissimilar advertisement within the scope of the complaint, Complainant's reliance on C-3 could not have surprised Respondent. Respondent brought the C-3 advertisement to the Chief Administrative Law Judge's attention in its motion to dismiss filed 30 days before the hearing. Complainant's response thereto directly stated that C-3 makes the same claims as C-1. In addition Complainant included copies of exhibits he proposed to rely on, including C-3, in a document mailed to Respondent's Counsel eight days before the hearing.

4/ The argument appears on page 53 of the transcript. The Initial Decision commences on page 55 and the sentence quoted is on page 62.