In the Matter of the Complaint Against

DAN N. MYERS,
7150 21st Ct. N.W. at
Ft. Lauderdale, Florida 33313

P.S. Docket No. 2/187

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

No appearance for Respondent
Before: William A. Duvall , Chief Administrative Law Judge

INITIAL DECISION

This proceeding was instituted on January 21, 1974, when the complaint was filed on behalf of the General Counsel, Law Department, United States Postal Service, the Complainant.

The complaint charged that Dan N. Myers, 7150 21st Ct. N.W., Fort Lauderdale, Florida, the Respondent, was violating Section 3005 of Title 39, United States Code, in connection with the sale through the mail of a certain product called "Evertone Moisturizing Placenta Creme." The Complainant charged Respondent with making the following representations which are alleged to be materially false as to matters of fact:

"(a) That 'Evertone Moisturizing Placenta Creme' (hereinafter referred to as the 'product') will eliminate or significantly reduce lines and wrinkles;

(b) That the product will significantly diminish sagging, loose, and flabby skin by tightening same;

(c) That the product will eliminate or significantly reduce dryness of skin;

(d) That the product alters the skin's reaction to sunlight, cold, and the aging process, and that such alteration plays a significant part in effecting the results enumerated in subparagraphs (a) through (c), supra ;

(e) That the results enumerated in subparagraphs (a) through (c), supra , will be physiological in nature, rather than a mere cosmetic coverup;

(f) That the formulation of the product differs materially from that of all other creams offered for the results described in subparagraphs (a) through (c), supra ;

(g) That the ultimate effects of the product are materially different in concept from the ultimate effects of any other cream offered for the results described in subparagraphs (a) through (c), supra ."

Service was had on the Respondent and the Respondent filed answer to the complaint on February 11, 1974. The matter came on for hearing, pursuant to notice, on the morning of February 22, 1974, and no appearance was entered on behalf of the Respondent at the hearing. In view of this fact, the proceeding was conducted in accordance with the provisions of 952.11(b) of the Rules of Practice in proceedings relative to false representations, which rules are published in 39 C.F.R. Part 952. This cited section of the rules provides that if the Respondent files an answer, but fails to appear at the hearing, the presiding officer shall receive the Complainant's evidence and render an initial decision.

The advertisement of the product and the use of the mail in the sale of the product are established by Exhibits 1 through 7, consisting of an advertising circular sent through the mail by Respondent soliciting orders for Evertone Moisturizing Placenta Creme, a test order placed by the investigating Postal Inspector, and the product mailed by Respondent in response to an order and the required remittance.^1/

Charge 2(a) of the complaint - that the Evertone Moisturizing Placenta Creme will eliminate or significantly reduce lines or wrinkles - is taken actually from the entire ad, but there are

The charge in paragraph 2(b) of the complaint - that the product will significantly diminish sagging, loose and flabby skin by tightening same - is based on language that appears on the same seventh line where it says, "See sagging, loose, flabby skin tighten up."

Paragraph 2(c) of the complaint - that the product will eliminate, or significantly reduce, dryness of skin - is based on language that appears in more than one place. One of the more prominent places where such language is used is the third line of the heading of Appendix I, Part A, in bold capital letters where reference is made to the product as: "A NEW ADVANCE AGAINST DRY, WRINKLES SKIN ".

Paragraph 2(d) of the complaint, in which it is charged that the Respondent falsely represents that the product alters the skin's reaction to sunlight, cold and the aging process, and that such alteration plays a significant part in effecting the results described in charges 2(a) through 2(c), appears approximately 5 or 6 times below the references to wrinkles and flabby skin. The promoter refers to certain substance which effected a "change of reactivity by their stimulative power," which appears to be an attempt to medically say that it's going to alter the skin's reaction.

The charge stated in paragraph 2(e) of the complaint - that the results enumerated in subparagraphs (a) through (c) will be physiological rather than mere coverup - is based on the language, again, in Appendix I, Part A, which reads as follows: "Many people with various types of skin, wrinkles and lines were reduced substantially -- some cases after only a week." By this language Respondent suggests that the cream has a physiological effect.

Paragraphs 2(f) and 2(g) of the complaint are based upon the language in the third line of the heading of Appendix I, Part A where, in bold capital letters, reference is made to a "NEW ADVANCE AGAINST DRY SKIN, WRINKLED SKIN."

Considering the statements in Respondent's advertisement "in the light of the effect [they] would most probably produce on ordinary minds" it is apparent, and it is so found, that Respondent does make in its advertising material the representations attributed to it in the complaint in this case. ( Donaldson v. Read Magazine , 333 U.S.178, 189)

Dr. Vincent F. Cordaro, a medical doctor who is qualified to give testimony concerning the field of medicine involved in this case, was called by the Complainant as an expert medical witness.

Dr. Cordaro testified that lines and wrinkles are sometimes found in people who spend a lot of time in the open because of their squinting from the rays of the sun. In the majority of cases, however, lines and wrinkles are caused by the aging process, in which there is a loss of elasticity in tissue.

The treatments of choice by the medical profession for the conditions of wrinkling and lines are skin abrasion, injection of silicones and plastic surgery. The same treatments are employed for conditions such as loose, sagging or flabby skin. None of these treatments produces permanent results.

Dry skin is, as the name implies, the dehydration of the skin and it is caused by too much sun, wind, or cold and by aging. This condition is treated by increasing the hydration of the skin, or by recommending that the patient avoid too much sun, wind or cold. Under favorable circumstances, the condition of dry skin can be alleviated.

The cream sold by Respondent is composed of ingredients found in ordinary cosmetic creams. Although the word "Placenta" is part of the name of this cream, there are no hormone-type materials in the product insofar as its chemical analysis revealed (Tr. 11). The cream sold by Respondent could have the effect of "plumping out" very fine lines, but it would not eliminate wrinkles. Any effect it might have on lines and wrinkles would be temporary - a matter of hours. Insofar as dry skin is concerned, the cream would add some moisture temporarily for the time the cream remained on the skin - again a matter of hours.

Based on the evidence in this record I make the following findings of fact;

1. The Respondent is engaged in the sale of a product called Evertone Moisturizing Placenta Creme;

2. Respondent solicits sales of the product by means of advertising circulars sent through the mail;

3. Upon receipt of the required remittance, Respondent sends the product to remitters through the United States mail;

4. In its advertising material Respondent makes, or makes in substance, the representations set forth in subparagraphs (a) through g) of paragraph 2 of the complaint filed herein; and

5. The representations set forth in subparagraphs (a) through (g) of paragraph 2 of the complaint and made by Respondent in regard to the product are materially false as a matter of fact.

CONCLUSION OF LAW

Respondent herein is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representation.

An order as provided by Section 3005 of Title 39, United States Code, should be issued against his Respondent.

1/ Attached to this decision as Appendix I is a copy of the advertising circular upon which the complaint is based. specific references to lines and wrinkles. For example, subpart A of Appendix I, which is the first page of the advertisement, the seventh line down, contains the following language in bold print: "See wrinkles and lines go away]" And, as previously indicated, the entire thrust of the ad does suggest the reduction of lines and wrinkles.